USA TERMS AND CONDITIONS OF SERVICE
1. These USA Terms and Conditions of Service (the "Agreement") apply to domestic services, other than truck brokerage, that Vanguard Logistics Services (USA), Inc. ("Vanguard") and/or its agents or subcontractors provide to you ("Customer") in the continental U.S. (the "Services"). Where the Services are included under an ocean or airway bill of lading ("Bill of Lading") issued by Vanguard or its affiliated company, or a Bill of Lading which Vanguard or its affiliated company should have issued, the Bill of Lading terms and conditions will supersede the terms of this Agreement except to the extent of a conflict between them, in which case the terms of this Agreement will apply.
2. Payment Terms: 15 days from date of invoice, subject to credit approval, unless Customer has a credit agreement with different terms with Vanguard. Interest at the highest rate allowable under applicable law may be charged on any late payment. In the event of any late payment of invoices, Vanguard will provide Customer with written notice of late payment and the opportunity to cure such late payment within ten (10) days after written notice, failing which such non-payment shall be considered as a material breach of this Agreement.
3. Customer shall be responsible for: (1) accurately and sufficiently classifying and marking all goods to allow Vanguard to properly identify each individual pallet and to comply with all laws and regulations concerning the storage, handling and transportation of the goods hereunder; (2) complying with all applicable communications requirements (i.e., package markings, labels, documentation, placards and emergency response information), and all laws, regulations and ordinances related to the goods, including with respect to hazardous goods, where applicable; and (3) safely and appropriately packing all goods for handling, storage and transportation. Customer will indemnify and hold Vanguard harmless from all loss, cost, penalty and expense (including reasonable attorneys' fees) which Vanguard pays or incurs as a result of Customer failing to fully discharge these obligations.
4. At no time will Vanguard be held liable for any extra cost or liabilities associated with the loading of containers above the legal maximum weight allowed when requested to do so by the Customer. A load plan indicating excess of the maximum legal weight is considered such a request.
5. Cargo Legal Liability
a. Vanguard shall be liable for loss or damage to goods while in Vanguard's care, custody and control except if resulting from: an act of God; act of War; force majeure; act of public enemies; seizure under legal process; strikes, lockouts, stoppage, or restraint of labor; riots and civil commotions; act or omission of Customer, its customer or its or their agents or representatives; any inherent defect, defect, condition, quality or vice of the goods themselves; insufficiency of packing; insufficiency or inadequacy of marks, description or classification of goods; or fault or neglect by any party other than Vanguard or its agents or subcontractors.
b. Where loss or damage to goods occurs for which Vanguard is not liable, Customer shall be responsible for the cost of removing and disposing of such goods and the cost of any environmental clean-up and site remediation resulting from the loss or damage to the goods.
c. Vanguard's maximum liability for loss or damage to goods hereunder shall be $1 per pound of freight lost or damaged, not to exceed $1000 per incident. Vanguard shall have no liability for damages for delay of the goods. Anyone filing a claim or having a right to file a claim, including a claim for indemnity, against Vanguard for loss or damage to goods or damages for delay of the goods is limited by the limitations of and exonerations from liability in this Agreement.
d. Opt Out of Carmack Amendment: Any motor or rail transportation through interstate commerce hereunder may be subject to the provisions of the Carmack Amendment (currently found at Section 14706 of Title 49 of the United States Code). Customer agrees that it was provided the opportunity to obtain full liability in exchange for paying higher shipping rates and opted not to pay such higher rates. Customer specifically and expressly agrees to opt out of the application of the Carmack Amendment. Customer specifically and expressly agrees to waive any and all rights and remedies under the Carmack Amendment and that the limitations of liability provided in this Agreement shall apply.
6. Indemnification for Other Claims
a. Customer agrees to indemnify, defend and hold harmless Vanguard, its affiliates and its and their agents and subcontractors from and against any and all claims, losses, demands, damages, liabilities, costs, expenses (including attorneys' fees), obligations, causes of action, or suits, for or arising out of injury, including death, to any person, including employees of Customer or Vanguard, or physical loss or damage to property, including Vanguard's property, to the extent resulting from the negligence or willful misconduct of Customer, its customer or its and their agents.
b. Vanguard agrees to indemnify, defend and hold harmless Customer from and against any and all claims, losses, demands, damages, liabilities, costs, expenses (including attorneys' fees), obligations, causes of action, or suits, for or arising out of injury, including death, to any person, including employees of Customer or Vanguard, or physical loss or damage (excluding cargo loss or damage) to property, including Customer's property, to the extent resulting from the negligence or willful misconduct of Vanguard.
7. Vanguard shall not be liable for any consequential, incidental, or indirect damages for any claim or cause of action, whether in contract or tort, including without limitation, lost profits and loss of business opportunity.
8. Claims by Customer and all other persons must be presented in writing to Vanguard within a reasonable time, and in no event longer than either 60 days after delivery of the goods by Vanguard or its subcontractors or agents, or 60 days after the Customer or the person or entity for which the goods were stored and/or transported is notified that loss or injury to part or all of the goods has occurred, whichever time is shorter. If Vanguard does not receive written notice of a claim within this time period, then the claim is time barred. Written claims shall be sent to Vanguard at:
Vanguard Logistics Services
Attn: Joe Newman
5000 Airport Plaza Dr., Suite 200
Long Beach, CA 90815
9. If either party desires to bring an action against the other party concerning any rates, charges, rules, loss, or damage to products or services relating to this Agreement, the time period in which the action shall be commenced is one (1) year after the delivery of the goods or in the case of lost goods, the date the goods should have been delivered. If an action is not brought within this time period, the claim is time barred.
10. The Agreement shall be governed by federal law, without regard to its conflicts of laws principles. In the absence of governing federal law, the Agreement shall be governed by the laws of the State of New York, without regard to its conflict of laws principles. Any disputes arising from or concerning the Agreement shall be heard in the United States District Court, Southern District of New York or the Supreme Court of the State of New York, New York County, as applicable. The prevailing party shall be entitled to recovery of costs, expenses and reasonable attorney fees.
11. The Agreement contains the entire terms and conditions between the parties on the subject matter herein, and no statements, promises, or inducements made by either party or agent of either party that are not contained in the Agreement shall be valid or binding. The Terms and Conditions may not be enlarged, modified, or altered except in writing signed by both parties.
12. The Agreement shall inure to the benefit of and be binding on the heirs, executors, assignees, and successors of the respective parties.