TWM TRANSPORT, LLC
SHIPPING AGREEMENT & TERMS AND CONDITIONS
This Agreement (the “Agreement”) between TWM Transport, LLC, 5900 N Australian Ave, Ste 1, West Palm Beach, Florida 33407(“Broker”) and (“Shipper”) is effective as of the last signed date set forth on the signature page of this agreement (the ‘Effective Date).
Whereas, Shipper is the owner or authorized representative of the owner of, certain wine and/or other beverage products (collectively the “Goods”) and Broker is a transportation broker registered with the United States Department of Transportation (“DOT”), No. 2999081 to operate pursuant to Docket No. MC-23105-B;
Whereas, Shipper desires to engage Broker to broker, secure, and/or provide motor carrier transportation through motor carriers selected by Broker (‘Contractors’) and other related incidental services (the ‘Services’) for the shipment of wine belonging to Shipper or Shipper’s customer’s (individually the ‘Customer’ and collectively the ‘Customers’).
Now, therefore, in consideration of the mutual promises described herein and for other good and valuable consideration, Shipper and Broker hereby agree as follows:
Article I. Transportation Services
1.1. Engagement of Services. Shipper, from time to time in its sole discretion, may utilize the services of Broker to arrange for transportation of Shipper’s Goods. Broker’s responsibility under this Agreement shall be limited to arranging for, but not actually performing, transportation of Shipper’s freight. This Agreement is intended to be non-exclusive to the parties.
1.2. Title To Goods. Title to the Goods will remain vested in Shipper at all times during the term of this Agreement. Nothing in this Agreement shall constitute a sale of the Goods to Broker or shall give Broker any ownership interest in the Goods; provided that, where necessary in connection with Broker’s providing the Services, Broker may temporarily take possession of the Goods or the Goods may otherwise come under the care, custody and control of Broker or Broker’s Contractors.
1.3. Shipper Representations. Shipper represents and warrants that, to the best of Shipper’s knowledge, the Destination is a permissible location for delivery and storage of the Goods under all applicable laws and regulations. Shipper further represents and warrants that (i) it has effected and/or obtained and will maintain all licenses, registration, government approvals and authority required by applicable law to cause to be transported any shipments transported pursuant to this Agreement; and that (ii) all shipments transported pursuant to this Agreement are consigned only to consignees who are licensed or otherwise authorized to receive shipments of wine under all applicable laws and regulations. Shipper shall provide on request copies of all licenses evidencing Shipper’s authority to ship wine. Shipper shall verify with any consignee of each shipment that, where required by law, the consignee is licensed or authorized to receive such shipments.
1.4. Shipper Compliance With Law. Shipper shall be solely responsible for keeping informed of and in compliance with all applicable laws and regulations governing shipments of wine, including but not limited to, requirements regarding documentation, licensing, labeling, packaging, quantity restrictions, payment of fees or taxes, and consignee regulatory compliance. Shipper acknowledges and agrees that Broker shall not be responsible for identifying or interpreting any applicable laws or regulations affecting Shipper’s shipment and that this function is solely Shipper’s responsibility. Broker shall have no liability to Shipper in circumstances where Broker complies with the instructions or requests from law enforcement or other governmental authorities, even if such instructions seem to be inconsistent with applicable laws and regulations.
1.5. Broker Representations. Broker enters into this Agreement with Shipper, as a Broker, only.
Article II. Shipment Procedures
2.1. Shipment Tendering and Acceptance. Shipper and Broker may enter into one or more customer specific shipping proposals executed by Shipper and Broker for services pursuant to the terms of this Agreement (a “Shipping Proposal”). Upon request of Shipper, Broker will issue a Shipping Proposal via Electronic mail or other electronic means as determined by Broker with the following minimum information: Shipper’s order number, origin, destination, estimated pickup and delivery dates and times, and rate to be paid to Broker. Upon execution of the Shipping Proposal by Shipper, the terms of each Shipping Proposal shall be incorporated into the terms of this Agreement. By executing a Shipping Proposal, the Shipper acknowledges and agrees to be bound by the terms of both the Agreement and Shipping Proposal(s). If any provision contained in a Shipping Proposal conflicts with any provision contained in this Agreement, the provision contained in this Agreement shall govern.
2.2. Storage of Shipment. In the event that any shipment is delivered to a storage facility associated with Broker (“Associated Facility”), Shipper shall be provided temporary storage at the Associated Facility’s general storage locker for a period of up to thirty (30) consecutive days at no additional charge. If Shipper fails to move the shipment from Associated Facility’s general storage locker within thirty (30) days after the date of arrival, Shipper shall be charged and agrees to pay $120.00 per month for each pallet of Goods remaining in the Associated Facility’s general storage locker. The fee due pursuant to this Section 2.2 is in addition to any fees or costs due hereunder. Shipper acknowledges that Broker does not own or control the Associated Facility, and agrees that Broker assumes no liability for damage to or loss of the Goods stored at such Associated Facility.
2.3. Receipts and Bills of Lading. Upon request of Shipper, Broker will provide Shipper with proof of acceptance and delivery of the Goods in the form of a bill of lading or proof of delivery. Shipper understands and agrees that the insertion of Broker’s name on any bill of lading shall be for Shipper’s convenience only and shall not change Broker’s status as anything other than a broker that arranges motor transportation. Shipper understands and agrees that Broker is not a motor carrier and that Broker has not held itself out as being a motor carrier.
Article III. Rates, Charges and Terms
3.1. Rates. Rates shall be contracted rates which shall be established in advance of any shipment by Shipper and Broker. Rates are determined per shipment based upon various factors, including but not limited to distance, weight, and value of cargo being shipped. If upon arrival the cargo or shipment differs from that contracted for in the rates, Broker may adjust the rates at its sole and reasonable discretion.
3.2. Standard Payment Terms. Prior to final delivery of the shipment, Shipper shall pay the balance of the total cost identified in the Shipping Proposal. For any additional charges incurred hereunder, Shipper shall pay invoices on or before seven (7) days following the receipt by Shipper of Broker’s invoice.
IF SHIPPER CANCELS SERVICE UNDER ANY SPECIFIC SHIPPING PROPOSAL WITHIN FIVE (5) DAYS OF THE DATE OF SHIPMENT, BROKER RESERVES THE RIGHT TO CHARGE THE SHIPPER AN ADMINISTRATIVE FEE OF $150.00.
3.3. Packing, Consolidation Services. Packing, unpacking, inventory, and consolidation services are not included unless otherwise requested. If requested by Shipper, Broker shall provide such services, which are billable to and payable by Shipper at a rate, plus the cost of packaging materials, to be determined by Broker and that will be or has been provided to Shipper.
3.4. Shipment Size. Shipper represents that it has provided accurate numbers related to the size of the shipment (i.e. number of bottles, boxes or pallets). In the event that the actual numbers of bottles, boxes or pallets to be shipped is less than specified by the Shipper, there shall be no change in the shipping costs. In the event that the actual number of bottles, boxes or pallets to be shipped is greater than specified by the Shipper, the shipping cost shall be adjusted in the sole and reasonable discretion of the Broker.
Article IV. Indemnification and Limitation of Liability
4.1. Indemnification. SHIPPER AGREES TO INDEMNIFY, DEFEND, AND HOLD HARMLESS, BROKER, ITS PARENT OR AFFILIATED COMPANIES, THEIR MEMBERS, MANAGERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, AND THEIR SUCCESSOR’S AND ASSIGNS, (COLLECTIVELY, “INDEMNIFIED PARTIES” FROM ALL CLAIMS, DEMANDS, EXPENSES (INCLUDING REASONABLE ATTORNEYS’ AND CONSULTANTS’ FEES), LIABILITIES, PENALTIES, COSTS, CAUSES OF ACTION, ENFORCEMENT PROCEDURES, AND SUIT OF ANY KIND OR NATURE (HEREINAFTER ‘CLAIMS’), OF WHICH INDEMNIFIED PARTIES MAY HEREINAFTER INCUR AS A RESULT OF SHIPPER’S BREACH OF THIS AGREEMENT, OR PERFORMANCE OF BROKER’S OBLIGATIONS UNDER THIS AGREEMENT, OR ITS OR ITS CONSIGNEE’S NON-COMPLIANCE WITH ANY LAWS AND REGULATIONS APPLICABLE TO SHIPMENTS MADE PURSUANT TO THIS AGREEMENT, WHETHER SUCH ACTION IS BROUGHT BY A GOVERNMENTAL AGENCY OF OTHER PERSON OR ENTITY. THE PARTIES AGREE, HOWEVER, THAT SHIPPER SHALL NOT BE OBLIGATED TO DEFEND OR INDEMNIFY INDEMNIFIED PARTIES FOR ANY CLAIMS, DEMANDS, SUITS, LIABILITIES, OR EXPENSES THAT ARISE SOLELY OUT OF THE INDEMNIFIED PARTIES’ GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
4.2. Limitation of Liability: Cargo Loss, Damage or Shortage. If Shipper files a cargo loss, damage or shortage claim, Broker may facilitate claim filing and processing with the responsible motor carrier if Shipper submits to Broker, within six (6) months of the date of delivery or scheduled date of delivery in the event of non-delivery, a written claim, fully supported by all relevant documentation, including but not limited to the signed delivery receipt, listing the nature and cause of the claim for cargo damage. Shipper understands and agrees that the underlying motor carrier may have a limitation of liability in place that limits Shipper’s recovery with respect to such claims. Broker may, in its sole discretion and without liability to Shipper, discontinue pursuit of claims with the responsible motor carrier if that claim is not resolved within sixty (60) days of receipt by Broker. If Broker, at its sole option, elects to pay the claim to Shipper, Shipper shall automatically assign its rights and interest in the claim to Broker in order to allow Broker to subrogate its loss.
Shipper understands and agrees that Broker is not a motor carrier. Accordingly, Shipper expressly understands and agrees that Broker shall not be liable for loss, damage, or delay in the transportation of Shipper’s Goods unless it was Broker’s negligent acts or omissions in the performance of this Agreement that caused any of the foregoing, in which event, Broker’s liability shall be limited to $100 per case on shipments with no declared value.
At the time of booking, Shipper may secure protection against loss or damage exceeding Broker’s liability under this Agreement, if desired, by providing a declared value, and paying an additional charge. If Shipper elects not to secure such additional protection, Shipper shall be deemed to have waived such offer.
In addition to any limitations set forth elsewhere in this Agreement, Broker shall not be liable for any: a) special, indirect, exemplary, consequential, or punitive damages, including but not limited to lost profits; or b) claimed or stated discrepancies in inventory if Broker’s services do not include packing of a shipment. If Broker’s services include the packing or unpacking of a shipment, Broker shall not be liable for any claimed or stated discrepancies in inventory unless Shipper requests that Broker perform an inventory of the Goods prior to shipment; and a representative of the Broker is present for unpacking of the inventory upon its arrival at the delivery destination.
Article V. Termination, Cure Period, and Dispute Resolution
5.1. Term and Termination. This Agreement shall commence upon the Effective Date and be for a term of one year and shall automatically be renewed for successive one year periods unless terminated hereunder. If there are no active shipments for Shipper, Shipper or Broker may terminate this Agreement upon thirty (30) days prior written notice. Notwithstanding the foregoing, this Agreement may be terminated immediately by Broker upon the material breach of any of the terms of this Agreement by Shipper.
5.2. Cure Period. If Shipper believes that Broker is in breach of this Agreement, Shipper shall provide Broker written notice upon learning of any breach or default by the Broker and specify the grounds under which such claim is made (“Default Notice”). Broker shall then have seven (7) business days from the date of receipt of the Default Notice to cure such breach; provided, however, that if the breach or default is non-monetary and cannot reasonably be cured within such period, but Broker undertakes diligent efforts to cure, then the cure period continue as long as such diligent efforts to cure continue.
5.3. Dispute Resolution. Any controversy arising out of the performance of this Agreement or regarding its interpretation is subject to a good faith effort at resolution as provided in this Section 6.3. First, the parties shall attempt informal good faith efforts at resolution. If the dispute cannot be settled through negotiation, the parties agree first to try in good faith to settle the dispute by mediation before resorting to arbitration, litigation, or some other dispute resolution procedure. Such mediation shall be administered by the American Arbitration Association or as agreed between the parties. The mediation fee shall be split equally by the parties, and each side shall be responsible for their own costs. Mediation shall occur in Palm Beach, Florida.
All offers, promises, conduct and statements, whether oral or written, made in the course of the mediation by any of the parties, their agents, employees, experts and attorneys, and by the mediator are confidential, privileged and inadmissible for any purpose, including impeachment, in any arbitration or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the mediation.
IF ANY PARTY COMMENCES A COURT ACTION OR AN ARBITRATION PROCEEDING BASED ON A DISPUTE OR CLAIM TO WHICH THIS SECTION APPLIES WITHOUT FIRST ATTEMPTING TO RESOLVE THE MATTER IN GOOD FAITH THROUGH MEDIATION, THEN THAT PARTY SHALL NOT BE ENTITLED TO RECOVER ATTORNEY’S FEES EVEN IF THEY WOULD OTHERWISE BE AVAILABLE TO THAT PARTY IN A SUBSEQUENT COURT ACTION OR ARBITRATION PROCEEDING.
Article VI. Miscellaneous
6.1. Independent Contractor. This Agreement is not and shall not be construed as an agreement of joint venture, partnership, agency, franchise or employment between the parties or their respective employees. Each party has sole authority and responsibility to employ, discharge, discipline and otherwise control and direct its employees, and neither Shipper nor Broker, nor any of their employees, are or shall be deemed to be employees of the other.
6.2. Assignment. Except as set forth herein, neither party may assign its rights or subcontract its obligations under this Agreement to any other person or entity without the prior written consent of the other. Any unauthorized assignment of this Agreement is void.
6.3. Choice of Law; Venue. This Agreement shall be governed under the substantive law of Florida, without regard to the rules of conflict, except to the extent that mandatory laws, rules and regulations of the United States govern this Agreement. Any lawsuit arising out of this Agreement shall be filed in the Superior Court of Florida, Palm Beach County, unless there is jurisdiction in federal court, in which case the lawsuit may be filed in the United States District Court for the Middle District of Florida.
6.4. Execution in Counterparts, Facsimile and by Scan. This Agreement may be executed by Broker and Shipper executing separate identical counterparts, which together shall constitute one agreement. Any execution by scanned signature or facsimile signature shall be as effective as execution with original signature. The parties agree that electronic signature shall by binding on the parties and as effective as execution with original signature.
6.5. Electronic Imaging. The parties intend to allow for the electronic imaging and storage of this Agreement, and the admissibility into evidence of such an image in lieu of the original paper version of this Agreement. The parties stipulate that any computer printout of any such image of this Agreement shall be considered to be an “original” under the applicable court or arbitral rules of evidence when maintained in the normal course of business and shall be admissible as between the parties to the same extent and under the same conditions as other business records maintained in paper or hard copy form. The parties agree not to contest, in any proceeding involving the parties in any judicial or other forum, the admissibility, validity, or enforceability of any image of this Agreement because of the fact that such image was stored or handled in electronic form.
6.6. Force Majeure. The Broker shall not be liable for any delay in delivery of, and loss or damage to the Goods resulting directly or indirectly from or contributed to by any force majeure, including without limitation, fire, labor strife, riot, war, weather conditions, acts of the public enemy, acts of God, acts of terrorism, local or national disruptions to transportation networks or operations, fuel shortages, governmental regulations, or governmental request or requisition for national defense. No liability shall be incurred by Broker for damages resulting from such suspensions.
6.7. Prior Communications; Entire Agreement. This Agreement supersedes any prior agreements or other communications between the parties with respect to the subject matter of this Agreement. This Agreement, and any executed Shipping Proposal, constitutes the entire agreement of the parties regarding the subject matter of this Agreement.
6.8. Severability. If any term in this Agreement is found to be illegal or unenforceable in any respect, the validity and enforceability of the remainder of this Agreement will be unaffected.
6.9. Survival. The provisions of Articles III, IV, V, and VI, of this Agreement shall survive the termination of this Agreement. All provisions of this Agreement applicable to any shipment whose transit commenced prior to the termination of this Agreement, as to such shipment, shall survive such termination.
6.10. Notice. All notices, requests, consents, approvals and other communications (‘Notice(s)’) that are required or may be given under this Agreement shall be in writing and shall be deemed to have been duly given or made when sent by certified mail, return receipt requested, all postage and other charges prepaid or overnight courier service addressed to the parties as provided above, or at such location as the parties my provide in writing from time to time.
6.11. Waiver. An effective waiver under this Agreement must be specific, in writing, and signed by the party waiving its right. A waiver by Shipper or Broker of any instance of the other’s noncompliance with any obligation or responsibility under this Agreement will not be deemed a waiver of subsequent instances.
6.12. Binding Agreement. This Agreement shall inure to the benefit of and be binding upon Shipper and Broker and their respective heirs, administrators, successors, permitted assigns and legal representatives.