This agreement consists of the terms and conditions (“Terms and Conditions”) between the customer (“Customer”) and Zmodal, LLC (collectively, “Zmodal”). Zmodal is a transportation property broker registered with the Federal Motor Carrier Safety Administration (the “FMCSA”), docket number MC1012377. Customer understands that Zmodal is not a motor-carrier, rail carrier, freight forwarder, ocean carrier or any other type of third-party transportation provider (collectively, “Carriers”); Zmodal contracts with such third-party Carriers on Customer’s behalf for the purpose of arranging transportation of Customer’s goods (“Services”).
These Terms and Conditions are intended to establish and explain Zmodal’s Services. Unless otherwise agreed to in a written agreement signed by Zmodal’s authorized representative, these Terms and Conditions apply to all Services and the related shipments. The Terms and Conditions are made for the sole benefit of the Parties. Except as expressly provided herein, no other person or entity is intended to or shall have the rights or benefits hereunder, whether as third-party beneficiaries or otherwise.
Zmodal may allow Customer to utilize Zmodal’s proprietary software, such as online tools, information and interfaces, (collectively, “TMS”) and or, Zmodal will provide Customer with transportation services as requested, in exchange for compensation, and in exchange for Customer’s agreement to these Terms and Conditions, which shall not be amended, unless Zmodal provides written authority. By agreeing to these Terms and Conditions, and using Zmodal’s software, website, information and interface, Customer agrees to Zmodal’s Privacy Policy and the User Agreement. Zmodal may discontinue providing services for Customer and access to TMS any time, without liability or notice to Customer, provided that Zmodal shall be obligated to complete any Services already undertaken at the time of discontinuation.
- Carrier Agreements and Shipping Documents.
Zmodal will arrange for transportation by contracting with Carriers on the Customer’s behalf. Those contracts are applicable to Customer’s shipment and may be documents such as bills of ladings (“BOL”), rail transportation agreements, tariffs, circulars, rules and other such publications in effect at the time of the shipment (collectively, “Shipping Documents”). Customer is responsible for requesting the Shipping Documents from Zmodal and reviewing the documents. Zmodal is not obligated to provide to Customer copies of Shipping Documents or any information contained therein. The Terms and Conditions, Privacy Policy and User Agreement govern the relationship between Zmodal and Customer and shall not be amended or altered by any Shipping Documents.
The terms of Shipping Documents will be subordinate to the provisions of these Terms and Conditions and any written agreement signed by Customer and Zmodal. Any change or notation made on the Shipping Documents that is in any way inconsistent with the provisions of these Terms and Conditions and any applicable written agreement that signed by Zmodal will be considered as a notation made for the private benefit and information of the consignor or consignee and will not be binding on Zmodal.
Shipping Documents also include a rail provider’s published intermodal circular of the rail transportation provider providing the rail transportation (the “Intermodal Circular”). The Intermodal Circular include certain requirements, limitations and restrictions on shipments transported on rail networks, including requirements relating to blocking and bracing, restrictions on certain types of cargo, limitations of liability, required data in shipping information, charges for failures to comply with requirements, and other matters.
Zmodal recommends that the Customer obtain and be familiar with the Intermodal Circulars. Failing to comply with the Intermodal Circulars will result in penalties; additional charges and costs; shipping delays; liability for equipment, cargo, other property and personal injury; indemnification obligations; and other consequences discussed in these Intermodal Terms. If Customer is not certain which Intermodal Circular should apply to a shipment, Customer should request the information from Zmodal.
Shipping documents also include any documents tendered with a shipment, such as BOLs issued by the Carrier, Zmodal, Customer or Shipper; such Shipping Documents will still serve solely as a receipt indicating transfer of the shipment (but will not constitute Zmodal’s transportation provider’s verification of the nature, condition, number or volume of the shipment’s contents). Any such documents that identifies Zmodal as the carrier will not change Zmodal’s relationship with or obligations to Customer or the nature of Zmodal’s role in arranging for transportation services as a transportation broker.
In the event Customer uses TMS to process shipments tendered to Zmodal to arrange for transportation to locations outside the United States or country of shipment origin, Customer will, at Customer’s sole expense, assure that the terms and conditions of international carriage are placed on the Shipping Documentation as may be required for all such international shipments. Customer will defend, indemnify and hold harmless Zmodal, its officers, directors, employees and agents from and against any and all losses, damages, claims and other items of cost and expense arising out of Customer’s failure to apply the international carriage terms to the Shipping Documentation for such international shipments.
- Customer’s Warranties and Representations.
Customer agrees to follow online instructions regarding the use of Zmodal’s software and TMS. Zmodal may modify the TMS, these Terms and Conditions, the Privacy Policy and Licensing Agreements at any time for any reason and for that reason, Customer warrants it will periodically review such agreements for compliance. Customer represents and warrants that it shall not use TMS to prepare shipments by or for the benefit of third-party shippers. Customer is responsible for all charges incurred under Customer’s account numbers.
Customer represents and warrants that Customer will comply with all laws, rules and industry standard practices that are applicable to Customer’s shipments. Customer agrees to furnish any necessary information and documents that are necessary to comply with such laws. Zmodal assumes no liability for any loss or expense due to the failure of the Customer to comply with this paragraph and Customer shall defend, indemnify and hold Zmodal harmless for any claims or damages resulting from violation of this paragraph, including attorney’s fees and costs.
- Payment.
Unless agreed otherwise in a written agreement signed by Zmodal’s authorized representative and subject to Zmodal’s credit approval, payment will be due within fifteen (15) days of invoice date. If an invoice is not paid on or before the due date, such invoice will be subject to a late charge from the date payable until payment in full at 1.5% per month, or such lesser amount as may represent the maximum rate permitted by applicable law. If Zmodal is required to utilize the services of a collection agency or attorneys to collect any amounts due, Customer will be responsible for reasonable collection costs, attorney fees, court costs and other reasonable expenses incurred in collecting amounts owed. Zmodal may apply additional charges and late fees at its discretion. Zmodal shall also use its discretion on how to apply funds paid to Zmodal (e.g. payment may apply to oldest or most recent invoice(s)). Overpayments do not accrue interest and may be refunded or credited to future charges against Customer’s account in Zmodal’s sole discretion.
When Zmodal pays a service provider for transportation services that were arranged on Customer’s behalf, Customer recognizes that Zmodal receives and reserves the service provider’s legal rights to collect payment from Customer and any other third-party entities (such as those who signed the applicable BOL); Zmodal also receives any and all rights to that service provider’s legal rights regarding liens against Customers goods for unpaid freight charges. Customer waives any defenses it may have pursuant to any agreement between Customer, or Zmodal, and the service provider.
Customer shall not withhold payment as a setoff because of a dispute or claim with Zmodal or Carriers, including claims for overcharge, duplicate payment or other invoice-related disputes or for claims of loss, damage or delay of freight or equipment.
Zmodal may grant credit to Customer which such credit shall be governed by these Terms and Conditions. Customer agrees to undergo a credit review and background search. Zmodal reserves the right to deny credit to Customer at any time for any reason. When paying by credit card or electronic funds, Customer will be responsible for all charges due and owing, including any adjustments on account or Customer’s shipment. The Customer authorizes Zmodal to charge Customer’s credit card or bank account for any charges. If Customer breaches (including anticipatory breach) any payment terms, Zmodal may alter the payment and credit terms and Zmodal’s discretion.
- Liability and Disclaimer of Warranties
ZMODAL SHALL NOT BE LIABLE FOR ANY LOSS, CLAIM, LIABILITY, OR DAMAGE UNLESS PROXIMATELY CAUSED BY ZMODAL’S GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT. IN NO EVENT, SHALL ZMODAL, OR ITS THIRD-PARTY CARRIERS, BE LIABLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES RELATING TO LOSS OF PROFITS OR INCOME, WHETHER OR NOT SUCH DAMAGES WERE REASONABLY FORESEEABLE OR MADE KNOWN.
Customer acknowledges that in order to provide competitive rates for the services, the Parties have agreed as a material term of this Agreement that Zmodal’s liability—if any—shall be limited to the fees that Zmodal has earned with respect to the subject shipment.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, ZMODAL MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH REGARD TO SHIPMENTS, GOODS IN TRANSIT, DELIVERY STATUS, CONDITION OF GOODS OR WITH REGARD TO THE INFORMATION PROVIDED ON THE WEBSITE OR SERVICES RELATED TO TRANSACTIONS CONDUCTED ON THIS WEBSITE. ZMODAL CANNOT GUARANTEE DELIVERY BY ANY SPECIFIC TIME OR DATE.
Customer acknowledges the following: (i) that Zmodal is a property broker, not a motor-carrier which means that Zmodal arranges for transportation, but does not transport the goods; (ii) Zmodal will confirm the FMCSA authority and insurance of the selected Carrier, but Zmodal does not guarantee that either will exist at the time of transport ; (iii) Customer’s dispute(s) arising from the transportation of the goods shall be with the Carrier, not Zmodal; (iv) Customer must purchase broad form cargo insurance for the transportation of goods as Customer understands that Carriers may have limitations of liability or insurance coverage gaps; and (v) there are risks to the Customer’s business that are associated with transporting goods and Customer understands and accepts such risk; for example, accidents, cargo loss, damage, and delay.
- Rates, Charges and Fees.
Customer shall be liable for all charges related to or arising from Customer’s shipment; such charges may include- but are not limited to- transportation, fuel, accessorials, duties, customs assessments, governmental penalties, fines and taxes. Zmodal reserves the right to amend or adjust charges and to re-invoice the Customer in the following events if: (i) Customer provides incorrect information; (ii) service provider executed additional services; and/or (iii) Customer authorized service provider to perform additional services. If Customer disputes Zmodal’s invoice(s), Customer shall provide written notice of such dispute, specifically indicating the nature of the dispute. Such notice must be provided within five (5) days from the date of the invoice. In the event Zmodal does not receive timely written notice of the dispute, the charges will be conclusively presumed to be valid. Rates shown on TMS may be different from the actual charges for Customer’s shipment. Differences may occur based on actual weight, dimensions, and other factors. Consult the applicable Rules and Conditions or Rate Sheets for details on how shipping charges are calculated.
All rates Zmodal provides to Customer are confidential. Customer is not permitted to disclose or make available any rate quotes to persons or entities other than its employees and agents who need to know the rate quotes to perform their transportation-related obligations. During the time that Zmodal’s rate quote remains outstanding and in effect, neither Zmodal nor the Customer should disclose to persons or entities outside the respective organizations any confidential information obtained from the other party in connection with the issuance of a rate quote, including the rate levels, expected volume of traffic and origins and destinations. These confidentiality restrictions will not apply to information that is generally available to the public, that is independently developed by a party without use of the other party’s information, that was known to a party before disclosure by the other party, or that is obtained from another source without violation of any confidentiality obligations.
- Cargo Claim Processing.
Zmodal may assist Customer with the processing of cargo claims. Although Zmodal will assist with processing cargo claims, ZMODAL HAS NO RESPONSIBILITY OR LIABILITY FOR PROCESSING CARGO CLAIMS. Where a damage claim is submitted with carrier on behalf of Customer, Zmodal shall have a lien on any amounts recovered to the extent of open past due invoices on the Customer’s account. The Customer acknowledges a claim for damages does not relieve it for payment under the terms of this Agreement. Timely payment is a condition precedent to claim processing. The Customer will look solely to its own insurance policy, a Shipper’s interest policy, or insurance provided by the carrier for damage to goods in transit. The Customer agrees to notify Zmodal in advance to the shipment whether Customer wants to purchase insurance for the shipment.
- Unless Customer and Zmodal have agreed otherwise in writing and signed by an authorized Zmodal representative, Customer shall agree that the following Carrier terms shall apply as well:
Cargo claims shall be processed in accordance with 49 CFR Part 370 and the Carrier’s liability shall be governed by 49 USC 14706 and any applicable carrier agreements with Zmodal or tariffs. Customer shall submit any cargo claim within three (3) weeks of delivery; unless the damage is concealed, which Customer shall notify Zmodal within five (5) business days from delivery and give the carrier five (5) business days for inspection. Unless Carrier has a more restrictive term in its tariff or bill of lading, Carrier’s liability shall be limited to a maximum of $100,000 per shipment.
Neither Carrier nor any rail transportation provider will have any responsibility whatsoever, either in whole or in part, for any loss or damage resulting from a failure to protect a shipment against heat, cold, or the elements in general, including, but not limited to that arising from any equipment failure, damage and/or shipment delays. The issuance or inclusion of instructions on shipping documents regarding temperature protection (e.g., shipments requiring tarping, transportation in temperature-controlled containers or other protection from heat or cold) shall not be binding on Carrier or any rail transportation provider unless and until the carrier or rail transportation provider agrees in writing to be bound by such terms. Furthermore, customer agrees to defend, indemnify and hold harmless Carrier, its affiliated entities and the rail transportation provers from and against all claims arising out of or attributable to a failure to protect a shipment from heat, cold, or the elements whosoever caused, including Carrier’s or the rail transportation provider’s sole negligence.
Carrier is not responsible for any damage or loss to temperature-controlled cargo (including any cargo governed by the FDA) unless customer, in advance, provides Carrier with written notice and instructions for handling the shipment and an authorized Carrier representative (Manager or Director) has signed the notice. A bill of lading shall not be considered “notice” of handling requirements and shall not be binding. If Consignee rejects a shipment and immediate disposition instructions are not provided, Carrier may dispose of the goods at its discretion. Customer shall be responsible for any disposition fees and freight charges. Carrier is not liable for any claims that only arise from, or as a result of, a broken seal, missing seal, tampered seal, or mismatched seal number. Seal integrity shall not be the only evidence used to support a claim; claimant must provide additional evidence which supports actual loss or damage to the goods.
All claims arising from international shipments shall be governed by Carmack. Carrier’s liability shall be limited to $1.00 per pound, unless customer requests, in writing, more coverage for a higher rate in advance. Carrier shall not be liable for any cargo damage, loss, injury or delay occurring in Mexico. If Carrier agrees otherwise in writing to accept liability, Carrier’s liability is limited to $0.25 per pound. If this geographical liability limitation is judicially or otherwise determined to be ineffective for any reason whatsoever, then Carrier’s liability for loss or damage shall be limited to $1.00 per pound.
- Waiver.
No waiver of any provision of this Agreement, or of the breach thereof, shall be construed as a continuing waiver or shall constitute a waiver of any other provision or breach. This Agreement is for specified services pursuant to 49 USC 14101 (b). To the extent that the provisions herein are inconsistent with Part (b), Subtitle IV, of Title 49 USC (ICC Termination Act of 1995) the Parties expressly waive all rights and remedies they may have under the Act.
- Severability.
If for any reason a court of competent jurisdiction finds any provision of this Agreement, or a portion thereof, to be unenforceable, that provision shall be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this Agreement shall remain in full force and effect.
- Governing Law and Limitation to File Suit.
The Terms and Conditions shall be governed by and construed in accordance with federal transportation laws and laws of the State of Tennessee without reference to its conflicts of law provisions. Any lawsuit arising from Zmodal’s services or arising from these Terms and Conditions shall be brought and adjudicated in a count located in Anderson County, Tennessee. ANY CAUSE OF ACTION ARISING FROM THE TMS OR ZMODAL’S SERVICES MUST BE INITIATED WITHIN ONE (1) YEAR FROM THE DATE OF WHEN THE CLAIM ARISES.
- Complete Agreement.
This Agreement constitutes the entire agreement between Customer and Zmodal and supersedes any prior or contemporaneous understandings, representations, statements or agreements, written or oral. No amendment to or modification of this Agreement will be binding on Zmodal without Zmodal’s written consent. Zmodal may modify this Agreement at any time for any reason.