Customer Terms and Conditions
Customer Terms and Conditions
Last updated: November 13, 2023
These Customer Terms and Conditions (the “Agreement”) constitute a legally binding contract between the company accepting this Agreement as further described below (the “Customer” or “you”) and Flock Freight, Inc. (“Flock Freight” “Flock” or “we” or “our”).
Flock Freight offers access to an online shipper platform via a website located at app.flockfreight.com and any associated mobile application (the “Flock Platform”). The Flock Platform allows shippers and/or consignees of cargo to connect with motor carriers for the transportation of such cargo. Flock Freight also provides transportation intermediary services as a property broker under Docket Number MC33945, whereby Flock Freight arranges for the transportation of cargo for shippers. Flock Freight does not provide the actual transportation of cargo, which is instead provided by third-party motor carriers (each, a “Carrier” and collectively, “Carriers”). The “Services” are Flock Freight’s property brokerage and logistics services plus any other services, software, or platform offered by Flock Freight related thereto, including the Flock Platform.
This Agreement sets forth the terms and conditions governing any of the Services provided by Flock Freight to Customer. By accessing or using the Flock Platform or Services, you are (i) accepting this Agreement on behalf of yourself and the Customer company, entity, or organization you represent and (ii) representing and warranting that you have the right, authority, and capacity to enter into this Agreement on behalf of yourself and the Customer company, entity or organization you represent.
Customer may not access or use the Flock Platform or Services if Customer does not agree with all provisions in this Agreement. This Agreement is subject to occasional revision by Flock Freight. If an update will materially affect your use of the Services or legal rights, Flock will notify you prior to the update’s effective date (except for changes due to legal or regulatory reasons, which may be effective immediately). Otherwise, updates will be effective as of the date posted on the website containing this Agreement. By continuing to use the Services after the changes become effective, you agree to be bound by the modified Terms. If Flock Freight and Customer have fully executed a separate written, valid contract that governs all or part of the Services, this Agreement shall still govern to the extent it does not conflict with the terms of such other contract.
- Description of Services. Flock Freight will provide Customer access to the Flock Platform via an account, which may be accessed by one or more Customer users authorized to use the account. Customer, through a Customer user or Flock Freight account representative, may submit a request for Flock Freight to arrange for the transportation of a shipment via a Carrier. Customer may cancel a shipment request at any time prior to acceptance by Flock Freight. Flock Freight may reject or decline a shipment request for any reason in its sole discretion. Customer represents and warrants that all shipment information it submits to the Flock Platform will be truthful, complete, and accurate. Customer agrees that Flock Freight has sole discretion to select the Carriers who perform transportation services, and the Carrier shall select the means, route, and procedure to be followed in the handling, transportation, clearance, consolidation, deconsolidation, and delivery of the shipment. Customer agrees that Flock Freight may arrange with Carriers or other third-parties for the consolidation and/or deconsolidation of Customer’s cargo on less-than-truckload, shared truckload, or full truckload shipments, which may be shipped with cargo of other Flock Freight customers.
- Payment Terms.
(a) General. In consideration of Flock Freight’s provision of the Services, Customer shall pay to Flock Freight all applicable charges (collectively, the “Fees”) without offset on the terms set forth below and in the Flock Platform. Customer will pay to Flock Freight the amount of any shipment booked, tendered, or otherwise purchased by Customer on the Platform or through any other means (e.g., by working directly with a representative of Flock Freight to book shipments) and any other amounts otherwise agreed between the parties. In addition, Customer agrees to pay Flock Freight the minimum accessorial rates set forth on Schedule A, attached to this Agreement, when any accessorial event occurs on Customer shipments. Flock may, in its sole discretion, charge Customer more than the stated accessorial rate in such circumstances where charges from the Carrier exceed the minimum rates. Any initial price quote offered by Flock Freight through the Flock Platform or otherwise communicated to Customer by Flock Freight is based on the shipment information provided by Customer. If such shipment information is changed, Flock Freight reserves the right to change the price to reflect the actual shipment characteristics, and Customer agrees to any such changes.
(b) Invoices. Customer will accept Flock Freight invoices via email or other electronic means; and upon request, Flock Freight may mail Customer invoices via US mail. Customer will accept electronic versions of proofs of delivery and other shipping documents. Customer will pay Flock Freight all Fees without offset within 30 days of the invoice date.
(d) Disputes. Customer shall also be liable for any expenses, including attorney’s fees, Flock incurs in collecting its rates and charges. Any amount that is not paid when due will accrue interest at twelve percent (12%) per annum or the maximum rate permitted by applicable law, whichever is less, from the due date until paid. To dispute an invoice amount, Customer must provide written notice to Flock by sending an email to email@example.com within 3 business days of invoice receipt. Such notice must include the invoice number, amount being disputed, and the basis for such dispute. If Customer fails to notify Flock Freight of any invoice dispute within such time period, Customer waives its right to dispute the invoice and must pay the full amount. In any event, Customer must still pay the undisputed portion of each invoice in accordance with the terms set forth herein. Flock Freight shall have a general and continuing lien on any and all property and documents relating thereto of Customer coming into Flock Freight’s, or its Carrier’s, actual or constructive possession, custody or control or en route, which lien shall survive delivery, for all charges (including but not limited to storage charges incurred in order to preserve the property until sale), expenses or advances owed to Flock Freight with regard to the shipment against which the lien is asserted or on any other shipment(s) for Customer. To protect its lien rights, Flock Freight reserves the right to require advance payment of all due charges prior to shipment or release of Customer’s goods.
(e). Credit Checks; Reporting. Customer consents to Flock Freight performing credit and background searches on Customer’s business as Flock Freight deems necessary. Payment terms and credit limits are subject to the sole and absolute discretion of Flock Freight and may be increased, decreased, or wholly revoked at any time.
In no event will Flock Freight have any responsibility for, and Customer will defend, indemnify, and hold Flock Freight harmless from, and will pay and reimburse, any charges imposed by third parties with respect to use of equipment in which cargo tendered by, to or on behalf of Customer is or has been laden, or for charges assessed with respect to storage or handling of any such equipment, including, but not limited to, charges assessed by steamship lines, rail carriers, rail terminal operators, marine terminal operators or port authorities.
- Term and Termination. The term of this Agreement shall commence when Customer first accesses or uses the Flock Platform or Services and shall continue for so long as such access or use by Customer continues. Flock Freight may at any time terminate this Agreement in its sole discretion with or without cause. Upon termination of this Agreement, your account and right to access and use the Services will terminate immediately.
- Carriers and Intermediaries. Flock Freight will evaluate and select Carriers to provide the transportation services in accordance with reasonable industry practices. From time to time, Flock Freight may also tender loads to other intermediaries to arrange for transportation of Customer’s shipment. In such case, the other intermediary will be responsible for the selection and engagement of Carrier (in which case any obligations assumed by Flock Freight to Customer in this Agreement with respect to selection or engagement of Carriers will be deemed to have been complied with if the underlying intermediary engaged by Flock Freight agrees to impose on the Carrier provisions materially similar to those assumed by Flock Freight herein). Each Carrier shall be solely responsible for (i) controlling the method, manner, and means of accomplishing Carrier’s services; (ii) the acts and omissions of each of its employees, agents, contractors, independent contractors, subcontractors and other service providers; and (iii) complying with all laws and regulations applicable to the Carrier. Customer acknowledges and agrees that Carrier services are subject to the Carrier’s terms and conditions of service (to the extent not in conflict with this Agreement), including but not limited to each carrier’s published tariff(s) and/or rules circular(s) and accessorial service charges.
FLOCK FREIGHT IS NOT A MOTOR CARRIER OR FREIGHT FORWARDER. NO ORAL REMARKS, WRITINGS, SHIPPING PAPERS, OR OTHER DOCUMENTS SHALL BE CONSTRUED TO IMPLY THAT FLOCK FREIGHT IS, OR IS HOLDING ITSELF OUT AS, A MOTOR CARRIER OR FREIGHT FORWARDER. FLOCK FREIGHT HAS NO LIABILITY FOR ANY MOTOR CARRIER’S OR MOTOR CARRIER’S DRIVERS’ TRANSPORTATION SERVICES PROVIDED TO ANY CUSTOMER OR ANY OTHER PARTY USING THE FLOCK PLATFORM OR SERVICES.
Customer agrees that the amount Flock Freight pays to any Carrier or intermediary is proprietary business information of Flock Freight that will not be provided to Customer. Customer expressly waives any rights it may have under 49 CFR 371.3 to require such information from Flock Freight.
- Co-Brokerage Services. If Customer is a property broker or freight forwarder that is utilizing the Services to arrange for transportation of cargo on behalf of Customer’s shipper or receiver customers, then Customer represents and warrants that it: (a) will at all times hold valid operating authority from the FMCSA as a property broker or freight forwarder, as applicable; (b) will at all times maintain the surety bond or trust fund required by the FMCSA to perform its services; (c) will immediately notify Flock Freight in writing if its operating authority is suspended or revoked, or if its surety bond / trust fund expires or is otherwise impaired; (d) will at all times operate in compliance with all applicable laws, regulations, and rules; and (e) has the legal authority to ship the cargo that it tenders and to contract with Flock Freight for services relating to the cargo. Customer shall be responsible for payment to Flock Freight as set forth in this Agreement, regardless of whether Customer has received payment from its customer.
- Customer’s Obligations. Customer represents and warrants that all cargo it tenders pursuant to this Agreement, and its acts and omissions incident to such tender, shall comply at all times with applicable laws, regulations, and ordinances, including those related to the tender for transportation of hazardous materials as defined in 49 CFR §§ 172.800 and 173 et seq. Customer represents and warrants that it has all necessary consents and authorizations from its suppliers, customers or other parties, as applicable, to tender shipments tendered under this Agreement. Customer shall ensure that any shipments loaded outside of the presence of the Carrier, tendered in a sealed trailer, or otherwise tendered as “shipper load and count” are stowed, packed, labeled, loaded, blocked, braced, and sealed in accordance with applicable laws, regulations, and industry standards. Customer agrees that in no event will Flock Freight be responsible for securing freight for transportation. Customer shall not in any way designate Flock Freight as the “carrier” on any receipt, bill of lading (“BOL”), manifest, or other shipping document. Such insertion shall be deemed to be for Customer’s convenience and shall not alter Flock Freight’s status as a property broker.
Customer is solely responsible for verifying and ensuring that the Carrier which picks up Customer’s freight is the Carrier that was selected and assigned by Flock Freight as described in the bill of lading, rate confirmation, or quotation. Customer shall indemnify and hold Flock Freight and Carrier harmless from any theft, loss, or liability arising from Customer tendering its freight to any motor carrier other than the Carrier designated by Flock Freight.
- Flock Freight Insurance. Flock Freight will procure and maintain the following types and amounts of insurance: (a) Commercial General Liability Insurance with a combined single limit of $1,000,000 per occurrence; (b) Worker’s Compensation Insurance in accordance with statutory requirements; and (c) Employer’s Liability Insurance with limits no less than $1,000,000 each accident, disease, and employee.
Flock Freight has no obligation to arrange for insurance on Customer’s behalf unless (i) Customer requests Excess Insurance in its shipment quote request, (ii) Flock Freight accepts such request and provides a quote for Excess Insurance in writing, and (iii) Customer pays the insurance premium and other charges quoted by Flock Freight. Any insurance arranged by Flock Freight on Customer’s behalf is Excess Insurance only. “Excess Insurance” means insurance that only covers the portion of a cargo loss/damage claim that exceeds $100,000 per trailer, up to the applicable insurance limit. Excess Insurance does not cover any portion of a cargo loss/damage claim below $100,000.
The Excess Insurance is subject to the terms and conditions of the insurance policy. No coverage will be provided for loss or damage caused by an inherent vice, act of God, delay, improper packaging, or an act or omission of the shipper. Other exclusions also apply. A full copy of the policy will be provided upon request. Requests must be sent to firstname.lastname@example.org. Flock Freight is not an insurance company and does not act as Customer’s insurance broker or agent. Customer is responsible for all insurance premiums and for Flock Freight’s charges to arrange for insurance. Flock Freight’s liability arising from or related to a Customer’s request for Excess Insurance shall be limited to $500 per occurrence.
- Claims. Customer agrees that Flock Freight shall have no liability whatsoever, including in contract, in tort (including negligence or strict liability) or otherwise, for cargo loss, damage, theft, destruction, or delay. At the Customer’s request, Flock Freight may facilitate processing of cargo claims with Carriers on Customer’s behalf; provided, however, that Flock Freight shall have no liability for such cargo claim notwithstanding its assistance. Carriers will agree to be liable for loss or damage to cargo pursuant to 49 USC § 14706 (the “Carmack Amendment”), but only with respect to cargo while moving within the United States or Canada, and then subject to the following limitations: (i) for a truckload shipment, $100,000 per trailer or conveyance; (ii) for a less-than-truckload or “LTL” shipment, the limit per pound for the applicable freight class set forth in the Carrier’s tariff, but in any case not to exceed $25.00 per pound of lost or damaged cargo up to $100,000 per trailer or conveyance; and (iii) for shipments containing household goods, $0.60 per pound of goods lost or damaged, up to a maximum of $100,000 per truckload; and (iv) for a shared truckload shipment, $100,000 in the aggregate per trailer or conveyance, provided that liability to each shipper will be prorated based on the linear feet of the trailer or container utilized by the shipper. Customer must file cargo claims directly with the Carrier within nine (9) months following the date of delivery (or the shipment date if completely lost) and any civil action within two (2) years from the date of the Carrier’s disallowance of all or a portion of the respective claim. This Section will survive any termination of this Agreement. In no event will any Carrier have any liability for cargo loss, damage, or destruction arising in Mexico, and if cargo has moved to, from or within Mexico, there will be a presumption that loss, damage or destruction occurred in Mexico unless overcome by clear and convincing evidence to the contrary. Customer acknowledges and agrees that failure or alleged failure by the Carrier to comply with shipment handling instructions, or a broken, missing or unreadable trailer seal, shall not result in any presumption that food has been adulterated, contaminated, or otherwise rendered unfit for its intended purpose, nor otherwise be grounds for rejection of a shipment or filing of a claim for cargo loss and damage without proof of actual loss or damage. Customer acknowledges and agrees that Flock Freight and Carriers will bear no liability for delay in delivery of cargo.
- Time Limitations. Customer agrees to file any overcharge claims for payments tendered hereunder within one hundred eighty (180) days of the initial invoice date. Flock Freight agrees to file any undercharge claim for additional services not initially billed within one hundred eighty (180) days of the initial invoice date. Any such claim not made within the one hundred eighty (180) day period shall be deemed waived. This Section will survive any termination of this Agreement. Except for overcharge and undercharge claims and cargo claims as described above, all other claims against Flock Freight arising out of or related to the Services must be made by Customer in writing and received by Flock Freight within ninety (90) days of the event giving rise to the claim. Failure to give timely written notice of claim as provided for herein shall constitute a forfeiture by Customer of the right to assert that claim against Flock Freight and shall be a complete defense to any suit or action commenced by Customer. All suits or civil actions against Flock Freight must be filed and properly served on Flock Freight within one (1) year from the date of the loss or the event giving rise to the claim.
- DAMAGES EXCLUSION AND LIMITATION. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, EXCEPT FOR CUSTOMER’S INDEMNIFICATION OBLIGATIONS, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, PUNITIVE, INDIRECT, NON-ECONOMIC, OR EXEMPLARY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT, OR THE RELATIONSHIP OF THE PARTIES HEREUNDER, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFIT, REVENUE, REPUTATION, BUSINESS INTERRUPTION OR SHUTDOWN, OR DAMAGES RESULTING FROM SHIPMENT DELAY, REGARDLESS OF WHETHER THE PARTY TO BE CHARGED HAD NOTICE OF THE POSSIBILITY OF SUCH DAMAGE, AND REGARDLESS OF THE FORM OF THE CLAIM OR CAUSE OF ACTION (WHETHER BASED IN CONTRACT, INFRINGEMENT, NEGLIGENCE, STRICT LIABILITY, OTHER TORT OR OTHERWISE). FURTHER, TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL FLOCK FREIGHT BE LIABLE FOR ANY CLAIMS OR DEMANDS AGAINST CUSTOMER BY A THIRD PARTY ARISING OUT OF OR CONNECTED WITH THE Services, REGARDLESS OF THE THEORY OF LIABILITY GIVING RISE TO SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, FLOCK FREIGHT’s LIABILITY TO CUSTOMER FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT OR THE SERVICE (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO THE GREATER OF (A) FIFTY US DOLLARS ($50 USD) OR (B) THE AMOUNTS CUSTOMER HAS PAID FLOCK FREIGHT IN THE 12 MONTHS IMMEDIATELY PRECEDING THE DATE OF THE OCCURRENCE GIVING RISE TO ANY SUCH CLAIM. THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT.
- Indemnity Obligations. Customer shall indemnify, defend, and hold Flock Freight, Carriers, their affiliated entities, and each of their officers, employees, representatives, and agents (collectively, the “Indemnified Parties”), harmless from and against any and all liability, claims, damages, losses, costs, fines, penalties, expenses (including attorney’s fees), judgments, or demands of any kind whatsoever asserted by third parties, including but not limited to personal injury, property damage, cargo damage, and pollution, suffered or claimed to have been suffered by any person or entity, arising out of (i) the negligence or intentional misconduct of Customer or its officers, employees, representatives, or agents (each a “Customer Party” and, collectively, the “Customer Parties“); (ii) a Customer Party’s violation of applicable laws or regulations; (iii) A Customer Party’s breach of this Agreement; (iv) a Customer Party’s failure to provide complete and accurate instructions regarding safe handling of cargo (including food and hazardous material), or Flock Freight’s reliance on or compliance with information or instructions provided by or on behalf of Customer (including information or instructions regarding food and hazardous material); or (v) a third-party claim related to cargo loss, damage, theft, or delay to the extent such claim seeks to impose liability on Flock Freight in an amount greater than the liability expressly assumed by Flock Freight under this Agreement. The foregoing obligations shall not apply to the extent such liability, claims, or loss are the result of the negligence or intentional misconduct of the specific Indemnified Party seeking to exercise the benefits of this provision. Excluding less-than-truckload Carriers, Flock Freight will make reasonable efforts to contractually require each Carrier to defend, indemnify and hold Customer harmless, from any and all damages, claims or losses, including reasonable attorneys’ fees, arising out of the Carrier’s performance of transportation services to the extent such damages, claims or losses are caused by the negligence or intentional misconduct of the Carrier or its employees or agents. This Section shall survive any termination of this Agreement and each Indemnified Party (other than Flock Freight) is an intended third party beneficiary of this Agreement.
- Prohibited Items. Unless otherwise expressly consented to in writing by Flock Freight, Customer shall not directly or indirectly tender to Flock Freight or Carriers any of the following: accounts, bills, currency, deeds, evidence of debt, money, notes, securities, checks, drafts, commercial papers or other documents of value; Bullion, gold, silver, platinum, copper, or other precious alloys or metals; precious or semi-precious stones; furs or fur garments; jewelry or watches; paintings, statuary or works of art; hazmat products, regardless of class, weight or other characteristics; hazardous waste, municipal solid waste, human waste or trash of any type; carbon black, fireworks, explosives, firearms or weapons or ammunition of any kind; live plants; high Value Goods above $100,000 in value; alcohol, including beer, wine or liquor products; marijuana, including hemp plant leaves, oil or CBD derived from hemp, other products containing any amount of THC or synthetic cannabinoids; fresh fruit or produce; any products requiring controlled temperature handling; property owned by Flock Freight, Inc.; cigarettes, cigars, narcotics or prescription drugs; live animals, birds or fish; tanning beds, automobiles, automotive glass, vehicles, transporting vehicles, trailers or containers, forklifts, lift truck attachments; marble or marble products of granite, slate, including quartz and anything related; property shipped under a bill of lading, contract or other shipping document issued by you for which you assume liability as a “carrier”; property for which a warehouse receipt has been issued; contraband, or property in the course of illegal transportation or trade; property in the care, custody or control of a government postal service, shipments which have been refused, unless refused due to “loss” by a covered Clause of Loss; Canada and Mexico Shipments.Furthermore, customer acknowledges and agrees that shipments are packaged and tendered in such a manner that no specialized handling is required unless specifically requested in writing via the Platform at the time of Customer’s initial request for services with respect to the specific shipment at issue. Flock Freight’s sole obligation with respect to any such instructions is to provide them to the Carrier or any intermediary engaged by Flock with respect to the specific shipment.
- Flock Platform.
(a) Ownership and License. Flock Freight owns and retains ownership in all Flock Freight intellectual property, including without limitation the Flock Platform, including all derivations or data in or related to the Flock Platform, any suggestions for improvement to the Flock Platform and all trademarks, copyrights, trade dress, patents, trade secrets and other intellectual property therein. Subject to Customer’s compliance with this Agreement, Flock Freight grants Customer a limited, non-exclusive, non-assignable, non-sublicensable, revocable, non-transferable license to access and use the Flock Platform. Any rights not expressly granted herein are reserved by Flock Freight. Flock Freight does not convey or grant Customer any rights in or related to the Flock Platform except for the foregoing limited license.
(b) Account. Flock Freight will provide Customer access to the Flock Platform via an account, which may be accessed by one or more Customer users authorized to use the account. Customer, through a Customer user or Flock Freight account representative, may submit shipment requests and accept quotes to transport a Customer shipment. Customer may delete its account for any reason at any time by contacting Flock Freight or following the instructions on the Flock Platform. Customer shall take all possible measures to ensure that its login credentials remain confidential and must immediately notify Flock Freight in writing of any suspected or actual unauthorized use of Customer’s account or other data or security breach. Customer is fully responsible for all activities that occur under its account, and Flock Freight is not liable for any loss, damage, or third party claims arising from Customer’s failure to comply with the requirements herein.
(c) Phone Calls and Text Messages. Flock Freight may contact Customer via phone call and/or text messages at any phone number provided by Customer to Flock Freight. Customer consents to receive such phone calls and text messages, whether sent through an automatic telephone dialing system or other manner, including for marketing or promotional purposes. Customer may opt out of such text messages by contacting Flock Freight, following the “opt-out” instructions in the text message, or editing its account settings. Message and data rates may apply.
(e) Shipping Documents. Customer may use the Flock Platform’s system-generated BOL, and if so, Customer shall complete all documents accurately in light of the services being sought, and the pick up or destination requested. If Customer fails to timely and properly complete the appropriate shipping documents, including a BOL, Flock Freight may, at its option but without obligation, complete, correct, or replace the documents. Customer shall hold Flock Freight harmless from all losses, liability, or third party claims for such undertaking by Flock Freight on behalf of Customer.
THE FLOCK PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” FLOCK FREIGHT HEREBY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, THAT ARE NOT EXPRESSLY SET OUT IN THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. FLOCK FREIGHT MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE THAT THE FLOCK PLATFORM WILL BE UNINTERRUPTED; COMPLETE, SECURE; ERROR-FREE; ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, OR SAFE.
- Confidentiality. Each party who receives confidential information shall protect and keep in confidence any confidential or proprietary information, including but not limited to non-public trade secrets, technical, business, and financial information, intellectual property, or any other information that a party reasonably may consider confidential, of the disclosing party using the same degree of care, but not less than a reasonable degree of care, that the receiving party uses to protect its own confidential information of like nature, to prevent the unauthorized use, disclosure, dissemination, or publication of such confidential information. The receiving party shall use the confidential information of the disclosing party only for the express purposes set forth in this Agreement. The provisions of this Section shall survive the termination of this Agreement.
- Force Majeure. Neither party shall be liable for default or delays in performance, loss or damage to goods, or breach of this Agreement due to causes beyond its reasonable control, including but not limited to: an act or threatened act of God, strike or labor disturbance, pandemic or public health emergency, act of the public enemy, war, terrorism, invasion, insurrection, riot, protest, civil unrest, fire, storm, flood, ice, earthquake, natural disaster, explosion, epidemic, disease, closure of public roads; a cyber attack, data breach, identity theft, theft, or any other fraudulent or criminal act by a third party; an order or act by a governmental authority, any other cause or causes beyond such party’s reasonable control. The foregoing shall not excuse Customer’s failure to make payments to Flock Freight in accordance with the terms of this Agreement.
- Logo Usage. Customer hereby grants Flock a revocable, perpetual, worldwide license to publish Customer’s name and logo and associated trademarks on Flock’s website and in other marketing collateral to identify Customer as a customer of Flock.
- Miscellaneous. This Agreement embodies the entire understanding between the parties with respect to the subject matters addressed herein and therein, and there are no agreements, understandings, conditions, warranties, or representations, oral or written, expressed or implied, with reference to the subject matter hereof that are not merged herein. The parties hereby represent that they have full power and authority to enter into and perform this Agreement and the parties know of no contracts, agreements, promises, or undertakings that would prevent the full execution and performance of this Agreement. If any provision of this Agreement is held to be unenforceable, the remaining provisions will remain in effect and the parties will negotiate in good faith a substantively comparable and enforceable provision to replace the unenforceable provision. This Agreement, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Flock Freight’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. Flock Freight may assign this Agreement in whole or in part (and without notice to Customer) to its parent, subsidiaries, affiliates or any other related entity, or in connection with a merger, acquisition, corporate reorganization, stock sale or sale of all or substantially all of its assets. This Agreement cannot be amended by Customer unless via a writing signed by an officer of both Flock Freight and Customer. Each party agrees that electronic signatures, whether digital or encrypted, of this Agreement are intended to have the same force and effect as manual signatures.
- Attorney’s Fees, Venue, Governing Law. This Agreement shall be construed in accordance with and is governed by the laws of the State of Delaware. In the event of any dispute arising out of this Agreement, including the interpretation, enforceability, performance, breach, termination or validity thereof, a party’s sole recourse shall be exclusively through binding and confidential arbitration. Before submitting an arbitration demand, the party bringing the claim shall first attempt to informally negotiate in good faith a resolution with the other party for a period of not less than thirty (30) days.
Arbitration proceedings shall be conducted under the rules of the Transportation ADR Council, Inc. (the “ADR”). The arbitration shall be conducted before one arbitrator from the ADR who shall be selected by application of the ADR rules, or by agreement of the parties. Upon agreement of the parties, arbitration proceedings may be conducted outside the administrative control of the ADR. Arbitration proceedings shall be conducted in San Diego County, California, or at such place as agreed upon in writing by the parties. Any arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act.
The decision of the arbitrator shall be binding and final and the award of the arbitrator may be entered as judgment in any court of competent jurisdiction. The prevailing party shall be entitled to recovery of costs, expenses and reasonable attorney fees as well as those incurred in any action for injunctive relief or judgment, or in the event further legal action is taken to enforce the award of the arbitrator.
The parties may also proceed in small claims court in San Diego County, California to resolve any dispute where reasonably expected damages are less than $10,000. At any time, either party may apply to a court of competent jurisdiction in San Diego County, California for injunctive or other equitable relief. In the event that either party is granted equitable relief, the party against whom judgment is entered shall be liable for all costs and expenses incurred by the prevailing party including, but not limited to, reasonable attorney fees.
The parties agree that this Section is reasonable due to the commercial circumstances of the proposed relationship and therefore waive any defense or objection to such exclusive jurisdiction based on forum non-conveniens or similar grounds. This Section will survive any termination of this Agreement.
If you have any questions about our terms and conditions, you can contact us:
- By email: email@example.com
- By mail: 701 S. Coast Hwy 101, Encinitas, CA 92024
Lumper charges will apply based on the actual charges incurred from the Carrier.
Layover is charged at $250 per day.
Driver assist rates are as follows: $150 for any labor, including but limited to moving pallets and loading or unloading services.
Detention is charged at $60 per hour after 2 hours of waiting time at any loading or unloading facilities and charges will be rounded up to the nearest per minute increment.
Truck order not used (TONU) is charged at $250 if the load is not canceled at least 24 hours prior to pickup.
Out of Route Miles charge of $1.50 per mile applies when the actual mileage exceeds the planned mileage.
Stop-Off charges will apply based on the number of additional stops. An additional stop is defined as a pickup or delivery point not including the original origin and final destination. The schedule is as follows: $75 (1st), $100 (2nd), $125 (3+).
Any other accessorial or similar charges, including but limited to TWIC escort fees, scale ticket costs, toll charges, late fees, trailer wash fees, pinwheeling costs, permit costs, etc. that are incurred by the Carrier on the Customer’s shipment will be charged to and paid by Customer.