Customer Terms and Conditions
Customer Terms and Conditions
Last updated: February 22, 2022
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” or “we”).
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 by utilizing independent, third-party motor carriers (each, a “Carrier”). The “Flock Freight 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 Flock Freight Services provided by Flock Freight to Customer. By accessing or using the Flock Platform or Flock Freight 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/or the Customer company, entity or organization you represent.
By appointing Flock Freight to provide Flock Freight Services and/or accessing the Flock Platform, Customer expressly accepts this Agreement. Customer may not access or use the Flock Platform or Flock Freight Services if Customer does not agree with all provisions in this Agreement. This Agreement is subject to occasional revision by Flock Freight. In the event of any material changes made to the Agreement, Flock Freight will notify you by electronic mail, or other means of communication. Any changes to this agreement will be effective upon the earlier of (a) the date you accept the new terms or (b) thirty (30) calendar days following your receipt of the notice of the changes. These changes will be effective immediately for new users of the Flock Freight Services. Continued use of the Flock Freight Services following notice of such changes shall indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes. If Flock Freight and Customer have fully executed a separate written contract that governs all or part of the Flock Freight 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.
- Rates and Charges. In consideration for the Flock Freight Services, Customer shall pay Flock Freight the applicable charges described below and pursuant to the terms herein. For each shipment accepted by Flock Freight, Customer agrees to pay to Flock Freight the amount of the shipment price quoted by Flock Freight and accepted by Customer via the Flock Platform, or such other amount agreed to by the parties in writing, which may include an electronic rate confirmation and communication via email. Customer’s tendering of a shipment to Flock Freight after receiving a price quote or rate confirmation shall constitute Customer’s acceptance of the price contained therein. In addition, Customer shall also pay any applicable accessorial or similar charge incurred for the shipment, which may include but not be limited to detention, lumper charges, layover, “truck ordered not used” fees, extra stop charges and driver assist charges. Flock Freight reserves the right to revise such quoted shipment price, even after Customer’s original acceptance, to reflect the shipment actually tendered if Customer provided inaccurate or incomplete shipment information at the time of booking. Customer shall pay all charges without offset within thirty (30) days of the invoice date. Customer shall also be liable for any expenses, including attorney’s fees, Flock Freight 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. Timely payment is a condition precedent to the processing of a cargo loss or damage claim.
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. Customer is responsible for payment of all applicable charges, including any adjustments, when Customer pays via credit card or electronic funds. Customer authorizes Flock Freight to charge the Customer’s credit card or bank account for any charges for payments required herein.
- Term and Termination. The term of this Agreement shall commence when Customer first accesses or uses the Flock Platform or Flock Freight 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 Flock Freight Services will terminate immediately.
- Carriers and Intermediaries. Flock Freight will evaluate and select Carriers to provide the transportation services in accordance with its own internal policies and procedures. 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 of the transporting motor carrier. 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; (iii) complying with all laws and regulations applicable to the motor carrier; and (iv) any cargo loss or damage in accordance with applicable United States federal law and/or the contract between Flock Freight and Carrier. Customer acknowledges and agrees that shipments transported with less-than-truckload carriers are subject to the terms and conditions of such carriers, including but not limited to each carrier’s published tariff(s) and/or rules circular(s).
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 A MOTOR CARRIER OR FREIGHT FORWARDER. FLOCK FREIGHT HAS NO LIABILITY FOR ANY MOTOR CARRIER’S OR ITS DRIVERS’ TRANSPORTATION SERVICES PROVIDED TO ANY CUSTOMER OR ANY OTHER PARTY USING THE FLOCK PLATFORM OR FLOCK FREIGHT 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.
- 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 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 customers or other parties, as applicable, to tender shipments tendered under this Agreement. Customer agrees not to provide Flock Freight or Carriers with any trailer seal policies and agrees that Flock Freight will not accept to arrange for the shipment of any cargo in a sealed trailer or requiring a sealed trailer. Customer shall ensure that any shipments 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 acknowledges that Flock Freight will never be in physical possession of any shipment and will not 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 or Customer’s oversight and shall not operate to alter Flock Freight’s status as a property broker.
- 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) Contingent Cargo Liability Insurance against Flock Freight’s contractual liability, if any, for $100,000 per trailer or conveyance; and (c) Worker’s Compensation Insurance in accordance with statutory requirements; and (d) Employer’s Liability Insurance with limits no less than $1,000,000 each accident, disease, and employee. Customer acknowledges that Flock Freight’s maintenance of contingent cargo insurance in no way places any legal or contractual liability on Flock Freight that is not otherwise explicitly stated herein.
- Claims. Customer agrees that Flock Freight shall have no liability for cargo loss, damage, destruction, or delay. 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 with any such claim. Carriers will be liable for loss or damage to cargo pursuant to 49 USC § 14706 (the “Carmack Amendment”), subject to a limitation of $100,000 per trailer or conveyance or $25.00 per pound for less-than-truckload shipments. Customer must file cargo claims directly with a Carrier within nine (9) months following the date of delivery and any civil action within two (2) years from the date of a Carrier’s denial of all or a portion of the respective claim. This Section will survive any termination of this Agreement.
- Time Limitations. Customer acknowledges and agrees that Flock Freight and Carriers will bear no liability for delay in delivery of cargo. 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 as described above, all other claims against Flock Freight arising out of or related to the Flock Freight 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. 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 OR INCOME OR BUSINESS INTERRUPTION, 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, 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 FLOCK FREIGHT SERVICES, REGARDLESS OF THE THEORY OF LIABILITY GIVING RISE TO SUCH DAMAGES.
- Indemnity Obligations. Customer shall indemnify, defend, and hold Flock Freight (and its employees and agents) and Carriers, harmless from and against any and all liability, claims, losses, costs, fines, penalties, expenses (including attorney’s fees), judgments, or demands on account or damage of any kind whatsoever asserted by third parties, including but not limited to personal injury, property damage, cargo damage, suffered or claimed to have been suffered by any person, arising out of Customer’s acts and omissions to the extent such claim is caused by (i) the negligence or intentional misconduct of Customer; (ii) Customer’s or its employees’ or agents’ violation of applicable laws or regulations or breach of this Agreement; or (iii) Customer’s failure to provide complete and accurate instructions regarding safe handling of food, or Flock Freight’s reliance on Customer’s instructions for safe handling of food. The foregoing obligations shall not apply to the extent such liability, claims, or loss are the result of the negligence or other wrongful conduct of the indemnitee. Excluding less-than-truckload carriers, Flock Freight will contractually require each Carrier to defend, indemnify and hold Customer (and Customer’s officers, employees, and agents) harmless, from any and all damages, claims or losses, including reasonable attorneys’ fees, arising out of the Carrier’s performance of transportation services provided herein to the extent such damages, claims or losses are caused by the negligence or intentional conduct of the Carrier or its employees or agents. This Section shall survive any termination 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 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; fireworks, explosives, firearms or weapons of any kind; live plants; high Value Goods above $100,000 in cargo; alcohol, including beer, wine and 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 of any refrigerated products; property owned by Flock Freight, Inc.; cigarettes, cigars, narcotics and prescription drugs; live animals, birds or fish; automobiles, vehicles, transporting vehicles, trailers or containers; 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.
- Flock Platform.
(a) Ownership and License. Flock Freight owns and retains ownership in the Flock Platform and all intellectual property therein. Subject to Customer’s compliance with this Agreement, Flock Freight grants Customer a limited, non-exclusive, 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 maintain the confidentiality of its login credentials and must immediately notify Flock Freight of any suspected or actual unauthorized use of Customer’s account or other security breach. Customer is fully responsible for all activities that occur under its account, and Flock Freight is not liable for any loss or damage 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, and 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 liability 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; SECURE; ERROR-FREE; ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, OR SAFE.
- Confidentiality. Each party shall protect and keep in the strictest confidence any confidential or proprietary information of the other 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 considered to be in default or breach of this Agreement, and shall be excused from performance or delays in performance, if and to the extent such default, breach or non-performance arises out of any act of God, strike or labor disturbance, pandemic or public health emergency, act of the public enemy, war, invasion, insurrection, riot, fire, storm, flood, ice, earthquake, explosion, epidemic, closure of public roads, cyber attack, order or act by a governmental authority, any other cause or causes beyond such party’s reasonable control. The foregoing shall not apply to Customer’s failure to make payments to Flock Freight in accordance with the terms of this Agreement.
- 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. The rights and obligations hereunder are personal to each party to this Agreement, and this Agreement shall not be assignable or otherwise transferable by either party, in whole or in part, without the written consent of the other party, and any such attempted assignment shall be void and of no effect without the advance written consent of the other party, such consent not to be unreasonably withheld or delayed.
- 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 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 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: firstname.lastname@example.org
- By mail: 701 S Coast Hwy 101 Encinitas, CA 92024