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Scotlynn USA Division – Terms and Conditions

Terms and Conditions for the Arrangement of Motor Carrier Transportation by Scotlynn USA Division, Inc. (Freight Broker)

These terms and conditions of service (the “Terms and Conditions”) constitute a legally binding contract among the Parties (defined below), and shall apply solely to services provided by Scotlynn USA Division, Inc.., on its own behalf and as agent for Scotlynn Transport, LLC, an affiliated company (together “SCOTLYNN”) for the arrangement of transportation services in North America. The Terms and Conditions are subject to change by SCOTLYNN upon posting on SCOTLYNN’s website from time to time. The most current and controlling version of the Terms and Conditions are published at https://www.scotlynn.com/.

1. Definitions:

“Bill of Lading” is the reference to the official shipping document, sometimes completed by CUSTOMER or in some cases by the Carrier or other authorized person or entity accepting the Shipment, containing pertinent information about the Shipment such as piece count, weight, quantity, and the like. The Bill of Lading may include, but not be limited to, shipping documents directly referred to and titled as a Bill of Lading, and also other shipping documents commonly used in the industry such as Shippers Letter of Instruction, Air Waybill, Delivery Receipt, etc., which duly authorize the Carrier to accept the Shipment.

“Carrier” is the person or entity selected by SCOTLYNN to actually perform the transportation of the Shipment with its own means of transport under its own motor carrier authority, and subject to carrier liability as a result of an express or implied undertaking to assume such liability.

“Consignee” is the person or entity listed as the “ship to” party or to whom the Bill of Lading instructs the Carrier to deliver the Shipment.

“CUSTOMER” or “Shipper” includes the person or entity with whom SCOTLYNN has contracted to arrange to move the Shipment and any Person whom directly benefits from services performed pursuant to the Terms and Conditions.

“Package” or “Packages” are the customary shipping units as listed on the Bill of Lading including, but not limited to, packages, cartons, pallets, tubes, etc.

“Parties” include the CUSTOMER, the Consignee, the consignor, SCOTLYNN, and any other Person having a present or future interest in the Shipment or any Person acting on behalf of any of the above-mentioned parties with respect to a Shipment.

“Person” means any individual, corporation, limited liability company, joint venture, trust, partnership or other entity.

“SCOTLYNN” means Scotlynn USA Division, Inc. and its affiliated companies, and their respective employees, officers, directors, agents, subcontractors, carriers and independent contractors performing freight brokerage services pursuant to the Terms and Conditions.

“Shipment” is the total of the Packages and their contents listed and described on the Bill of Lading, or as amended in subsequent written documentation provided to SCOTLYNN.

2. Agreement to the Terms and Conditions.

In tendering a Shipment to SCOTLYNN for SCOTLYNN to arrange for the transportation of the same, or otherwise engaging the services of SCOTLYNN in any other fashion, CUSTOMER agrees that the version of the Terms and Conditions in effect at the time the shipment is tendered to SCOTLYNN for arrangement of the transportation will apply to the Shipment, and its transportation by the Carrier, which no agent or employee of the Parties may alter. To the extent the Terms and Conditions conflict with a Bill of Lading or other shipping document, the Terms and Conditions shall control. Further, except to the extent the Terms and Conditions conflict with any written agreement between the Parties, the Terms and Conditions shall supersede any alleged or asserted oral agreement, promise, representation, or understanding between the Parties. Further, in the case of conflict between the Terms and Conditions contained herein and those set forth by the Carrier’s General Rules Tariff, these Terms and Conditions shall apply.

3. Rates.

Rates are in USD and include fuel surcharges, and unless otherwise noted, rates exclude accessorial charges, custom clearance or other international crossing fees. Except as provided in any written agreement between the parties, rates and charges for Shipments will be based on actual or dimensional weight, whichever is greater.

4. Quotations Not Binding.

Except as set forth in a written agreement between the CUSTOMER and SCOTLYNN, quotations as to fees, rates of duty, freight charges, insurance premiums or other charges provided by SCOTLYNN to CUSTOMER are for informational purposes only and are subject to change without notice. No quotation shall be binding on SCOTLYNN unless SCOTLYNN agrees in writing to undertake the handling of the arrangement of the transportation of the Shipment at a specific rate accepted by CUSTOMER within five (5) business days from the date of the quote. CUSTOMER understands that quotations are provided to CUSTOMER in reliance on the information furnished to SCOTLYNN at the time the quotation is provided, and are subject to change based on actual weights, commodity, contents, mode of transportation, dimensions, and volumes tendered by the CUSTOMER, as well as due to unforeseen or unanticipated costs, occurrences or events which are beyond the control of SCOTLYNN. Rates are not valid for any residential, inside, or show delivery. If such service is requested, additional charges will apply.

5. Hazardous Materials.

CUSTOMER and SCOTLYNN shall comply with all applicable laws and regulations relating to the transportation of hazardous materials as defined in 49 CFR §172.800 and §173 et seq. to the extent that any Shipments constitute hazardous materials. CUSTOMER is obligated to inform SCOTLYNN immediately if any such Shipments do constitute hazardous materials. CUSTOMER shall defend, indemnify and hold SCOTLYNN harmless from any penalties or liability of any kind, including reasonable attorney fees, arising out of CUSTOMER’s failure to comply with applicable hazardous materials laws and regulations.

6. Independent Contractors.

It is understood between SCOTLYNN and CUSTOMER that SCOTLYNN is not an agent for the Carrier or CUSTOMER and shall remain at all times an independent contractor. CUSTOMER does not exercise or retain any control or supervision over SCOTLYNN or its operations, employees, or carriers. SCOTLYNN does not exercise or retain any control or supervision over the Carrier or over the Carrier’s operations or employees. SCOTLYNN does not exercise or retain any control or supervision over CUSTOMER or over the CUSTOMER’s operations or employees.

7. Waiver.

Failure of either party to insist upon performance of any of these Terms and Conditions, or to exercise any right or privilege herein, or the waiver of any breach of any of these terms and conditions, shall not be construed as thereafter waiving any such terms, conditions, provisions, rights or privileges, but the same shall continue and remain in full force and effect as if no forbearance or waiver had occurred.

8. Back Solicitation.

CUSTOMER shall not solicit the services of SCOTLYNN’s motor or other freight carriers where the CUSTOMER’s use of such carrier first occurred through the SCOTLYNN’s efforts. If the CUSTOMER breaches this provision, SCOTLYNN shall be entitled, as reasonable damages and not as a penalty, to a commission of fifteen percent of the gross revenue from traffic assigned by CUSTOMER to such carrier for a period of fifteen months. CUSTOMER also agrees that the breach of this provision entitles SCOTLYNN to be entitled to obtain an injunction against CUSTOMER in a court of competent jurisdiction, at SCOTLYNN’s option.

9. Terms of Payment.

All CUSTOMERs are subject to credit approval. SCOTLYNN intends to perform a credit check based on the information provided at the time of enrollment by the CUSTOMER. The amount of credit, if any, granted to the CUSTOMER is at the sole discretion of SCOTLYNN. Subject to approval of CUSTOMER’s credit, net payment shall be due 30 days from invoice date unless otherwise noted in writing. Past-due invoices are subject to a service charge, calculated on the outstanding balance, at the lesser of (i) the rate of one and one-half percent (1 1/2)% per month or (ii) the highest legal rate authorized by applicable law. The service charge is not intended as an alternative to payment when due, and upon delinquency further purchases may be declined and the CUSTOMER’s account may be referred for collection. CUSTOMER agrees to pay all costs including reasonable collection costs, attorney’s fees and expenses related to the enforcement of applicant’s obligations hereunder. The CUSTOMER is liable for all charges payable on account of such CUSTOMER’s shipment, including but not limited to transportation, fuel and other applicable accessorial charges, including all adjustments issued by the carrier(s) after the shipment, and all duties, customs assessments, governmental penalties and fines, taxes, and SCOTLYNN’s attorney fees and legal costs allocable to this shipment and/or all disputes related thereto. CUSTOMER agrees to pay any convenience fees charged by SCOTLYNN related to the payment of services via credit card or other electronic payment methods. Unless otherwise agreed, brokers arranging Shipments for clients shall be liable, jointly and severally, for all charges payable on account of such client’s shipment. SCOTLYNN shall have a lien on the Shipment for all sums due to it relating to this Shipment or any other amounts owed by CUSTOMER. SCOTLYNN reserves the right to amend or adjust the original quoted amount or re-invoice the CUSTOMER if the original quoted amount was based upon incorrect information provided at the time of the original quote or if additional services by the carrier were required or otherwise authorized by the CUSTOMER to perform the pickup, transportation and delivery functions therein. When paying by credit card or electronic funds in advance of the shipment (“Pre-Pay”), the CUSTOMER agrees it will be responsible for all charges payable, including any adjustments, on account of such CUSTOMER’s Shipment. These charges and adjustments, if any, may be automatically debited from the CUSTOMER’s credit card or bank account. CUSTOMER is permitted thirty (30) business days from the date of the invoice to dispute any invoiced charges. If SCOTLYNN does not receive a written dispute within the allowable thirty (30) business days, the disputed item will be denied by SCOTLYNN. This information can be provided to CUSTOMER prior to booking any shipment, or any time after the Shipment. SCOTLYNN reserves the right, at its sole discretion, to refuse any Shipment at any time.

10. Warranties by CUSTOMER.

CUSTOMER is responsible for and warrants its compliance with all applicable laws, rules, and regulations including but not limited to customs laws, import and export laws and governmental regulation of any country to, from, through or over which the Shipment may be carried. The CUSTOMER agrees to furnish such information and complete and attach to the Bill of Lading such documents as are necessary to comply with such laws, rules and regulations. SCOTLYNN assumes no liability to the CUSTOMER or to any other person for any loss or expense due to the failure of the CUSTOMER to comply with this provision. Any individual or entity acting on behalf of the CUSTOMER in scheduling shipments hereunder warrants that it has the right to act on behalf of the CUSTOMER and the right to legally bind CUSTOMER.

11. Bills of Lading.

All Bills of Lading are NON-NEGOTIABLE. All bills of lading that have been prepared by the CUSTOMER, by SCOTLYNN on behalf of the CUSTOMER, or by the Carrier, shall be deemed, conclusively, to have been prepared by the CUSTOMER. Any unauthorized alteration or use of Bills of Lading or tendering of shipments to any carrier other than that designated by SCOTLYNN, or the use of any Bill of Lading not authorized or issued by SCOTLYNN shall VOID SCOTLYNN’s obligations to make any payments relating to this shipment and VOID all rate quotes. If the CUSTOMER does not complete all the documents required for carriage, or if the documents which they submit are not appropriate for the services, pick up or destination requested, the CUSTOMER hereby instructs SCOTLYNN, where permitted by law, to complete, correct or replace the documents for them at the expense of the CUSTOMER. However, SCOTLYNN is not obligated to do so. If a substitute form of Bill of Lading is needed to complete delivery of this shipment and SCOTLYNN completes that document, the terms of this Bill of Lading will govern. SCOTLYNN is not liable to the CUSTOMER or to any other person for any actions taken on behalf of the CUSTOMER under this provision. If requested by CUSTOMER, SCOTLYNN agrees to provide CUSTOMER with proof of acceptance and delivery of loads in the form of a signed Bill of Lading or Proof of Delivery, as specified by CUSTOMER. CUSTOMER’s or any other party’s insertion of SCOTLYNN’s name on the bill of lading shall be for convenience only and shall not change SCOTLYNN’s status as a property broker. CUSTOMER understands that even when, for CUSTOMER’s convenience, SCOTLYNN is listed on the bill of lading, SCOTLYNN is not a motor or other freight carrier and will not perform transportation of freight. The Terms and Conditions of any freight documentation used by SCOTLYNN or carrier selected by SCOTLYNN may not supplement, alter, or modify the terms of this Agreement except as expressly provided herein.

12. Limitations of Liability and Claims.

SCOTLYNN is a broker only and not a motor carrier. SCOTLYNN has no responsibility to transport and deliver CUSTOMER’s freight but is solely responsibility for arranging for transportation of CUSTOMER’s freight with a motor carrier authorized by the Federal Motor Carrier Safety Administration to operate in interstate commerce as a motor carrier of property. SCOTLYNN has no responsibility, liability or involvement in the issuance of insurance, the denial of insurance, or in the payment of claims. It is possible that the Carrier’s governing Rules Tariff determines the Carrier’s liability, limitations of liability, and the amount of excess liability available. If the shipment contains freight with a predetermined exception value, as determined by the Carrier, the maximum exception liability will override the otherwise standard liability coverage. Insurance information will be provided to the CUSTOMER upon request.

(a)    SCOTLYNN will facilitate and attempt to assist in the resolution of freight claims but has no responsibility or liability related to any claim. The Carrier is responsible for adjusting, paying, declining, or otherwise resolving freight claims. All freight claims should be submitted immediately to SCOTLYNN to help ensure timely resolution. If the loss or damage is apparent, the consignee must note such loss or damage information on the bill of lading/delivery receipt. If the loss or damage is not apparent (concealed), the CUSTOMER must contact SCOTLYNN within 5 days after taking delivery. The filing of a claim does not relieve the responsible party for payment of freight charges. Freight charge payment is necessary in order for the Carrier to process a claim. CUSTOMER may not offset claims or any other amounts from freight charges owed to SCOTLYNN. SCOTLYNN may offset freight or other charges owed by CUSTOMER from claims or other payments made to CUSTOMER by SCOTLYNN or Carrier. If payment of claim is made by SCOTLYNN to CUSTOMER, CUSTOMER automatically assigns its rights and interest in the claim to SCOTLYNN so as to allow SCOTLYNN to subrogate its loss.

(b)    SCOTLYNN has no liability for loss, delay and damage to freight. SCOTLYNN is not liable for any loss, late-delivery, non-delivery, or consequential damages caused by the act, default or omission of: (1) the Carrier, (2) the CUSTOMER or (3) any other party who claims interest in the shipment, or caused by the nature of the shipment or any defect thereof. SCOTLYNN is not liable for losses, late-delivery or non-delivery caused by violation(s) by the CUSTOMER of any of the Terms and Conditions, terms of the Bill of Lading, including, but not limited to, improper or insufficient packing, securing, marking or addressing, or of failure to observe any of the rules relating to shipments not acceptable for transportation or shipments acceptable only under certain conditions. SCOTLYNN is not liable for losses, late delivery or non-delivery caused by the acts of God, perils of the air, public enemies, public authorities, acts or omissions of Customs or quarantine officials, war, riots, strikes, labor disputes, weather conditions, inherent vice, or mechanical delay or failure of aircraft or other equipment. SCOTLYNN is not liable for failure to comply with delivery or other instructions from the CUSTOMER or for the acts or omissions of any person other than employees of SCOTLYNN.

(c)    Subject to the limitations of liability contained in the Bill of Lading and the carrier’s General Rules Tariff, SCOTLYNN shall only be liable for loss, damage, mis-delivery or non-delivery caused by SCOTLYNN’s own gross negligence. SCOTLYNN’s liability therefore shall be limited to the fees that SCOTLYNN has earned with respect to the subject shipment.

(d)     SCOTLYNN MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH REGARD TO DELIVERIES OR WITH REGARD TO THIS WEBSITE, INFORMATION PROVIDED ON THIS WEBSITE OR SERVICES RELATED TO TRANSACTIONS CONDUCTED ON THIS WEBSITE. SCOTLYNN CANNOT GUARANTEE DELIVERY BY ANY SPECIFIC TIME OR DATE. IN ANY EVENT, SCOTLYNN SHALL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS OR INCOME, WHETHER OR NOT SCOTLYNN HAD KNOWLEDGE THAT SUCH DAMAGES MIGHT BE INCURRED, UNLESS SCOTLYNN EXPRESSLY AGREES IN WRITING TO ASSUME SUCH LIABILITY.

(e)     These Terms and Conditions shall not serve to affect or limit the liability of the Carrier performing the transportation services for the CUSTOMER. Instead, the Terms and Conditions of the Carrier shall control the rights and responsibilities between the CUSTOMER and the Carrier. If you have any questions regarding carrier insurance or carrier liability, please contact SCOTLYNN for more details.

(f)     Insurance. CUSTOMER represents and warrants it has insurance or is self-insured to satisfy any damage or loss of freight involving the brokerage services of SCOTLYNN. Furthermore, CUSTOMER acknowledges that SCOTLYNN is not obligated to provide cargo insurance and is not legally liable for any loss, damage or delay of freight. CUSTOMER may, at its sole cost and discretion, buy cargo insurance at CUSTOMER’s desired limits through the assistance of SCOTLYNN or through its own insurance broker.

13. Forum Selection and Choice of Law.

Any claim, dispute or litigation relating to these Terms and Conditions, any Shipment scheduled or tendered hereunder or through SCOTLYNN’s website, or relating to any and all disputes between SCOTLYNN and the CUSTOMER, Shipper and/or Consignee and/or brokers for any CUSTOMER, Shipper and/or Consignee, shall be filed in the state or federal courts embracing Lee County, Florida, and shall be subject to Florida law.

14. Changes to Terms & Conditions.

CUSTOMER agrees to be bound by all of the terms, conditions contained in any credit application. SCOTLYNN may modify these Terms and Conditions from time to time, upon mailing notice of such change to CUSTOMER at the address shown on SCOTLYNN’s records or by posting the most up to date Terms and Conditions on https://www.scotlynn.com/slusa-tac. Such changes shall be effective for all transactions between SCOTLYNN and CUSTOMER after the date of the notice/posting.

15. Website Access.

All ownership rights, intellectual property rights and other proprietary rights relating to the SCOTLYNN website belong to SCOTLYNN. This Agreement does not entail any assignment of any intellectual property to CUSTOMER. Subject to the Terms and Conditions of this Agreement and the due payment of all applicable fees, SCOTLYNN grants CUSTOMER a perpetual, non-exclusive, worldwide, non-transferable license to use and maintain the SCOTLYNN website. The rights granted under this Section are limited to CUSTOMER’s internal purposes only. Any use of the website by any third party or for providing services to any third party is strictly prohibited. Notwithstanding the aforesaid, the website may be used by CUSTOMER, its subsidiaries and affiliates for their internal purposes. CUSTOMER acknowledges and agrees that SCOTLYNN shall have no liability whatsoever towards CUSTOMER under this Agreement.

16. Indemnity and Consequential Damages.

CUSTOMER agrees to release, defend, and hold SCOTLYNN harmless from any and all liability for freight claims, and CUSTOMER waives any right, known or unknown, against SCOTLYNN for any damage or loss of freight involving the brokerage services of SCOTLYNN.

17. No Consequential Damages.

IN NO EVENT SHALL SCOTLYNN BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXAMPLARY, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS OR LOSS OF MARKET, LOSS OF INCOME, DAMAGES ARISING FROM LOSS, ATTORNEYS’ FEES OR PUNITIVE DAMAGES, WRONG DELIVERY, OR DAMAGE TO PROPERTY, DELAYED DELIVERY OR FAILURE TO ATTEMPT DELIVERY, WHETHER OR NOT SCOTLYNN HAD KNOWLEDGE THAT SUCH DAMAGES OR LOSSES MIGHT OCCUR.

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