These terms govern the services RK Logistics provides to its customers.
“Company” shall mean RK Logistics Group, Inc. its subsidiaries, and affiliated entities under common controlling ownership (but does not include its parent companies or owners).
“Conditions” shall mean all the terms and conditions of contract as stated herein.
“Customer” shall mean the person for which the Company is rendering service (including the customer identified in any credit application submitted to Company), as well as it’s agent and/or representative, including but not limited to, shippers, owners, notify parties, importers, exporters, carriers, secured parties, warehousemen, buyers and/or seller, Customer’s agents, insurers and underwriters, break-bulk agents, consignee, etc.
“Service Providers” shall include, but not be limited to, the following: carriers (including via motor, rail, air and ocean), freight forwarders, property brokers, Indirect Air Carriers, NVOCCs, Ocean Freight Forwarders, customs brokers, agents, warehousemen and others to which the goods are entrusted.
These Conditions apply to and govern Company’s services except to the limited extent expressly waived in a writing signed by an officer of Company and an officer of Customer.
Any and all other activities of Company in the course of its business including any advice, information or service provided by the Company whether for compensation or not are undertaken subject to, and governed by, these Conditions. In addition, those activities undertaken by Company pursuant to the following documents, if issued by Company with respect to such activities, will also be subject to the terms and conditions of such documents, which such terms and conditions shall apply and govern to the extent of any conflict with the provisions herein: (i) Company’s U.S. domestic and international house airbills relating to the consolidation and carriage of goods by air if and only if Company has named itself as the “Carrier” therein; and (ii) Company’s ocean bill of lading relating to the consolidation and carriage of goods by sea if and only if Company has named itself as the “Carrier” therein; (iii) Company’s warehouse receipt relating to the consolidation and storage of goods in a warehouse owned or operated by Company. The terms and conditions contained in the above listed documents shall apply to the respective services regardless of whether Customer received the document before or after the commencement of those services, and Customer hereby accepts those conditions for the services described in (i)-(iii) above.
Notwithstanding the foregoing, these Conditions shall govern Company’s liability with respect to its undertaking to file or submit any information, in any format, to any government regulatory agency, organization or similar entity on Customer’s behalf and with Customer’s written authorization, whether in conjunction with the activities and pursuant to the terms detailed in Paragraph 2(a)(i)-(iii), above, or whether provided as a separate service by Company, for compensation or not.
The liability of any entity included in the definition of “Company” herein is several and not joint, and in no event will any such entity be responsible for any acts or omissions of any other party, including, but not limited to any other entity included in the definition of “Company”.
Company may, in its discretion and with respect to any given transaction, act as a principal or as the agent of Customer and Customer authorizes Company to do so. Without limiting the situations in which Company may act as principal, Company will act as principal when:
The fact that Company is identified as a “Carrier” in a bill of lading or waybill will not alter the fact that Company’s role is solely that of a non-asset logistics company that does not operate or control any transporting conveyances.
Without limiting that situations in which Company may act as agent, Company will act as agent any time it makes any filing on behalf of Customer with any governmental regulator.
When acting as an agent, Company acts solely on behalf of Customer in engaging the services of Service Providers, which such engagement may be on any terms negotiated with such Service Providers, including, but not limited to, on the usual terms and conditions on which the Service Providers offer services for the carriage, storage, packing, consolidation or handling of any goods, or for any other service in relation to them, thereby establishing a direct contract between Customer and the Service Providers capable of being enforced by Customer as principal, whether or not Customer is identified in such contract. Customer acknowledges that it shall be bound by the terms and conditions of the agreements made by Company with Service Providers, which may contain limitations of liability.
Customer warrants that:
Customer is either the owner or the authorized agent of the owner of the goods and that Customer is authorized to engage Company both on behalf of Customer and as agent for the owner of the goods under these Conditions;
The description and particulars of the goods provided by Customer, including but not limited to their marks, number, weight, volume and quantity, are complete and correct in all respects;
Customer is knowledgeable about its business and matters relating thereto (including the rigors of transportation of its goods) and is able, prepared and willing to use all reasonable methods to cooperate with Company for efficient execution of the services Company provides.
Customer is required to review all documents and declarations prepared and/or filed with any government agency and/or third parties for completeness and accuracy, and will immediately advise Company of any errors, discrepancies, incorrect statements, or omissions on any declaration filed on Customer’s behalf.
The goods are properly marked and suitably packaged for normal handling, including any special handling requested by Customer if applicable, and that the goods have been properly loaded in a suitable transport unit in suitable and good condition to carry the goods;
Customer has verified the weight of the goods destined for transport on steamship lines by using properly calibrated and certified equipment and that Company is entitled to rely on the accuracy of such weight and to endorse such verified weight as agent of Customer.
Any cargo that is hazardous, dangerous, noxious or has any potential to encourage vermin or taint other goods has been packaged, tendered and/or labeled in accordance with applicable governmental or industry rules and regulations and identified as such at the time of Customer’s request for services with respect to such goods and in any event prior to receipt by Company or its subcontractor(s);
The goods do not require insulated, refrigerated, ventilated or other special storage or handling not disclosed to Company at or before the time of Customer’s request for services with respect to such goods;
It is in compliance with all applicable laws and government rules and regulations, and has obtained any and all permits or licenses, related in any way to the transport of its goods, including, but not limited to, the U.S. Foreign Corrupt Practices Act, the U.S. Export Administration Regulations, the International Traffic in Arms Regulations, the U.S. Anti-Boycott regulations, the various U.S. economic sanctions programs administered by the U.S. Treasury’s Office of Foreign Assets Control and any applicable laws or regulations of any country to, from, through or over which goods may be carried; and
In no event will Company have any responsibility for, and Customer will defend, indemnify, and hold Company harmless from, and will pay and reimburse, any charges imposed by third parties with respect to use of equipment in which cargo tendered by, to or on behalf of Customer is or has been laden, or for charges assessed with respect to storage or handling of any such equipment, including, but not limited to, charges assessed by steamship lines, rail carriers, rail terminal operators, marine terminal operators or port authorities. Without limiting the generality of the foregoing, Company shall have no liability for any such charges arising from or related to port congestion, lack of equipment availability, labor shortages, or other situations impacting port or intermodal transportation operations.
If Company has provided Customer with any information regarding the identity of the Service Provider or the Service Provider’s personnel that are scheduled to pick-up a shipment for transportation, Customer will, or if Customer is not the consignor, Customer will require the consignor to, confirm the information prior to tendering a shipment and will not tender if the information of the Service Provider or personnel that arrives to retrieve a shipment is not the same as the information provided by Company. Company will not be liable for any loss or damage arising from or related to the tendering party’s failure to verify the Service Provider or personnel information.
Company relies on the correctness of all information provided by or on behalf of Customer whether in written or electronic format. Customer agrees that Customer has an affirmative non-delegable duty to disclose any and all information required by any party, including Company, to import, export, or otherwise deal with the goods.
Unless Company determines, in its sole discretion, to forego collection of charges owed to Service Providers, Compensation paid by Customer to Company shall include the rates and charges of all carriers and Service Providers used by Company in performing services with respect to the goods. All such amounts are due to Company in advance unless Company determines, in its sole discretion, to grant Customer credit in which case, payment shall be made within the credit period granted by Company. Granting of credit as to a particular transaction shall not be considered a waiver of this provision and Company may suspend credit at any time in its sole discretion including after commencing services with respect to which credit was previously granted. Charges shall be invoiced on the actual or dimensional weight of the goods, whichever is greater. Customer is liable for all charges imposed by Service Providers with respect to the goods regardless of whether included in any quotations provided by Company.
Company may, in its sole discretion, agree to handle a collect shipment (whether for freight charges, duties, charges or any other monies) using reasonable care, but shall have no liability if the consignee or other person refuses to pay for the shipment or if payment is collected via the wrong method. Customer shall remain ultimately responsible for all such charges.
Quotations generally as to fees, rates of duty, freight charges, insurance premiums or other charges given by Company to Customer are for informational purposes only and are subject to change without notice, and such amounts do not include provision of services not foreseen or contemplated at the time provided. Company shall not be bound to a quotation for the use of a particular provider, nor particular fee for services, unless in a separate writing, acknowledged and agreed by both parties in advance of the transaction and in all events subject to and conditioned upon Customer’s provision of accurate and complete information regarding the goods. Customer is liable for all charges arising from services, including, but not limited to, any and all amounts assessed by Service Providers, costs related to requests for cancellation (including charges for services rendered prior to cancellation), costs related to requests for reconsignment or otherwise due to inaccurate or incomplete information provided by or on behalf of Customer. Without limiting the foregoing, Customer is liable for any and all additional costs incurred by Company and/or any Service Provider due to any assessment or surcharge by a governmental authority, marine terminal operator, or other costs incurred that were not anticipated at the time of booking and that are incurred through no fault of Company or the Service Provider.
All charges are earned in full upon Company’s agreement to provide services. Customer will pay Company’s invoices in full and without deduction or offset within fifteen (15) days of the date of invoice. All payments shall be made in United States Dollars. Customer shall be responsible for costs of making payment.
In any dispute involving monies owed to Company, Company shall be entitled to all costs of collection, including reasonable attorney’s fees and interest at 15% per annum or the highest rate allowed by law, whichever is less, unless a lower amount is agreed to by Company in a separate writing acknowledged by both Company and Customer.
Except as specifically set forth in these Conditions, Company makes no express or implied warranties in connection with its services;
Customer agrees that in connection with any and all services performed by Company, except to the limited extent Company has directly and expressly assumed additional liability in these Conditions, Company shall only be liable for its failure to exercise reasonable care, which such failure is the direct and proximate cause of any injury to Customer, including loss or damage to Customer’s goods, and Company shall in no event be liable for the acts or omissions of any third party, including any Service Providers. Nor will Company have any liability to Customer related to or arising from the selection of Service Providers or the terms, conditions or agreements pursuant to which Service Providers perform their services.
Company’s liability for cargo loss, damage or delay, if any and regardless of cause, shall not exceed the limits below:
Company’s liability for all other claims, including, but not limited to, arising from or related to making or arranging filings with any governmental entity, shall in no event exceed the lesser of: (A) The amount owed by Customer to Company with respect to the specific services giving rise to such liability, or (B) The sum of $[100] per occurrence.
For the purposes of the above calculation, the value of the goods shall be their value at the place and time they are delivered or should have been so delivered to the consignee in accordance with the relevant transaction between Company and Customer.
Company’s sole liability arising from or relative to delay in the pick-up or delivery of goods shall be for or related to failure to deliver or arrange delivery of goods in a reasonable time if such failure causes loss or damage to the goods.
IN NO EVENT WILL COMPANY BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY OR PUNITIVE DAMAGES, NOR FOR ANY DAMAGES FOR LOST PROFITS OR BUSINESS INTERRUPTION, REGARDLESS OF WHETHER COMPANY WAS AWARE OF THE POSSIBILITY OF SUCH DAMAGES.
In no event will a missing, broken or unreadable seal on any trailer or container result in any presumption that cargo has been adulterated, contaminated, or otherwise rendered unfit for its intended purpose.
Subject to any longer claim filing period that is mandatory under an applicable statute or international convention, Company will have no liability for a potential or actual loss arising from or related to services herein unless the claim therefore is made in writing and received by Company within twenty (20) days of the event giving rise to the claim; the failure to give Company timely notice shall be a complete defense to any suit or action commenced by Customer.
Subject to any longer period that is mandatory under an applicable statute or international convention, Company will have no liability for a potential or actual loss arising from or related to services herein unless suit is filed and properly served on Company within one (1) year of the event giving rise to the underlying claim.
Investigating, negotiating or otherwise dealing with claims by Company or its legal advisors shall not be deemed a waiver of the foregoing provisions.
Release of the goods into the custody of the person entitled to delivery thereof, without notation of loss or damage on the transport documents prior to such release, shall be prima facie evidence of delivery of the goods in good order and condition, as was the state of such goods upon tendering to Company. Any such loss or damage must be immediately reported to Company. If loss or damage is not apparent, written notice must be given to Company within three (3) days after delivery and failure to give such timely notice shall also be a complete defense to any suit or action commenced by Customer. Should a consignee refuse to sign for the receipt of goods, Company shall request further instructions from Customer and all expenses in connection with such further instructions shall be the responsibility of Customer.
Any provisions of these Conditions to the contrary notwithstanding, in no event will Company have any liability to Customer or any other person for the consequences of identity theft or fraud perpetrated by any third party, including any liability arising from Company doing business or seeking to do business with a third party that has misrepresented its identity to Company.
Service Providers to whom goods are entrusted may limit liability for loss or damage, and Customer agrees that it is bound by such limitations. Company will request excess valuation coverage from such Service Providers only upon specific written instructions from Customer received by Company at least seventy-two (72) hours prior to scheduled pick-up. Customer agrees that it will be solely responsible for the charges associated therewith, and that failure to pay such charges may result in lack of such coverage. In the absence of written instructions from Customer, or the refusal of the Service Provider to agree to a higher declared value, at Company’s discretion, the goods may be tendered to the Service Provider subject to the otherwise applicable limitation of liability without any additional liability on Company.
Customer is responsible to ensure that goods are insured during transit; Company is under no obligation to assist in the procurement of insurance on Customer’s behalf. Company may, in its sole discretion, assist Customer in placing insurance insuring Customer’s interest in goods for which Company has arranged transportation or storage. In all cases, Customer shall pay all premiums and costs in connection with procuring insurance. Customer acknowledges and agrees that Company is not in the business of arranging for insurance and is not acting as an insurance broker or insurer. Customer is solely responsible for reviewing terms and conditions of coverage. Company makes no representations or warranties regarding scope of coverage
Company shall be entitled to engage any other person, firm or company to perform any of its obligations herein. Selection of a Service Provider by Company shall not be construed as a warranty or representation by Company that such Service Provider will render services, nor does Company assume responsibility or liability for the actions and/or inactions of such Service Providers, nor for any liability due to delay, loss or damage which occurs while goods are in the custody or control of any such Service Provider or agent thereof. Customer shall not seek to impose upon any such Service Provider any liability greater than that accepted by the Service Provider pursuant to the Service Provider’s engagement by Company. All claims in connection with the acts or omissions of a Service Provider shall be brought solely against such party and/or its agents; in connection with any such claim, Company shall reasonably cooperate with Customer, which shall be liable for any charges or costs incurred by Company.
No date for completion is fixed and in particular but without prejudice to the generality of the foregoing Company accepts no responsibility for departure or arrival dates or times.
Company shall not be obliged to arrange for the goods to be carried, stored or handled separately from other goods, except under special arrangements previously made in writing.
If at any stage in any transaction Company should reasonably consider that there is good reason in Customer’s interests to depart from any of Customer’s instructions, Company shall be permitted to do so and shall not incur any additional liability in consequence of so doing.
If at any time the carriage is or is likely to be affected by any hindrance or risk of any kind (including the condition of the goods) not arising from any fault or neglect of Company, Company may: abandon services in respect of the goods at any place that Company deems (in its sole discretion) safe and convenient, whereupon delivery shall be deemed to have been made, and the responsibility of Company in respect of such goods shall cease. In such event, Company shall be entitled to full charges and Customer shall pay any additional costs arising out of such event.
CUSTOMER SHALL DEFEND, INDEMNIFY, AND HOLD HARMLESS COMPANY FROM AND AGAINST, AND SHALL PAY AND REIMBURSE COMPANY FOR ANY AND ALL DIRECT AND INDIRECT LIABILITIES, CLAIMS, LOSSES, EXPENSES, COSTS (INCLUDING ATTORNEY FEES) OR DAMAGES (FOR PURPOSES OF THIS PROVISION, “CLAIMS”) INCURRED OR OCCASIONED BY (i) A BREACH BY CUSTOMER OF ANY OF THE WARRANTIES CONTAINED HEREIN; (ii) THE FAILURE OF CUSTOMER TO COMPLY WITH THESE PROVISIONS; (iii) COMPANY’S RELIANCE ON OR COMPLIANCE WITH INFORMATION OR INSTRUCTIONS PROVIDED BY OR ON BEHALF OF CUSTOMER; (iv) CUSTOMER’S NEGLIGENCE OR WILLFUL MISCONDUCT; OR (v) CLAIMS, SEEKING TO IMPOSE LIABILITY IN EXCESS OF ANY LIABILITY EXPRESSLY ASSUMED BY COMPANY HEREIN OR IN EXCESS OF ANY LIMITATION OF LIABILITY TO WHICH COMPANY IS ENTITLED HEREIN. CUSTOMER’S INDEMNITY OBLIGATIONS ARISING FROM THIS PROVISION SHALL NOT APPLY TO THE EXTENT A CLAIM IS DETERMINED BY A COURT OF APPROPRIATE JURISDICTION TO HAVE BEEN CAUSED BY THE NEGLIGENCE OR WILLFUL MISCONDUCT OF COMPANY.
Company shall have a general and continuing lien on any and all property of Customer coming into Company’ s or a Service Provider’s actual or constructive possession or control for monies owed to Company with regard to the shipment on which the lien is claimed, any prior shipment(s), and/or both;
Company shall provide written notice to Customer of its intent to exercise such lien, the exact amount of monies due and owing, as well as any ongoing storage or other charges. Customer shall notify all parties having an interest in its shipment(s) of Company’s rights and/or the exercise of such lien; and
Unless, within ten (10) days of receiving notice of lien, or such shorter time as may be provided for in such notice, Customer shall post cash or letter of credit at site, or if the amount due is in dispute, an acceptable bond equal to 110% of the value of the total amount due, in favor of Company, guaranteeing payment of the monies owed, plus all storage and other charges accrued or to be accrued, Company shall have the right to sell such shipment(s) at public or private sale or auction and any net proceeds remaining thereafter shall be refunded to Customer.
Company shall be under no obligation to exercise any lien for General Average contribution due to Customer or any other person.
Company shall not be liable for loss, damage, delay, wrongful or missed deliveries or nonperformance of its duties herein, resulting from circumstances beyond the reasonable control of either Company or its subcontractors, including but not limited to: (i) acts of God, including disease or pandemic, epidemic, flood, earthquake, storm, hurricane, power failure or other natural disaster, typhoon, tropical storm, tornado, blizzard, ice storm, or fire; (ii) war, robbery, theft, hijacking, crime, fraud, criminal or terroristic activities; (iii) embargoes; (iv) impacts on transportation networks, power grids, communications networks; (v) civil commotions or riots; (vi) defects, nature or inherent vice of the goods; (vii) acts, breaches of contract or omissions by Customer or any other person that may have an interest in the goods; (viii) acts by any government office or agency; or (ix) strikes, lockouts, or other labor related conflicts or slowdowns.
Customer acknowledges that it has the sole responsibility for maintaining records required of it by law or for use in its business and Company shall have no obligations related thereto. Company shall only be required to keep those records required of it by applicable laws or regulations and shall have no liability as to Customer in the event that Company fails to comply with such laws or regulations.
Unless requested by Customer in writing and agreed to by Company in writing, Company shall be under no obligation to undertake any ancillary regulatory activity related to “customs business,” including but not limited to obtaining binding rulings, filing petitions or protests, advising of liquidations; similarly Company shall not be obligated to obtain an import or export license or be responsible for ascertaining or determining licensing responsibility unless agreed to in writing, in advance. Any such services performed by Company will be performed as agent of Customer.Taxes.
Customer shall be liable for any duties, taxes, imports, levies, deposits or outlays of any kind levied by any authorities for or in connection with the goods or Company’s services, and for any payments, fines, expenses, loss or damage whatsoever incurred by Company, its servants, agents or sub-contractors in connection therewith. Customer shall, upon request, make immediate (advance) payment to Company to cover any money for which Customer is or may become liable under this paragraph. Company shall not be under any obligation to advance any money to Customer or any person for such purpose.
Any attempt by Customer to unilaterally alter, amend or modify the same shall be null and void. Customer and Company may agree to alternative terms in a writing signed by an officer of both Parties and notice is hereby given that no other person has or will be given authority on the part of Company to agree to any variation, cancellation or waiver of these Conditions. If any part of these Conditions is found to be invalid and/or unenforceable, the remainder shall continue in full force and effect. Company's decision to waive any provision herein, either by conduct or otherwise, shall not be deemed to be a further or continuing waiver of such provision or to otherwise waive or invalidate any other provision herein. In the event any paragraph(s) and/or portion(s) hereof is found to be invalid and/or unenforceable, then in such event the remainder hereof shall remain in full force and effect.
Except to the extent governed by other compulsorily applicable law, these Conditions and the services provided by Company shall be governed by and subject to the laws of the State of California, without regard to the choice-of-law rules of California or any other state or nation. CUSTOMER AND COMPANY AGREE THAT ANY CLAIM OR DISPUTE ARISING FROM OR IN CONNECTION WITH THESE CONDITIONS OR SERVICES RENDERED HEREIN, WHETHER UNDER FEDERAL, STATE, LOCAL, OR FOREIGN STATUTES, REGULATIONS, OR COMMON LAW, SHALL BE BROUGHT EXCLUSIVELY IN THE STATE OR FEDERAL COURTS OF APPROPRIATE SUBJECT MATTER JURISDICTION SERVING THE CITY OF FREMONT, ALAMEDA COUNTY, CALIFORNIA. CUSTOMER AND COMPANY HEREBY CONSENT TO THE PERSONAL JURISDICTION OF SUCH COURTS AND WAIVE ALL CHALLENGES TO PERSONAL JURISDICTION OF, OR VENUE IN, SUCH COURTS. In the event Customer files an action against Company, Customer hereby consents to any Company-instituted transfer of such action to any other venue in which Company is a party or subsequently becomes a party to an action concerning loss, damage or delay to the cargo that is the subject of Customer’s action. If Company prevails in any dispute subject to these Conditions or otherwise arising from its Services, Customer will be responsible for any and all of Company’s attorney’s fees and costs. If any provision of these Conditions is declared void, invalid or unenforceable by any court of law, the remaining provisions of these Conditions shall, to the extent permitted by such declaration, remain in full force and effect as though the void, invalid or unenforceable provisions were never a provision of these Conditions.