These Terms and Conditions for Freight Broker Services (“Terms”) are the only terms that govern the Services, defined below, provided by Luxury Auto Transport (“Broker”) to any other party, including, but not limited to, any shipper, consignor, consignee, broker, forwarder, or any other entity claiming an interest in goods for which Services are rendered or otherwise engaging Broker to provide Services (each a “Shipper”). Shipper and Broker may be referred to herein individually as a “Party” and collectively as the “Parties”.
Broker operates as a broker of property registered with the Federal Motor Carrier Safety Administration (“FMCSA”) in Docket Number MC#1608015, and, acting as such, arranges with third party motor carriers of property (each a “Motor Carrier”) for the transportation of freight tendered by Broker’s customers.
Shipper desires to engage Broker to arrange for the transportation of Shipper’s property, goods or motor vehicles, by Motor Carriers operating under their own FMCSA authority as motor carriers.
By requesting or receiving Services from Broker, Shipper accepts these Terms, and in doing so the representative purporting to engage Broker on behalf of Shipper represents and warrants to Broker that he or she has the legal right, authority, and capacity to enter into these Terms on behalf of Shipper and to bind Shipper to the terms and conditions set forth herein. These Terms prevail over any terms and conditions of any invoice, billing statement, confirmation, receipt, bill of lading, contract, or any other document relating to any Services provided by Broker, regardless of whether or when Shipper has submitted its request for proposal, order, or such terms. Provision of Services to Shipper does not constitute acceptance of any of Shipper’s terms and conditions and does not serve to modify or amend these Terms. Broker’s provision of Services to Shipper is conditioned on Shipper’s acceptance without modification of these Terms, and Shipper’s engagement of Broker to provide Services constitutes Shipper’s agreement to all these Terms. Broker reserves the right to change these Terms at any time for any reason or no reason, with or without notice. The version of these Terms in effect as of the date that Shipper requests Services for a specific shipment shall be the version applicable to such shipment.
1.1. Broker agrees, as an independent contractor, to arrange motor carrier transportation of Shipper’s freight, when accepted by Broker (described throughout these Terms as the “Services”), pursuant to these Terms and in compliance in all material respects with all federal, state, and local laws and regulations relating to the Services. Broker shall have exclusive control and direction of Broker’s personnel engaged in providing brokerage Services hereunder and assumes full responsibility for their acts and omissions. The Parties recognize and agree that Broker is not a motor carrier, never takes possession of Shipper’s freight, does not maintain any control over the means and manner of delivery, and shall not itself perform the actual physical transportation of Shipper’s freight as a motor carrier.
1.2. Under no circumstances is Broker to be deemed a motor carrier. In the event Broker is identified as a motor carrier on any document, such designation shall be only for the convenience of Shipper or shall be deemed a mistake but in no event shall the designation have any legal impact or authority to change Broker’s status as a broker.
1.3. Broker shall arrange for the transportation of Shipper’s shipments with Motor Carriers of property that are currently and properly registered with the FMCSA and such State authorities having jurisdiction over their operations.
2.1. Shipper may place an order for requested Services (an “Order”) hereunder, from time to time, either electronically via API Integration or in writing by electronic transmission.
3.1. For Services provided under these Terms, Shipper shall pay Broker the agreed upon freight rates and shall reimburse Broker for the agreed upon surcharges. The freight rate may be agreed via a quote issued by Broker, or an agreed rate schedule, or Broker may provide Shipper with “spot rates” applicable to a specific shipment or series of shipments, which “spot rates” shall be immediately mutually confirmed in writing, or by email. Broker’s invoice shall cover Broker’s commission and all rates and charges of the Motor Carrier. In addition to applicable rates, Shipper will be liable for any charges for accessorial services rendered by Broker or the Motor Carrier that were not anticipated at the time the rates were quoted to Shipper.
3.2. For all rates and surcharges referenced above, Shipper agrees to pay or cause to be paid each invoice in full and without deduction or offset within 15 days of receipt of invoice, unless Shipper in good faith disputes the invoice (in whole or in part), in which case Shipper may withhold payment of the disputed amount. In such case, the Parties shall promptly confer to resolve the dispute and no interest or late payment fee shall apply to the amount withheld by Shipper. However, if it is determined by a court that Shipper wrongfully withheld payment of invoice, interest shall accrue from the due date of the invoice through the date of payment in the amount of 1.5% per month.
Broker agrees that it shall have a dispatch agreement with each Motor Carrier that Broker utilizes to transport freight tendered by Shipper and shall include provisions materially similar to the following:
4.1. The Motor Carriers shall provide (a) proof of valid FMCSA operating authority, (b) certificates of insurance evidencing the coverage required below, and (c) proof that it does not have an “Unsatisfactory” safety rating as determined by the FMCSA. Further, the Motor Carriers shall agree that at no time during the term of its contract with Broker shall it have an “Unsatisfactory” safety rating and shall immediately notify Broker of any change in its safety rating.
4.2. The Motor Carriers shall agree to maintain at all times during the term of its contract, insurance coverage with limits not less than the following:
4.2.1 Motor vehicle liability insurance in an amount not less than $1 Million combined single limit for personal injury, including without limitation bodily injury and death, and property damage;
4.2.2 Cargo insurance that covers the value of the cargo during loading, transit, and unloading with limits of no less than $250,000 per occurrence;
4.2.3 Workmen’s compensation insurance or occupational accident insurance in the amount required by applicable law. It shall be the duty of the Motor Carriers to ascertain and comply with legal requirements, if any, for workmen’s compensation and/or occupational accident insurance.
4.3. The Motor Carriers shall agree to comply with all federal and state laws, regulations, and rules applicable to its operations, including, without imitation, FMCSA regulations.
4.4. The Motor Carriers shall agree that its tariff, service guide, circular or other motor carrier documents shall not apply in any manner to services provided by the Motor Carrier under its contract and shall agree to waive any and all rights to assert any lien, attachment or encumbrance against customer freight.
5. DRIVE-AWAY SERVICES.
Broker may, on an individual request basis, agree to arrange for Drive-Away Services by licensed Motor Carriers (“Drive-Away Services”), but is not obligated to do so under these Terms. If Broker accepts the Drive-Away assignment, Shipper agrees to provide a transportation order with clear identification of the motor vehicles to be picked up, along with any other relevant details required for their identification.
6. RECEIPTS AND BILLS OF LADING.
Motor Carrier will provide Shipper with proof of delivery for each shipment, in the form of a signed bill of lading or electronic proof of delivery. Bills of lading and proofs of delivery will document the count and condition of the freight at both pick-up and delivery. The terms and conditions of any freight documentation used by Shipper, Broker, or Motor Carriers selected by Broker cannot alter or modify these Terms.
7. INSPECTION AND CLAIMS.
7.1. Inspection.
7.1.1 Origin. The Motor Carriers will conduct a walk-around visual inspection of the Shipper’s property, goods, or motor vehicles (“cargo”) at the pickup location. Any observable damage will be noted, and if required in advance by written notice from the Shipper, the Motor Carriers shall verify such damage.
7.1.2 Delivery. At delivery, the Shipper’s authorized agent may conduct an inspection, which shall be signed by both the authorized agent and the Motor Carriers. If there is a dispute regarding any damage, both parties may document their observations in writing. The inspection time will be at least 15 minutes per motor vehicle, up to 1 hour per load.
7.1.3 STI Delivery. If the Motor Carriers deliver after designated hours, the motor vehicle(s) will be “Subject to Inspection” (STI). The Shipper’s authorized agent has up to 2 business days to inspect and send a Letter of Notification (LON) to the Broker and Motor Carriers, including the following details:
Failure to submit the LON as required will result in denial of any claims related to transportation damage.
7.2. Liability Limitation
7.2.1 General. Shipper is solely responsible for ensuring that each vehicle tendered for transport is operable and safe. Shipper will bear all costs incurred by Broker and/or Motor Carrier for any vehicle that becomes inoperable during transport. Broker and Motor Carriers will not be liable for loss or damage to personal property inside the vehicle, other than operator’s manuals or registration papers. Broker and Motor Carriers are not liable for:
7.2.2 Remarketed Motor Vehicles. Shipper must prepare the motor vehicle for transportation by removing or securing non-factory parts and ensuring that alarm systems are disarmed. Broker and Motor Carriers are not liable for damages or losses arising from Shipper’s failure to prepare the vehicle correctly, including minor damages related to road conditions or wear and tear.
7.3. Claims Filing Process.
7.3.1 Broker Assistance. Broker will assist Shipper in filing and processing claims with Motor Carriers. Shipper must provide an invoice and supporting documentation for each VIN to file a claim. Broker will forward the claim to the Motor Carriers and make reasonable efforts to have the claim resolved within 60 days. This does not imply Broker accepts liability for the Motor Carrier.
7.3.2 Claims Deadline. Shipper must file claims for cargo loss or damage with Broker within 9 months and 1 day from the delivery date (or scheduled delivery date in the case of non-delivery). Any civil action against Broker must be filed within 2 years from the date Broker informs Shipper that the Motor Carriers denied part of the claim.
7.3.3 Subrogation. If Broker pays a claim, Shipper assigns its rights to Broker to pursue recovery from the Motor Carriers or another source of loss.
7.3.4 Inspection. Broker and Motor Carriers will have a reasonable opportunity to inspect damaged vehicles and investigate claims. No liability will be incurred if the damage is due to force majeure, Shipper’s actions, or the inherent nature of the cargo.
7.3.5 Salvage Value. If a claim includes a deduction for salvage value, Broker, Motor Carriers, or their insurers are entitled to credit for salvage value, even if salvage is not performed. In cases of total loss, Broker or the Motor Carriers will take title to the vehicle and may seek credit for the salvage value.
7.3.6 Loss Valuation. The value for a total loss of a motor vehicle will be based on the average of clean wholesale values from nationally recognized vehicle market guides, adjusted for equipment, mileage, and condition.
8. INSURANCE.
Broker will maintain insurance coverage at its own expense, as detailed below, and will provide proof upon Shipper’s request:
9. LIMITATION OF LIABILITY.
9.1. Liability. Broker is not a motor carrier and is only liable for loss or damage to cargo caused directly by Broker’s negligent acts or omissions. The motor carrier is primarily liable for cargo damage during transport. The claims process for such damages is governed by the Carmack Amendment, 49 U.S.C. 14706, and related regulations.
9.2. Inspection and Claims. Broker and the Motor Carriers will have the opportunity to inspect damaged cargo. Broker and Motor Carriers will not be liable for loss or damage caused by force majeure, Shipper’s actions, or the inherent characteristics of the cargo.
9.3. Cargo Loss or Damage. If cargo is lost, damaged, or destroyed, Broker’s liability will be calculated based on the lesser of repair costs or cargo value, minus salvage value.
9.4. Broker’s Liability Limitations. Broker’s liability for loss or damage will not exceed the NADA value of the vehicle or $150,000. Shipper must file claims within 180 days of initial notice and take legal action within 2 years.
9.5. Exclusion of Consequential Damages. Broker and Motor Carriers are not liable for consequential, indirect, incidental, exemplary, or punitive damages. Broker is also not liable for identity theft or fraudulent conduct by third parties.
10. INDEMNIFICATION.
10.1. Shipper agrees to indemnify, defend, and hold Broker, along with its employees and agents, harmless from and against any and all liabilities, claims, losses, costs, fines, penalties, expenses (including attorney’s fees), judgments, or demands arising out of or resulting from Shipper’s performance under these Terms. This includes personal injury, property damage, cargo damage, or any combination thereof, suffered or claimed by any individual or entity, if such damage is directly caused by: (i) negligence or intentional misconduct by Shipper; (ii) Shipper’s violation of applicable laws or regulations; (iii) breach of these Terms by Shipper, its employees, or agents; (iv) Broker’s or the Motor Carrier’s compliance with or reliance on Shipper’s instructions or information; (v) a third party seeking to impose liability on Broker regarding cargo loss, damage, or delay exceeding the liability assumed herein; or (vi) requests to cancel services, including charges for services rendered prior to cancellation, or due to incorrect or incomplete information provided by Shipper. The obligations in this section will not apply if the liability arises from Broker’s own negligence or wrongful conduct.
10.2. Broker agrees to indemnify, defend, and hold Shipper harmless from any claims by Motor Carriers for payment, provided Shipper has made timely payment to Broker in accordance with the Terms for the Services underlying the Motor Carrier’s claim.
10.3. Any indemnified Party must promptly notify the indemnifying Party of any claim and tender the defense to the indemnifying Party.
11. CONFIDENTIALITY.
Each Party agrees to protect the other Party’s confidential or proprietary information with the same degree of care that it uses for its own confidential information, but no less than a reasonable degree of care, to prevent unauthorized use, disclosure, or publication. “Confidential Information” includes any non-public information, including business strategies, financial data, trade secrets, Shipper Data, Broker Data, and other proprietary data. The receiving Party will only use the Confidential Information for the purposes outlined in these Terms. The receiving Party is not required to maintain confidentiality if the information: (a) becomes public through no fault of the receiving Party; (b) was previously in the receiving Party’s possession without a confidentiality obligation; (c) is obtained lawfully from a third party not under confidentiality obligations; (d) is required to be disclosed by law or court order, but the receiving Party must provide prompt notice to the disclosing Party.
In case of a breach, the disclosing Party may seek both monetary and injunctive relief, acknowledging that damages may be insufficient. The provisions of this section will survive termination of these Terms.
12. DATA PRIVACY AND SECURITY.
12.1. Shipper Data.
12.1.1. If Broker has access to Shipper Data, it agrees to protect and maintain the privacy and security of that data in compliance with applicable laws. Broker will only use Shipper Data as required for performing services under these Terms or as authorized by Shipper. Broker may retain, use, or disclose de-identified or anonymized Shipper Data. Broker will comply with all applicable laws regarding personally identifiable information (PII) or personally identifiable health information (PHI) and will not accept PII or PHI from Shipper without prior notice and written confirmation. Broker will protect Shipper Data and will not transfer it outside the U.S. without authorization.
12.1.2. Broker will maintain reasonable internal controls, including multi-factor authentication, secure data transmission, and monitoring practices to prevent unauthorized access to Shipper Data.
12.1.3. Broker must notify Shipper of any loss or unauthorized disclosure of Shipper Data promptly.
12.2. Broker Data.
12.2.1. If Shipper receives Broker Data, it agrees to maintain the security and privacy of that data, in accordance with applicable laws. Shipper may only use Broker Data as necessary to fulfill obligations under these Terms. Broker Data will not be used for commercial purposes, and Shipper will not transfer Broker Data outside the U.S. unless authorized.
12.2.2. Shipper will implement reasonable access controls, secure data handling practices, and encryption to protect Broker Data.
12.2.3. Shipper will notify Broker immediately upon discovering any unauthorized disclosure or loss of Broker Data and will indemnify Broker for any resulting claims or damages.
13. ASSIGNMENT.
Neither Party may assign these Terms without the prior written consent of the other Party, which consent will not be unreasonably withheld. Any permitted assignment must be in writing and signed by both Parties. The assignee will be bound by the terms of these Terms.
14. SEVERABILITY.
If any provision of these Terms is deemed invalid or unenforceable by a court of competent jurisdiction, that provision will be severed from these Terms, and the remainder will remain in full force and effect.
15. INDEPENDENT CONTRACTOR.
Broker is an independent contractor. Neither Broker, its employees, agents, nor Motor Carriers are employees or agents of Shipper. No part of these Terms creates or implies an employment, partnership, joint venture, or agency relationship between the Parties. Shipper has no control or supervision over Broker, its operations, employees, agents, or Motor Carriers. Shipper’s requirements for Motor Carriers are meant solely to ensure the provision of effective transportation services and do not constitute control or supervision of Broker or any Motor Carrier.
16. CONSENT TO CONDUCT BUSINESS ELECTRONICALLY.
Each Party agrees to conduct business electronically, including the use and acceptance of electronic signatures (digital or encrypted). Such signatures shall have the same force and effect as manual signatures. This consent extends to the use of electronic methods for executing any document, including supplements, modifications, addenda, amendments, notices, consents, waivers, and any other documents required by these Terms or FMCSA regulations, including shipment invoices, bills of lading, and other shipment-related documentation.
17. FORCE MAJEURE.
Broker’s obligations to perform services, and Shipper’s obligation to use these services, shall be suspended during any period in which either Party is unable to perform due to circumstances beyond their control. These circumstances include acts of God, war, terrorism, fire, floods, epidemics, pandemics, disease, civil unrest, public authority interference, or any other force majeure event. The affected Party must use reasonable efforts to mitigate damages and provide the other Party with prompt notice of the force majeure event.
18. GOVERNING LAW AND VENUE.
These Terms will be governed by and construed in accordance with the laws of the State of Illinois, without regard to any choice of law or conflict of law provisions. The Parties agree to submit to the exclusive jurisdiction of the courts of the State of Illinois, specifically in Cook County, Illinois, and the United States District Court for the Northern District of Illinois, for any legal matters arising out of these Terms. Both Parties knowingly and voluntarily waive their right to a jury trial in any legal proceedings related to these Terms.
19. MARKS; NO PUBLICITY.
Broker shall not use Shipper’s name or identity in advertising or promotional materials without Shipper’s prior written consent. Additionally, neither Party shall disclose or publish the existence or contents of these Terms except as required to perform their operations or as necessary under applicable law.
20. WAIVER.
Failure of either Party to complain of any act or omission by the other Party or to declare the other Party in default, regardless of the duration of such default, will not be construed as a waiver of rights under these Terms. Any waiver must be made in writing and executed by the Party granting the waiver.
21. NO THIRD PARTIES.
These Terms are solely for the benefit of Shipper and Broker, and do not create any enforceable rights or remedies for any third-party individuals or entities. No third party is intended to benefit from or be bound by these Terms.
22. COMPLETE AGREEMENT.
These Terms constitute the entire agreement between the Parties regarding freight brokerage services and supersede all previous agreements, representations, and understandings related to the subject matter. No modifications, amendments, or alterations to these Terms will be valid unless made in writing and signed by both Parties.
23. SURVIVAL.
Any provisions that by their nature are intended to survive the termination of these Terms (such as confidentiality, indemnification, and dispute resolution provisions) will continue in effect after the termination or expiration of these Terms.
24. NOTICE.
All notices required under these Terms will be effective upon receipt and must be in writing. Notices may be delivered electronically, personally, or by regular and certified mail (return receipt requested) to the addresses provided by the Parties.
Luxury Auto Carriers LLC
422 S Main St
Unit #2310
Lombard, IL 60148
ATT: Legal Department
with a copy sent to : [email protected]