a. “XXII” means XXII Century, Inc.
b. “Payor” shall mean the person responsible for payment of XXII’s transportation charges.
c. “Shipper” shall mean the consignor, the person that initiates a shipment transported by or for XXII, the person that benefits from the transportation services, and the owner of legal or equitable title to the goods transported by or for XXII.
d. “Transportation” shall mean line-haul services, loading and unloading, lumper services, detention, accessorials, pallet fees, fuel surcharges, and delivery services.
- Payment of Charges:a. XXII’s transportation charges shall be paid in full within fourteen (14) days of receipt of XXII’s invoice. In the event payment is not made within thirty (30) days of the date of XXII’s invoice, XXII shall be entitled to interest at the rate of 1.5% per month on such amounts remaining unpaid, or the maximum legal rate of interest, whichever is lower.
b. For shipments where the Bill of Lading is marked “Collect”, the Consignee shall be primarily responsible for the payment of XXII’s transportation charges.
c. For shipments where the Bill of Lading is marked “Third Party Payor” or where the Bill of Lading contains words to similar effect, the Shipper and Consignee (in addition to the party identified as “Third Party Payor”) shall nonetheless be primarily responsible for the payment of XXII’s transportation charges.
d. For shipments where the Bill of Lading is marked “Prepaid” and for all other shipments, the Shipper shall be primarily responsible for the payment of XXII’s transportation charges.
e. For all shipments, regardless of the allocation of payment responsibility on the face of the Bill of Lading, the Shipper and Consignee shall be liable for the payment of XXII’s line-haul charges.
f. Payor agrees that it shall not setoff or deduct any amounts due to XXII for transportation charges for any reason including, but not limited to, any cargo claims Payor, Shipper, Consignee, or any third party may assert against XXII.
g. Payor shall notify XXII of any disagreement Payor or Shipper has with any amount invoiced by XXII for transportation charges no later than sixty (60) days following receipt of XXII’s invoice. Payor and Shipper waive any objection to the amount invoiced if Payor does not provide XXII, in writing, a statement setting forth the reasons that Payor disagrees with the amount invoiced, within the time allotted herein.
h. In any action for the recovery of any charges due to XXII under this Agreement, XXII shall be entitled to recover all expenses incurred by XXII including, but not limited to, XXII’s reasonable attorneys’ fees.
- Liability for Cargo Loss and Damage:
a. XXII’s liability for claims for cargo loss, damage, theft, destruction, contamination, spoilage, or other injury to property shall be governed by 49 U.S.C. § 14706 regardless of whether the shipment is interstate or intrastate in nature. XXII shall not be liable for injury to cargo caused by (a) an act or default of the Shipper, Consignee, owner, or their agents; (b) an act of God; (c) an act of public authority; (d) the inherent vice of the goods transported; or (e) freezing or spoiling of any perishable goods (provided XXII has not specifically consented to maintain temperature control on a shipment, and such consent is communicated in writing, prior to acceptance of the shipment by XXII).b. Unless Shipper or Payor purchases excess liability in strict compliance with the terms set forth in subparagraph 3(c) below, XXII’s liability for any cargo loss, damage, theft, destruction, contamination, spoilage, or other injury to property shall not exceed the lesser of the following:
i. $1.00 per pound; or
c. XXII’s rates for the transportation of cargo, whether provided in a written contract or otherwise, are dependent on the value of the cargo, specifically on the limitations of liability described in subparagraph 3(b). IF SHIPPER OR PAYOR DESIRES TO PURCHASE LIABILITY LIMITS IN EXCESS OF THOSE DESCRIBED IN SUBPARAGRAPH 3(B), SHIPPER AND PAYOR MUST COMPLY WITH THE FOLLOWING PROVISIONS:
i. Shipper must notify XXII, in writing, no less than forty-eight hours prior to pickup of the shipment for transportation (1) stating that the Shipper chooses to purchase liability limits in excess of those described in subparagraph 3(b), (2) specifically identifying the freight subject to higher liability limits or full value, and (3) identifying the value of the shipment.
ii. Prior to releasing the shipment to XXII, Shipper must acknowledge and accept in writing the freight rate offered by XXII pursuant to paragraph 3(c)(i).
iii. The Shipper must place the following notification on the bill of lading:
“This shipment is subject to full liability under 49 U.S.C. § 14706”
iv. Failure of Shipper to comply with the foregoing conditions will be deemed a waiver by Shipper of its request for higher liability.
v. In no event shall XXII be liable for more than the actual value of the goods.
d. XXII DOES NOT AGREE AND SHALL NOT UNDER ANY CIRCUMSTANCES BE LIABLE FOR CONSEQUENTIAL DAMAGES ARISING FROM FREIGHT LOSS, DAMAGE, OR DELAY, REGARDLESS OF NOTICE.
e. In the absence of an agreement to the contrary, Payor may not withhold payment on XXII’s invoices pending resolution of outstanding freight loss, damage, or delay claims. To the extent Payor wrongly withholds payment of XXII’s freight charges in derogation of this paragraph, Payor agrees to pay XXII all reasonable attorneys’ fees incurred by XXII in pursuing collection of said freight charges due XXII.
- Claims Procedure: As a mandatory and non-waivable condition precedent for filing suit and a condition precedent to any recovery, claims for freight loss, damage, or delay must be filed in writing with XXII within nine (9) months of the date of delivery, or date of scheduled delivery in the event of non-delivery. Claims must strictly comply with the claim filing requirements of 49 C.F.R. Part 370. All claims must identify the shipment involved, must assert liability for a specified amount of money, and must be supported by copies of the bill(s) of lading, delivery receipt(s), and invoices or other documents substantiating the claim amount. Any civil action against XXII for injury to cargo shall be filed no later than two (2) years from the date XXII provides written notice that XXII has disallowed any part of the claim specified in the notice of claim.
- Control of Trailer: Unless Shipper specifically requests “Exclusive Use” of XXII’s trailer in writing prior to tender of the shipment, no shipment shall be entitled to the exclusive use of XXII’s trailer in which the shipment is to be transported, and XXII has the unrestricted right to select the trailer for the transportation of a shipment, and load other freight on the trailer.
- Free Time: On each separate shipment, two (2) hours free time is allowed in the aggregate for all stops including but not limited to at the shipping location or consignee’s location.
- Detention: When, due to no fault, negligence, or disability of XXII, the loading or unloading of freight or the pick up or delivery of any trailer is delayed beyond the Free Time, Payor and Shipper and Consignee (to the extent they are not the Payor) agree to pay XXII a charge for detention at the rate of $50.00 for each thirty (30) minute duration, or fraction thereof, that XXII is forced to wait beyond Free Time. Time consumed in loading or unloading shall commence from the time of arrival of the XXII’s vehicle at the location of the facility to which XXII has been directed to load or unload (or at the time of constructive placement) and shall cease upon a signature being given to XXII by the consignee on the bill of lading or other delivery receipt upon completion of unloading.
- Consent to Jurisdiction / Venue: Payor and Shipper and Consignee (to the extent they are not the Payor) consent to the personal jurisdiction of the State and Federal Courts of Illinois and the State and Federal Courts located in DuPage County and Cook County, Illinois shall be the exclusive venue for filing all civil actions arising out of the transportation services performed, or to be performed, by XXII.
- Choice of Law: The transportation provided by XXII is performed pursuant to the statutes and laws of the United States and the State of Illinois and the laws of the State of Illinois shall govern the interpretation and performance of these terms to the extent that Federal law does not so govern.
- Hazardous Materials: XXII will not accept hazardous materials or dangerous goods of any kind in the performance of its operations. Neither the Shipper, nor any other person listed on the Bill of Lading or otherwise acting on their behalf, shall tender hazardous materials or dangerous goods to XXII for any purpose whatsoever. To the extent XXII inadvertently accepts hazardous material or dangerous goods, the Shipper and all other persons listed on the bill of lading shall fully and completely indemnify, defend, and hold XXII harmless for any and all losses, damages, and expenses, including reasonable attorney’s fees, hereinafter incurred and against any actions and claims made against XXII caused by or arising out of the transportation of said hazardous materials or dangerous goods.
- Packaging and Labeling by Shipper: For all transportation provided hereunder, Shipper certifies that all shipments tendered to XXII will be packaged securely, properly labeled, and properly described on a bill of lading. XXII shall not be responsible for any loss, damage, penalty, or fine that may be caused by the Shipper’s failure to properly package and label the shipment, or from the Shipper’s failure to provide XXII with the complete and accurate bill of lading. The Shipper agrees to indemnify and hold XXII harmless from all damages, costs, claims, fines, and expenses (including attorneys’ fees) incurred by XXII as a result of loss, damage, or delay to cargo, or injuries to third parties, caused by improper crating, labeling, or packaging.
- Shipper Load and Count: XXII shall not be responsible for verifying the count or amount of freight on any shipment tendered to XXII loaded by the Shipper, or its agent, on which a seal is placed. The Shipper agrees to indemnify and hold XXII harmless for all damages, costs, claims, and expenses (including attorneys’ fees) incurred by XXII as a result of a claimed loss due to undercount on a shipment loaded by Shipper on which a seal is placed and remains intact through delivery. On Shipments where a seal has been affixed to XXII’s Trailer and the seal remains unbroken, XXII shall have no liability for claims of shortage or claims of damage due to shifting in the Trailer.
- Prohibited Items and Items of Extraordinary Value: The following property will not be accepted for shipment by XXII: Alcoholic Beverages, Jewelry, Animals, Letters, Articles of Extraordinary Value, Mobile Telephones, Museum Exhibits or Articles of Antiquity, Asbestos, Notes, Bank Bills, Original Works of Art, Coins, Money, Postage Stamps, Currency, Precious Stones, Deeds, Revenue Stamps, Drafts, Guns and ammunition, Tickets, Fireworks, Tobacco and Tobacco Products, Hazardous Materials and Hazardous Waste, Household Goods and Video gaming machines.Shipper agrees to defend, indemnify, and reimburse XXII for any physical harm, expenses (including reasonable attorneys’ fees), fines, damage, or liability that results in any way from the tender or transportation of any prohibited or restricted article as identified above.
As used herein, Articles of Extraordinary Value shall include commodities and/or items tendered to XXII with an invoice value exceeding $200,000.00 per truckload shipment. Such commodities will not be accepted by XXII for transportation without a specific written request by the Shipper, accepted in writing by XXII, expressly approving acceptance of such commodities and/or items for transportation. Commodities inadvertently accepted by XXII with an invoice value exceeding $200,000.00 per truckload without a specific written request by Shipper and express written acceptance by XXII will be considered released to XXII by the Shipper at $1.00 per pound or a value of $200,000.00, whichever is less.
- Stop in Transit / Refusal of Delivery:a. If the cargo is stopped and held in transit upon the request of the Shipper or other party entitled to make such request, or if the Consignee refuses the shipment tendered for delivery, or if XXII is unable to deliver a shipment because of a fault or mistake of the Payor, Shipper, Consignee, or their agents, XXII’s liability shall then become that of a warehouseman. XXII will promptly attempt to provide notice, by telephone or e-mail, to the Shipper or other party designated to receive notice on the bill of lading. Storage charges shall start commencing on the next business day. XXII may place the shipment in public storage at the Shipper’s expense and without liability to XXII.
b. If, in the event of a rejection of a shipment at destination, XXII does not receive disposition instructions within 10 days of that notification, XXII may offer the shipment for sale at a public auction or through other commercially reasonable sale of the cargo, and XXII shall have the right to offer the cargo for sale. The proceeds from such sale will be applied to XXII’s invoice for transportation, storage, attorneys’ fees, costs of sale, and other reasonably-related charges. If there is a balance remaining after all charges and expenses (including reasonable attorneys’ fees) have been paid, such balance will be paid to the owner thereof, upon claim and proof of ownership. When perishable goods cannot be delivered and disposition is not given within a reasonable time, XXII may dispose of such perishable property to the best advantage. The Payor and Shipper and Consignee will be responsible for the balance of charges not covered by the sale of the goods.
- Indemnity: Shipper shall indemnify, defend, and hold harmless XXII, its officers, directors, employees, drivers, successors, and assigns (“Indemnified Parties”) from any and all liabilities, fines, judgments, claims, and expenses (including reasonable attorneys’ fees) resulting in personal injury, death, loss or destruction of property, or consequential and other damages arising out of a material breach of this Agreement by Shipper or caused by the negligence of Shipper, its employees, agents, or representatives.
- Damage to XXII’s Equipment: Shipper agrees that Shipper shall be responsible for all expenses incurred by XXII for the repair and/or replacement of XXII’s trailers and other equipment arising as a result of the process of loading XXII’s trailer or due to incorrectly-secured cargo.
The Terms and Conditions set forth herein are material terms and conditions applicable to all shipments all interstate and intrastate shipments transported by XXII Century, Inc. (“XXII”):