The following Terms and Conditions apply to all services performed by CMS Companies, 21620 88th Place South Kent,
WA 98031 operating as a motor contract
carrier, real property broker and warehouse service provider (Carrier,
CMS) in addition to all other rules, regulations, rates and charges referenced in the Carrier&pos;s current rate schedule, master service agreement, market rate schedule or tariff. A copy of the applicable rate schedule or tariff shall be made available to the consignor, consignee and/or shipper upon request.
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SERVICES
Shipper agrees to engage Carrier and Carrier agrees
to provide Shipper the Services specified herein. Shipper and Carrier
agree that this is an Agreement pursuant to the laws of the State of
Washington. The terms and conditions regarding the Services, including
the commodities, scope and territory, term, compensation, Referenced
Tariffs, Pricing, liability of Carrier and Rules Governing the Contract
are those specified in Appendix A and B attached and form a part of this
Agreement. Carrier shall make available the necessary warehouse
accommodations, equipment(s), vehicle(s), personnel and other
material(s) generally used in the movement and / or storage of goods,
maintain all necessary licenses and permits, and maintain all required
insurance coverage(s), in conformance with all applicable requirements of
governmental authorities and the requirements set forth within this
agreement.Shipper acknowledges and agrees that Carrier may use
affiliates, subsidiaries, third parties, and/or subcontractors to
perform some of the Services here-under. Carrier''''s use of affiliates,
subsidiaries, third parties, and/or subcontractors shall not relieve
Carrier of responsibility for performance of the Services.
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FORCE MAJEURE
Carrier shall not be liable to the
shipper for any delay or failure in performance due to any cause beyond
its reasonable control so long as the carrier promptly notifies the
shipper in writing of the force majeure event and uses best efforts to
resume performance as soon as possible. By way of example (and not
limitation) these acts include: snow, earthquake, flood, labor disputes
and strikes, riots, war, acts by public enemies, acts (regulations,
ordinances, demands, requirements or any other condition) by public
authorities and governing bodies which would; make transportation routes
in-passable, or with great difficulty, or would damage the warehouse
such that it would be dangerous for workers to enter safely, or would
create a financial hardship such that the Carrier is not able to operate
at a profit.
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LIEN
Shipper acknowledges and warrants
to Carrier that it is in lawful possession of all Goods transported
and/or stored and that all goods are free of existing liens or
encumbrances.Pursuant to Section 7-209 and Section 7-210 of the Uniform
Commercial Code (UCC): Carrier reserves the right to enact and enforce a
warehouseman''''s and/or carrier''''s lien on all goods stored or transported
by Carrier and or it''''s affiliates, subsidiaries, third parties, and/or
subcontractors at any time for the full payment of, any and all monetary
amounts due or forecast to be due, in conjunction with the services
provided or to be provided at the rates published with in this
agreement. Any disposal, recycling, re-claim, delay charges or
additional charges from Carrier to Shipper encountered by the
enforcement of these liens are the full responsibility of Shipper in
addition to any interest or legal fee''''s which are incurred as a result
of the lien process. If Carrier elects to enforce a lien of any type,
Carrier shall notify shipper in writing of current balances owed and any
other obligations required to satisfy the terms of this agreement. If
all balances owed, and all obligations required are satisfied no liens
shall be pursed or enforced by Carrier against the Shipper. Shipper
hereby waives their rights to and any actions required by any
jurisdiction (Federal, State, County, Province, City, Municipality or
other) to the notice and/or processing of lien actions, including but
not limited to: Public Auctions, Debt Notifications, Disposal,
Recycling, Re-Claim, Public Sale, Private Sale or any other action
required by Carrier in an effort to satisfy the balances owed by Shipper
or the terms of this agreement.
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ABANDONED GOODS
Shipper acknowledges the costs
associated with the abandonment of Goods while in the Carriers
Possession. If Carrier notifies Shipper of balances which are past due
according to the terms of this agreement, Shipper shall have 90 days to
satisfy all balances owed and any other obligations required to satisfy
this agreement. If Shipper fails to satisfy the balances owed or
obligations of this agreement within 90 days, upon or after the 91st
day, Carrier shall notify Shipper of it''''s intent to enforce a lien
against Shipper.
If Shipper fails
to satisfy the balances owed or obligations of this agreement after 60
days of Carrier''''s Lien Notification, Any and All Goods, Products or
Items in the Carrier''''s Possession shall be considered ABANDONED GOODS.
Shipper hereby accepts that all ABANDONED GOODS may be sold, recycled,
destroyed or disposed of by the Carrier without notice or legal action
of any type. If Carrier incurs any cost or expense in the process of
selling, recycling, destroying or disposing of ABANDONED GOODS, Shipper
hereby accepts full legal responsibility for the payment of all amounts
claimed by Carrier in addition to any outstanding balances due or other
obligations outstanding in this agreement. - UN-IDENTIFIABLE SHIPMENTS AND INVENTORY
Any shipment, article or item tendered to Carrier which does not contain a Shipper Name, Address or Account Number at the time of receiving which matches a known Client Account shall be considered UN-Identifiable. All efforts will be taken to identify items with other markings and notations however these added efforts by the Carrier do not set a precedence for ongoing practice. If at any time additional identifying marks, project numbers, sales orders or other information is given to Carrier by Shipper, Carrier will validate the information for any conflicts and accept or deny these other methods of identification.UN-Identifiable shipments and inventory are placed within a ‘Quarantine’ warehouse location and CARRIER retains the right to inspect and open shipments for ownership identification. CARRIER assumes no liability for the condition, contents, count, or volume of opened shipments, when either requested by client, or from necessity. If/When ownership is established, clients will receive notification, and re-assignment fees will be applied to the account. Clients may self-identify shipments, by providing a full carrier name and tracking number for the related products. To protect the privacy of all parties, clients may not physically inspect UN-Identified products, prior to carrier name and tracking being provided.
Any UN-Identifiable Shipments and/or Items or Articles which are received by Carrier are subject to additional charges as listed above for the re-labeling, handling and administrative costs associated with this process. All storage charges shall be due for any periods of time which these shipments, items or articles were held in storage prior to the re-assignment into the Shipper(s) account inventory listing.
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ENFORCEMENT
This Agreement shall be
subject to and be interpreted in accordance with state laws applicable
to the Services and in all other respects with the laws of the State of
Washington. Each party consents to personal jurisdiction and venue in
King County Superior Court, Seattle Division. If a court or arbitrator
rules as invalid any provision of this Agreement or the application of
any provision to any person or circumstance, the remainder of this
Agreement shall not be affected. Any waiver of performance or service
must be in writing. The failure of a Party to insist, in any one or more
instances, on strict performance of any of the provisions or terms of
this Agreement shall not be construed as a waiver or relinquishment of
any such provision or term, but the same shall continue and remain in
full force and effect.
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COMPLIANCE
Carrier is
licensed as both a Property Broker and Motor Carrier of Property by the
Federal Motor Carrier Safety Administration (FMCSA) and Federal
Department of Transportation (DOT). As a licensed Property Broker,
Carrier arranges for the transportation of freight. As a licensed Motor
Carrier of Property, Carrier provides transportation of freight in
interstate and intrastate commerce. In connection with the performance
of Services, Carrier will comply, and will cause each of Carrier''''s
employees and consultants/subcontractors to comply, with all statutes,
laws, regulations, ordinances, judgments, permits and other governmental
rules or restrictions applicable to (a) Carrier''''s execution of this
Agreement, (b) Carrier''''s business and (c) the performance of the
Services by Carrier, its employees and consultants/subcontractors.
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INSURANCE
Worker''''s
Compensation; Liability Insurance. In addition to any insurance
requirements provided for under any schedule or appendix, Carrier and
any subcontractors will, at its own expense, provide and keep in full
force and effect during the term of this Agreement: (a) such workers'''' compensation covering all costs, statutory benefits and liabilities as
required under state worker''''s compensation or similar law, (b)
commercial general liability insurance in the amount of no less than
$1,000,000 per occurrence and in the annual aggregate covering losses
relating to property damage, advertising injury, bodily injury,
contractual liability, and products liability, (c) business automobile
liability insurance including coverage for all Carrier''''s owned,
non-owned and hired autos with limits of not less than $1,000,000 per
occurrence for bodily injury and property damage combined, (d) a
fidelity bond or similar policy covering employee theft with limits of
not less than $125,000 per loss and in the annual aggregate; (e) unless
otherwise stated in Appendix (A); cargo legal liability and/or motor
carrier cargo insurance to cover damage to or loss or damage to cargo of
no less $0.60 per lbs per article per occurrence; and (f) Warehouse
legal liability insurance covering Shipper''''s inventory while in the
Vendor''''s care, custody and control at $0.60 per lbs per article per
occurrence. All policies shall be primary and non-contributory whether
written through a combination of primary and umbrella or excess
policies, and will provide a waiver of subrogation in favor of Shipper
and its insurers. Carrier will maintain such policies with carriers to
having an A.M. Best''''s rating of no less than A-VII, and will name
Shipper and affiliates as additional insureds on the required commercial
general liability policy, as their interests may appear. The required
insurance shall cover the entire geographic scope in which the Carrier
will operate under this agreement. Carrier will provide to Shipper a
certificate of insurance confirming the relevant coverage and limits
within 10 days after the Effective Date and annually thereafter or at
any time at Shipper''''s request. Carrier will provide at least 30 days
prior written notice of cancellation to Shipper.
- LIABILITY
UNLESS OTHERWISE NOTED: CARRIER limits its damage and cargo loss liability to the lesser of the actual product value (manufacturers cost of the Goods) or $0.60 per pound per article for any damage or loss however caused, including damages and losses caused by the negligence of CARRIER , its employees and consultants/subcontractors. All claims for damage or service failures must be submitted in writing electronically or by mail including the CARRIER claim form along with all supporting documentation. Claims Settlements and or Reimbursements may only be posted against amounts due, current or future billing statements if approved in writing by CARRIER . CARRIER does not accept the refusal or short payment of any statements or invoices due to claims disputes at anytime and any amounts held against current billed invoices or billing statements will result in late payment penalties. All claims for damage must include the CARRIER or 3rd Party Carrier documentation along with the CARRIER Claims Form. Any claims submitted without a claim form and supporting document will not be processed. Intent or Notice to file a claim for damage is requested within 3 days from the date of service or occurrence of damage notification. All claims must be presented to CARRIER within 90 days of the date or service or occurrence of damage.