Unless otherwise specified in a binding executed contract between the Applicant and a duly authorized representative of Celadon Logistics Services, Inc. (“Celadon Logistics”), as consideration for the use of Celadon Logistics’ services and/or the advancement of credit, Applicant and its employees, contractors, agents, representatives, affiliates, parents, and subsidiaries (collectively: “Applicant”) hereby agree to the terms and conditions set forth herein (collectively: the “Terms and Conditions”). The Terms and Conditions are expressly incorporated into the credit application signed by the Applicant and are binding upon the Applicant. A copy of the Terms and Conditions can be found online at www.celadonlogistics.com and is available upon written request.
Applicant agrees to the Terms and Conditions in their entirety, and no agent or employee of the parties may change, alter, or in any way transform them. The Terms and Conditions shall apply to all shipments by Applicant and all services provided by Celadon Logistics. Celadon Logistics reserves the right to alter or amend the Terms and Conditions, and Applicant agrees that Celadon Logistics’ provision of services to Applicant after any such changes constitutes sufficient consideration for them. Applicant shall review the Terms and Conditions on a periodic basis such that it stays informed of any changes.
The parties hereby waive 49 U.S.C. 14706, as provided for under 49 U.S.C. 14101, to the extent necessary to limit Celadon’s liability as provided herein.
A. Celadon Logistics must receive payment of all charges within thirty (30) days from the date Applicant receives an invoice from Celadon Logistics. For purposes of calculating the payment’s due date, Applicant will be considered to be in receipt of the invoice upon the earliest of the following: (i) confirmation of receipt by one of the parties; (ii) successful electronic transmission of the invoice; (iii) if sent by mail, after three (3) days have passed from the date listed on the invoice as the invoice date. In the event the payment is not received within thirty (30) days, Applicant agrees that interest shall accrue daily and be payable to Celadon Logistics at the interest rate of 1.5% per month (18% per annum), together with any and all collection costs, including attorney fees. The invoice shall be paid in full, and shall not be subject to any deduction, counterclaim, delay in payment, or offset by Applicant, whether on account of overcharges, cargo loss, damages, amounts owed by Celadon Logistics, or otherwise. All disputed charges shall be reconciled separately with Celadon Logistics or the non-affiliated broker or carrier. However, if Celadon Logistics does not receive a written dispute within thirty (30) business days after the date listed on the invoice as the invoice date, the disputed charge will be denied by Celadon Logistics. This paragraph clarifies and supersedes any conflicting language that may be contained in invoices, shipping documents, or carrier tariffs.
B. The Applicant is liable for all charges payable on account of its shipment, including but not limited to transportation, fuel and other applicable accessorial charges, including all adjustments issued by the carrier(s) or service provider after the shipment, and all duties, customs assessments, governmental penalties and fines, taxes, and Celadon’s attorney fees and legal costs allocable to this shipment and/or all disputes related thereto. Applicant agrees to pay any convenience fees charged by Celadon Logistics or its parents or affiliates related to the payment of services via credit card or other electronic payment methods. Celadon Logistics shall have a lien on the shipment for all sums due it relating to this shipment or any other amounts owed by Applicant. Celadon Logistics reserves the right to amend or adjust the original quoted amount or re-invoice Applicant if the original quoted amount was based upon incorrect information provided at the time of the original quote or if additional services by the carrier or service provider were required or otherwise authorized by Applicant to perform the pick-up, transportation and delivery functions therein. If Celadon Logistics accepts payment by credit card or electronic funds in advance of the shipment (“Pre-Pay”), Applicant agrees it will be responsible for all charges payable, including any adjustments, on account of such shipment. These charges and adjustments, if any, may be automatically debited from the Applicant’s credit card or bank account. Celadon Logistics reserves the right, at its sole discretion, to refuse any shipment at any time.
II. Limitation of Liability and Handling of Claims
A. Applicant understands and agrees that Celadon Logistics is not a motor carrier or an employee or agent of a motor carrier. It does not physically transport freight. Celadon Logistics is an authorized Broker and Freight Forwarder, as those terms are defined in 49 U.S.C. 13102. Applicant authorizes Celadon Logistics to act in its capacity as a Broker, and arrange, or offer to arrange, the transportation of freight by an authorized motor carrier. Applicant also authorizes Celadon Logistics to act in its capacity as a Freight Forwarder, and provide services relating to the assembly and/or consolidation of shipments and their transportation by a carrier. Unless Applicant is notified in writing that Celadon Logistics intends to act in its capacity as a Freight Forwarder relative to Applicant’s shipment, Applicant understands and agrees that Celadon Logistics will act solely in its capacity as a Broker.
B. As the Broker, Celadon Logistics has no responsibility, liability or involvement in the issuance of insurance, the denial of insurance, or in the payment of claims. Celadon Logistics does not carry insurance for Applicant. Celadon Logistics is not liable for cargo losses or claims, and Applicant shall not pursue Celadon Logistics or any of its employees, agents, representatives, affiliates, parents, or subsidiaries (collectively: “Celadon”) in relation to the same. See 49 C.F.R. 370 et seq., as amended. Any insurance purchased for the benefit of Applicant is purchased directly by the actual carrier of the freight. Applicant shall pursue the actual carrier for its claims and acknowledges that its losses shall be subject to that carrier’s limitation of liability provisions (if any), which may be contained in the carrier’s tariff, terms and conditions, or contract with Celadon. Unless Applicant negotiates for a higher value that is agreed to in a signed writing by an authorized representative of Broker, all load tenders to Broker shall be considered to have a value of $100,000 or less for purposes of carrier insurance.
C. Celadon Logistics is not liable for any loss, late-delivery, non-delivery, or consequential damages caused by the act, default or omission of the carrier, Applicant or any other party who claims interest in the shipment, or caused by the nature of the shipment or any defect thereof. Celadon Logistics is not liable for losses, late-delivery or non-delivery caused by violation(s) by the Applicant of any provisions contained in a bill of lading, contract, these Terms and Conditions, or the carrier’s tariff or terms and conditions, nor will Celadon Logistics be liable for improper or insufficient packing, securing, marking or addressing, or for failure to observe any of the rules relating to shipments not acceptable for transportation or shipments acceptable only under certain conditions. Celadon Logistics is not liable for losses, late delivery or non-delivery caused by the acts of God, perils of the air, public enemies, public authorities, acts or omissions of Customs or quarantine officials, war, riots, strikes, labor disputes, weather conditions or mechanical delay or failure of aircraft or other equipment. Celadon Logistics is not liable for failure to comply with delivery or other instructions from Applicant or for the acts or omissions of any person other than employees of Celadon Logistics.
D. Subject to any applicable limitations of liability or defenses, Celadon Logistics shall only be liable for loss, damage, mis-delivery or non-delivery caused by Celadon Logistics' own gross negligence. In such event, Celadon Logistics' liability shall be limited to the fees that Celadon Logistics earned with respect to the subject shipment. Celadon Logistics makes no warranties, express or implied, including, without limitation, warranties of merchantability or fitness for a particular purpose, with regard to deliveries or with regard to its website, information provided on its website or services related to transactions conducted on its website. Celadon Logistics cannot guarantee delivery by any specific time or date. In any event, Celadon Logistics shall not be liable for any special, punitive, incidental or consequential damages, including but not limited to loss of profits or income, whether or not Celadon Logistics had knowledge that such damages might be incurred.
In the event of a loss, Celadon Logistics will make reasonable efforts to provide Applicant with the information necessary for Applicant to file a claim with the transporting motor carrier or unaffiliated service provider. All cargo claims should be filed immediately and directly with the actual carrier or responsible party, with contemporaneous notice to Celadon Logistics, to help ensure timely resolution.
III. Freight Forwarder Liability and Handling of Claims
A. In the event Celadon Logistics notifies Applicant that it intends to act in its capacity as a Freight Forwarder relative to Applicant’s shipment, then the parties engaged by it will be primarily liable for cargo losses attributable to their conduct. In the event that a claim is made against Celadon Logistics as a Freight Forwarder and accepted, then such claims shall be governed by 49 C.F.R. 370 et seq., as amended, except as provided herein.
B. Celadon Logistics is not liable for any loss, late-delivery, non-delivery, or consequential damages caused by the act, default or omission of the Applicant or any other party who claims interest in the shipment, or caused by the nature of the shipment or any defect thereof. Celadon Logistics is not liable for losses, late-delivery or non-delivery caused by violation(s) by the Applicant of any provisions contained in a bill of lading, contract, these Terms and Conditions, or the carrier’s tariff or terms and conditions, nor will Celadon Logistics be liable for improper or insufficient packing, securing, marking or addressing, or for failure to observe any of the rules relating to shipments not acceptable for transportation or shipments acceptable only under certain conditions. Celadon Logistics is not liable for losses, late delivery or non-delivery caused by the acts of God, perils of the air, public enemies, public authorities, acts or omissions of Customs or quarantine officials, war, riots, strikes, labor disputes, weather conditions, mechanical delay or failure of aircraft or other equipment, or any other act beyond Celadon Logistics’ control.
C. A loss or damage claim must be submitted in writing with all required documentation within 9 months from the delivery date in a damage claim, or within 9 months of the bill of lading delivery date in the event of a loss. Claims submitted after this period will not be accepted under any circumstances. The time limits for filing civil actions for collection of cargo claims shall be two (2) years. Celadon Logistics’ cargo liability is limited to $2 per pound, with a maximum liability not to exceed $2,500 per qualifying shipment. If approved, Celadon Logistics’ maximum liability for parcel shipments is not to exceed $100 per qualifying shipment.
D. If the loss or damage is apparent at delivery, the consignee must note such loss or damage information, with sufficient detail, on the bill of lading or delivery receipt. At delivery, the consignee must: (i) check each handling unit for visible signs of damage; (ii) open any shipments that show signs of loss or damage while the driver is present; (iii) record an exact, detailed description of the results of the examination on the delivery receipt; and (iv) have the driver sign the consignee’s copy of the delivery receipt. These notated loss or damage rules also apply to drop trailer deliveries. Paperwork is to be signed after offloading of trailer. Terms such as “subject to inspection,” “subject to count,” and “damaged” are not acceptable on a delivery receipt as notations of damage or loss and will not substantiate a claim as they are too vague and unclear.
E. A claim for loss or damage that is concealed at the time of delivery will only be considered if the claimant provides conclusive evidence that the damage or shortage occurred while the shipment was in the possession of Celadon Logistics. Furthermore, concealed loss or damage claims must be reported to Celadon Logistics in writing within 72 hours of delivery and a request for an inspection must be made at that time. All material must be maintained in the original shipping container and in the same condition it was in when the loss or damage was discovered. In a concealed damage or loss claim, the claimant has the burden of proof. Claimant must prove that Celadon caused the damage, not other parties who handled the goods. Any shipment tendered to Celadon Logistics on a plastic shrink wrapped skid shall be signed for as “STC” said to contain. In addition to other limitations of liability contained herein, when a plastic shrink wrapped skid is delivered intact at final destination, Celadon Logistics shall not be held liable for loss or damage discovered therein, either at delivery or after delivery has been performed.
Celadon also considers these factors in a concealed damage or loss claim:
· Nature of the goods
· Adequacy of packaging
· Movement before pick-up or after delivery
· Retention and condition of the original containers
F. Claimants have the legal obligation to mitigate claims and reduce the damage as much as possible. This may be accomplished by:
· Repair – Claims for repair should reflect only the claimant’s cost for parts and labor.
· Sorting – Claims should only be filed after damaged and undamaged pieces have been sorted through to reduce the quantity being claimed.
· Sale through the most profitable means available (the claim would then reflect the difference of the claim amount and the amount recovered through sale).
· Any other means resulting in a reduction in the claim equal to or greater than that which the carrier may have obtained through salvage of the goods.
G. Celadon Logistics will make every effort to meet our published transit times for shipments scheduled for transportation. In the event that the transportation of an individual shipment does not meet our published transit times, however, Celadon Logistics will not be liable to Applicant, consignor, consignee or their agents for any and all direct, special, or incidental damages or costs claimed to result from this failure to meet published transit times included, but not limited to, plant shut downs, loss of sales and/or loss of profits.
The fees charged by Celadon Logistics, including freight charges, shall not be subject to deduction, setoff, or delay in payment by Applicant due to a claim of loss or damage. The filing of a claim does not relieve Applicant or its consignee or intermediary for payment of freight charges. Claims and freight charges are separate transactions. Without payment of freight charges, the transportation contract has not been completed and a claim cannot be considered or paid.
IV. Bills of Lading
Bills of lading shall be considered non-negotiable and shall act as a receipt only. Any unauthorized alteration or use of bills of lading or tendering of shipments to any carrier other than that designated by Celadon Logistics, or the use of any bill of lading not authorized or issued by Celadon Logistics shall void Celadon Logistics’ obligations, if any, to make any payments relating to the shipment and void all rate quotes. If the Applicant or its affiliates do not complete all the documents required for carriage, or if the documents which they submit are not appropriate for the services, pick up or destination requested, Applicant hereby instructs Celadon Logistics, where permitted by law, to complete, correct or replace the documents for them at the expense of Applicant. However, Celadon Logistics is not obligated to do so. If a substitute form of bill of lading is needed to complete delivery of the shipment and Celadon Logistics completes that document, the terms of the substitute completed by Celadon Logistics will govern. Celadon Logistics is not liable to Applicant or to any other person for any actions taken on behalf of Applicant under this provision.
V. Forum Selection and Choice of Law
Any claim, dispute or litigation (collectively referred to as: “Proceedings”) relating to these Terms and Conditions or services offered or provided by Celadon Logistics shall be governed by Indiana state law and applicable Federal law, and exclusive jurisdiction for such Proceedings will lie in the state or federal courts serving Indiana.
VI. Applicant’s Warranties
Applicant is responsible for and warrants its compliance with all applicable laws, rules, and regulations including but not limited to customs laws, import and export laws and governmental regulation of any country to, from, through or over which the shipment may be carried. Applicant agrees to furnish such information and complete and attach to the bill of lading or similar shipping document such documents as are necessary to comply with such laws, rules and regulations. Celadon Logistics assumes no liability to Applicant or to any other person for any loss or expense due to the failure of Applicant to comply with this provision. Any individual or entity acting on behalf of Applicant in scheduling shipments hereunder warrants that it has the right to act on behalf of Applicant and the right to legally bind Applicant.
By executing Celadon Logistics’ credit application and doing business with Celadon Logistics, Applicant attests to its solvency and ability and willingness to pay Celadon Logistics’ invoices in accordance with these Terms and Conditions. Applicant also agrees that its employee or representative who is agreeing to these Terms and Conditions and/or completes the credit application has been duly authorized to do so by Applicant and therefore binds Applicant to the Terms and Conditions set forth herein.