The following Freight Broker Terms and Conditions (“T&C”) apply to all orders (referred to individually as “Order”) that a customer (referred to hereafter as “Customer” or “you”) tenders to Avenger Logistics, LLC a Tennessee limited liability corporation (“us”, “we”, or “Avenger”) for the shipment of goods, packages, containers, or any other items. These terms and conditions supersede all previous T&C and other prior statements concerning the rates, payment, service, and other terms concerning Orders and shipments.
1. Role. Avenger Logistics LLC is registered as a transportation freight broker with the Federal Motor Carrier Safety Administration (FMCSA) under docket number MC-751228, with offices at 5959 Shallowford Road, Chattanooga, TN 37421 and 1557 Coon Rapids Blvd, Coon Rapids, MN 55433. Customer acknowledges that, per the meaning of USC Titles 47 and 49, we are not a “motor carrier,” “rail carrier,” “water carrier,” “freight forwarder,” “common carrier,” or “contract carrier”. Instead, as a broker, we fulfill Orders by contracting with various freight carriers (each a “Carrier”) for the purpose of arranging for the transportation of Customer’s shipments. Such selection for contracting a Carrier on a particular Order will be at the sole discretion of Avenger unless otherwise agreed upon in writing.
2. Order. By submitting an Order to us, regardless if made verbally, electronically or by written request, you agree to these T&C for the Order and corresponding shipment(s). Customer agrees to ensure only authorized representatives will tender Orders to us and is liable for all charges related to an Order and its corresponding shipment(s). Avenger reserves the right, in our sole discretion, to refuse any Order at any time.
3. Bills of Lading. Unless otherwise agreed to in writing, Customer or Customer’s Shipper will be responsible for generating a bill of lading (“BOL”) and providing to the contracted Carrier at the Shipper.
4. Invoices and Payment. All charges are due fifteen (15) days from the invoice date (Net15). Any dispute by Customer of any charge listed on an invoice must be made in writing, specifically indicating the nature of the dispute, and delivered to us within fifteen (15) days from the date of the invoice. If you do not timely deliver an invoice dispute all charges will be conclusively presumed to be valid. All payments must be made in US dollars. By providing us with your credit card or bank account information, you authorize us to charge on such credit card or bank account all amounts due on the applicable due date. In the event past due invoices are given to an attorney or collection agency for collection, Customer agrees to pay, in addition to the account balance, all interest payments, and collection costs (both before and after judgment), including reasonable attorney’s fees, until the full balance is either paid or collected in full.
5. Rates. Rates of Orders are generally determined based on the type of transportation that will be utilized, desired transit time, special requirements, etc. A rate provided for the purposes of quoting or forecasting is subject to change and/or additional fees for specific scenarios including, but not limited to, tractor or trailer detention, driver assistance loading/unloading, tarping, out-of-route miles, layovers, etc. (referred to collectively as “Accessorials”). Should a Carrier be prevented, through no fault of their own, from completing an Order at the agreed upon rate, Customer may be responsible for paying a “truck ordered, not used” (or “TONU”) penalty. A “Schedule of Accessorials” is available upon request.
6. Charges. Customer is responsible for all charges payable for Customer’s shipment(s). Such charges may include transportation, fuel and other applicable accessorial charges, any charges made by the Carrier(s) after the shipment, and all duties, customs assessments, governmental penalties, fines and taxes. We will have no obligation to make any payments or honor any rate quotes in any of the following instances: (i) the unauthorized alteration or use of the BOL, or (ii) tendering of shipments to any Carrier other than that designated by us for the Order, or (iii) the use of any BOL not provided by the customer or shipper or consistent with planned order. We reserve the right to amend or adjust charges and to re-invoice the Customer in the following events: (a) if the original quoted amount was based upon incorrect information provided by the Customer; (b) if additional services by the Carrier were required; and or (c) if the Customer authorized the Carrier to perform the pickup, transportation and delivery functions other than contemplated by the BOL.
7. Transit Dates and Times. All transit dates and times are estimates only and do not include day of pickup. Pickup dates are not guaranteed.
8. Credit Approval. Customer authorizes Avenger to perform all pertinent credit and background searches necessary to determine credit worthiness. Avenger also reserves the right to increase or decrease, at our sole discretion, the amount of charges a Customer may incur in a given time period.
9. Representations and Warranties. As a material inducement for us to accept an Order, Customer represents and warrants to both us and the designated Carrier(s) that: (i) in each event that Customer submits an Order, and at all times while a transport is being made, Customer will be in compliance with all applicable laws, rules, and regulations, including applicable laws relating to customs, import and export required by country to, from, through or over which the shipment may be carried; (ii) Customer will timely and fully furnish such information and complete and attach to the BOL such documents as are necessary to comply with all such laws; (iii) only authorized representatives of Customer, with the authority to act on behalf of and legally bind Customer, will be permitted to submit Orders and coordinate scheduling on behalf of Customer. We assume no liability for any loss or expense due to the failure of any of the representations or warranties set forth in this paragraph. Further, Customer will defend (with counsel selected by us), indemnify and hold us harmless for any claims, damages and losses that we may be subject to or incur related to or stemming from a failure of any of Customer’s representations and warranties set forth in this paragraph.
10. Tariffs; Terms and Conditions of Carrier. In the event of a conflict in the terms of these T&C and an applicable tariff then in effect with the designated Carrier, between you and us, these T&C will apply to the Order and transport and will take precedence in the interpretation of Customer’s and Avenger Logistics’ respective rights and obligations. We are not obligated to provide you a copy of a designated Carrier’s tariffs or any of the information contained therein. Customer is responsible for requesting and reviewing tariffs in effect with the designated Carrier(s).
11. Limitations of Liability; Damages Cap. Customer agrees that we are not liable for any loss, damage, misdelivery or non-delivery caused directly or indirectly by: (i) the act, default or omission of a Carrier, the Customer or any other party who claims interest in the shipment; (ii) the nature of the shipment or any defect or damage therein; (iii) a violation by the Customer of any provision of this Agreement, the BOL, or the Carrier’s tariff; (iv) improper or insufficient packing, securing, marking or addressing; (v) failure to observe any of the rules relating to shipments not acceptable for transportation or shipments acceptable only under certain conditions; (vi) acts of God, perils of the air, public enemies, public authorities, acts or omissions of customs or quarantine officials, war, riots, strikes, labor disputes, shortages, weather conditions or mechanical delay or failure of vehicles, aircraft or other equipment; (vii) the acts or omissions of any person other than employees of Avenger Logistics; or (viii) the selection of the Carrier for a particular shipment. Further, Customer agrees that we are not liable for negligent acts or omissions of our employees except to the extent that such actions or omissions constitute gross negligence. IN NO EVENT WILL WE BE LIABLE TO YOU OR ANY THIRD PARTY, REGARDLESS OF THE FORM OF ACTION OR THEORY OF RECOVERY, FOR ANY (A) INDIRECT, SPECIAL, EXEMPLARY, CONSEQUENTIAL, INCIDENTAL OR PUNITVE DAMAGES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITIES OF SUCH DAMAGED; OR (B) LOST PROFITS, LOST REVENUES, LOST BUSINESS EXPECTANCY, BUSINESS INTERUPTION LOSSES AND/OR BENEFIT OF THE BARGAIN DAMAGES. The aggregate liability of Avenger Logistics to you or any third party for all claims and damages related to a particular Order and its corresponding shipment(s), whether based on an action in contract, equity, negligence, tort or other theory, will not exceed an amount equal to the total charges that Customer paid us for the subject shipment.
12. Insurance. Carrier will be solely liable for any damage to the items transported. From time to time we may recommend optional Shippers Interest Contingent Cargo Liability Insurance (“Third Party Insurance” or “Rider”), but we have no responsibility or liability with respect to the issuance of Third-Party Insurance or in the denial or payment of any claims. The Customer will look solely to its own insurance, such as Third-Party Insurance, a shipper’s policy, or insurance provided by the Carrier for damage to goods in transit. Unless otherwise specified by an authorized agent in writing, all Orders will be insured to $100,000.
13. Disclaimer of Warranties. EXCEPT AS MAY BE EXPRESSLY PROVIDED IN THIS AGREEMENT, WE MAKE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH REGARD TO SHIPMENTS, WAREHOUSED GOODS, ITEMS IN TRANSIT OR DELIVERIES.
14. Disputes. The laws of the State of Tennessee govern these T&C. You consent to the exclusive jurisdiction and venue of the Superior Court in and for the County of Hamilton in the State of Tennessee in any claim or action arising out of, under or in connection with these T&C. If you or we bring a lawsuit to enforce any provision of these T&C, the prevailing party will be entitled to recover its reasonable attorneys’ fees and costs incurred in connection with that litigation. You knowingly and voluntarily waive any and all right to a trial by jury in any action or proceeding arising out of, under or in connection with these T&C.
15. No Third-Party Beneficiaries. Nothing in these T&C will be interpreted so as to create any third-party beneficiary status or rights in any other person.
16. Interpretation. These T&C will be interpreted in accordance with the plain meaning of its terms. If an ambiguity or question of intent or interpretation arises, these T&C will be construed as if drafted jointly by you and us and no presumption or burden of proof will arise favoring or disfavoring any party by authorship of any provisions of these T&C. You agree that the contents of these T&C are reasonable and necessary to protect Avenger Logistics’ legitimate business interests. In these T&C the singular includes the plural, and the plural the singular; words importing any gender include the other genders; references to “writing” include printing, email, typing, lithography and other means of reproducing words in a tangible visible form; the words “including,” “includes” and “include” will be deemed to be followed by the words “without limitation.”
17. No Waiver. The waiver of any provision of these T&C will neither operate nor be construed as a waiver of any subsequent breach. No failure to exercise, and no delay in exercising, any right, power, or privilege under these T&C will operate as a waiver.
18. Materiality and Timing. All covenants, agreements, representations and warranties made in these T&C are deemed to be material and to have been relied on by us in an accepting an Order and will survive the expiration of these T&C. The rights granted in these T&C are cumulative. Time is of the essence in the performance of the obligations under these T&C.
19. Severability. In case any one or more of the provisions contained in these T&C are, for any reason, held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability will not affect the other provisions of these T&C, and these T&C will be construed as if such invalid, illegal or unenforceable provision had never been contained in these T&C.
20. Entire Agreement; Amendments. These T&C contain the entire agreement between you and us with respect to the stated subject matter. No representations, promises, inducements or statements of intention have been made by you or us which are not contemplated by and embodied in these T&C, and neither you nor we will be bound by or liable for any alleged misrepresentation, promise, inducement or statement of intention not set forth in these T&C. We may amend these T&C from time to time. The version of these T&C in effect at the time an Order is accepted by us will govern the Order and its corresponding shipment(s). We will notify you when we make changes to these T&C and will give you the opportunity to review and comment on the revised terms before you submit new Orders. By submitting a new Order, following notice of a change to these T&C, you constitute your acceptance of the amended T&C.