Unless otherwise specified in a binding written contract between the Customer and a duly authorized representative of Davidson Transportation Marketing, Inc. (MC# 192848) and/or Davidson Transportation Logistics, LLC (MC# 1144567) (collectively referred to herein as “Davidson Transportation”), as consideration for the use of Davidson Transportations’ services and/or the advancement of credit, Customer and its employees, contractors, agents, representatives, affiliates, parents, and subsidiaries (collectively: “Customer”) 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 executed by the Customer, any ancillary shipping documents, statements of work and letter agreements, and are binding upon the Customer. A copy of the Terms and Conditions can be found online at https://www.dtmtrans.com and is available upon written request.
Customer 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 Customer and all services provided by Davidson Transportation. Davidson Transportation reserves the right to alter or amend the Terms and Conditions, and Customer agrees that Davidson Transportations’ provision of services to Customer after any such changes constitutes sufficient consideration for them. Customer 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 Davidson Transportations’ liability as provided herein.
I. Payment
A. Davidson Transportation must receive payment of all charges within thirty (30) days from the date Customer receives an invoice from Davidson Transportation. For purposes of calculating the payment’s due date, Customer 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, Customer agrees that interest shall accrue daily and be payable to Davidson Transportation 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 Customer, whether on account of overcharges, cargo loss, damages, amounts owed by Davidson Transportation, or otherwise. All disputed charges shall be reconciled separately with Davidson Transportation or the non-affiliated broker or carrier. However, if Davidson Transportation 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 Davidson Transportation. This paragraph clarifies and supersedes any conflicting language that may be contained in invoices, shipping documents, or carrier tariffs.
B. The Customer 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 Davidson Transportations’ attorney fees and legal costs allocable to this shipment and/or all disputes related thereto. Customer agrees to pay any convenience fees charged by Davidson Transportation or its parents or affiliates related to the payment of services via credit card or other electronic payment methods. Davidson Transportation shall have a lien on the shipment for all sums due it relating to this shipment or any other amounts owed by Customer. Davidson Transportation reserves the right to amend or adjust the original quoted amount or re-invoice Customer 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 Customer to perform the pick-up, transportation and delivery functions therein. If Davidson Transportation accepts payment by credit card or electronic funds in advance of the shipment (“Pre-Pay”), Customer 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 Customer’s credit card or bank account. Davidson Transportation reserves the right, at its sole discretion, to refuse any shipment at any time.
II. Limitation of Liability and Handling of Broker.
A. As the Broker, Davidson Transportation has no responsibility, liability or involvement in the issuance of insurance, the denial of insurance, or in the payment of claims. Davidson Transportation does not carry insurance for Customer. Davidson Transportation is not liable for cargo losses or claims, and Customer shall not pursue Davidson Transportation or any of its employees, agents, representatives, affiliates, parents, or subsidiaries (collectively: “Davidson Transportation”) in relation to the same. See 49 C.F.R. 370 et seq., as amended. Any insurance purchased for the benefit of Customer is purchased directly by the actual carrier of the freight. Customer 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 Davidson Transportation. Unless Customer 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.
B. Davidson Transportation is not liable for any loss, late-delivery, non-delivery, or consequential damages caused by the act, default or omission of the carrier, Customer or any other party who claims interest in the shipment, or caused by the nature of the shipment or any defect thereof. Davidson Transportation is not liable for losses, late-delivery or non-delivery caused by violation(s) by the Customer 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 Davidson Transportation 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. Davidson Transportation 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. Davidson Transportation is not liable for failure to comply with delivery or other instructions from Customer or for the acts or omissions of any person other than employees of Davidson Transportation.
C. Subject to any applicable limitations of liability or defenses, Davidson Transportation shall only be liable for loss, damage, mis-delivery or non-delivery caused by Davidson Transportations’ own gross negligence. In such event, Davidson Transportations’ liability shall be limited to the fees that Davidson Transportation earned with respect to the subject shipment. Davidson Transportation 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. Davidson Transportation cannot guarantee delivery by any specific time or date. In any event, Davidson Transportation shall not be liable for any special, punitive, incidental or consequential damages, including but not limited to business interruptions and/or loss of profits or income, whether or not Davidson Transportation had knowledge that such damages might be incurred.
D. Notwithstanding anything in these Terms and Conditions to the contrary, Customer acknowledges and agrees that Davidson Transportation and the transporting carrier(s) will not be held liable for cargo loss, damage or delay occurring or arising in Mexico and if it is unclear whether such a claim arose in Mexico there will be a rebuttable presumption that loss, damage or delay arose in Mexico unless rebutted by Customer by clear and convincing evidence.
In the event of a loss, Davidson Transportation will make reasonable efforts to provide Customer with the information necessary for Customer 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 Davidson Transportation, to help ensure timely resolution.
III. Managed Transportation
A. Claims. It is understood and agreed that the Davidson Transportation is not a motor carrier and that Davidson Transportation shall not be held liable for loss, damage, or delay in the transportation of Customer’s property unless caused by Davidson Transportations’ negligent acts or omissions in the performance of this Agreement. Davidson Transportation shall, however, assist Customer in the filing and/or processing of claims with the transporting carrier. Customer must file claims for cargo loss or damage with Davidson Transportation within one hundred eighty (180) days from the date of such loss, shortage or damage, which for purposes of these Terms and Conditions shall be the delivery date or, in the event of non-delivery, the scheduled delivery date. Customer must file any civil action in a court of law (or commence arbitration) within two (2) years from the date the carrier or Davidson Transportation provides written notice to Davidson Transportation that the carrier has disallowed any part of the claim in the notice. If payment of a claim is made by Davidson Transportation to Customer, Customer automatically assigns its rights and interest in the claim to Davidson Transportation.
In any event, Customer’s recovery for cargo related damages shall not exceed $100,000, unless Davidson Transportation is notified by Customer of the increased value prior to shipment pickup and with reasonable advance notice to allow Davidson Transportation and/or the carrier to procure additional insurance coverage, and such coverage has been confirmed by Davidson Transportation as procured.
B. Incorporation. Unless there is an specific conflict with the terms in this section, the terms and conditions outside of this Section IV shall be incorporated into this Section IV and made a part hereof as though fully set forth herein.
IV. Independent Contractor
Davidson Transportations’ relationship to Customer is that of an independent contractor, not an agent or employee, and nothing in these Terms & Conditions shall be construed as establishing an employment relationship, partnership, or joint venture between the parties.
V. Insurance
Customer shall maintain in full force and effect, policies of insurance, or qualified self-insurance to cover the following:i. Comprehensive general or commercial liability, including coverage for (i) contractual liability, (ii) property damage, and (iii) personal injury (including bodily injury). The limits for such coverage shall be no less than $1,000,000 combined single limit for personal injury (including bodily injury) and property damage;ii. Statutory worker’s compensation coverage meeting all state and local requirements;iii. Employer’s liability coverage with limits no less than $1,000,000; and,iv. Any other insurance commonly procured in the industry for which Customer is engaged and any other insurance Customer is required by law to maintain.
These Terms and Conditions may be amended to reflect higher levels of insurance coverage agreed to be the parties from time to time. Customer agrees to furnish Davidson Transportation certificates showing evidence of such insurance coverage or proof evidencing said self-insurance upon request. Davidson Transportation shall be named as an additional insured on the comprehensive general or commercial liability policy. All coverages shall have an endorsement providing that they shall not be cancelled, altered, or amended without 30 days prior written notice having been furnished to Davidson Transportation.
VI. 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 Davidson Transportation, or the use of any bill of lading not authorized or issued by Davidson Transportation shall void Davidson Transportations’ obligations, if any, to make any payments relating to the shipment and void all rate quotes. If the Customer 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, Customer hereby instructs Davidson Transportation, where permitted by law, to complete, correct or replace the documents for them at the expense of Customer. However, Davidson Transportation is not obligated to do so. If a substitute form of bill of lading is needed to complete delivery of the shipment and Davidson Transportation completes that document, the terms of the substitute completed by Davidson Transportation will govern. Davidson Transportation is not liable to Customer or to any other person for any actions taken on behalf of Customer under this provision.
VII. 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 Davidson Transportation shall be governed by Georgia state law and applicable Federal law, and exclusive jurisdiction for such Proceedings will lie in the state or federal courts serving Georgia.
VIII. Indemnification
Customer shall indemnify Davidson Transportation for any loss, damage, injury, liability, expense, cost, including reasonable attorney’s fees, fines, penalties, actions and claims, including, but not limited to, claims for injuries to persons (including death), for damage to property, and for damage to third parties arising out of Customer’s negligence, wrongful act or omission, failure to comply with the law, and failure to comply with the terms of this Agreement.
IX. Customer’s Warranties
Customer 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. Customer 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. Davidson Transportation assumes no liability to Customer or to any other person for any loss or expense due to the failure of Customer to comply with this provision. Any individual or entity acting on behalf of Customer in scheduling shipments hereunder warrants that it has the right to act on behalf of Customer and the right to legally bind Customer.
By executing Davidson Transportations’ credit application and/or doing business with Davidson Transportation, Customer attests to its solvency and ability and willingness to pay Davidson Transportations’ invoices in accordance with these Terms and Conditions. Customer 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 Customer and therefore binds Customer to the Terms and Conditions set forth herein.