Terms of Service
FGS 100 Terms and Conditions
For Customers, Motor Carriers, Brokers and Agents
VERSION DATE 1/1/2019
1. TERMS AND CONDITIONS OF SERVICE
These Falcone Global Solutions, LLC’s (“FGS”) FGS 100 Terms and Conditions of Service (“T&C”), constitute a legally binding contract between FGS, the Customer (as defined herein), and any transportation service provider hired by FGS.
For purposes of Falcone Global Solutions, LLC’s (“FGS”) FGS 100 Terms and Conditions (“T&C”), the following definitions shall apply:
A. “Carrier” means an interstate and intrastate for-hire motor carrier that transports freight pursuant to the Carrier’s duly issued Federal Motor Carrier Safety Administration (“FMCSA”) operating authority.
B. “Broker” means a property broker that arranges for freight to be transported by Carriers pursuant to the Broker’s duly issued FMCSA operating authority.
C. “Agent” means an overseas international freight forwarder or other transportation service provider.
D. “Customer” means a third party that hires FGS for transportation and logistics services.
E. “TSPs” means Carrier, Broker, and Agent, collectively.
3. REPRESENTATION AND WARRANTIES
A. Carrier represents and warrants to FGS as follows:
(i) Carrier is in, and shall, maintain compliance during the term of this Agreement, with all applicable federal, state and local laws relating to the provision of its services;
(ii) Carrier is duly authorized to provide transportation of freight under contracts with shippers, receivers and/or FGS;
(iii) Carrier shall transport all freight under its own operating authority and subject to the terms of this T&C;
(iv) Carrier does not have an “Unsatisfactory” safety rating and will notify FGS in writing immediately if its safety rating is changed to “Unsatisfactory” or “Conditional”; and
(v) Carrier will not re-broker, co-broker, subcontract, assign, interline, or transfer the transportation of shipments hereunder to any other persons or entity conducting business under a different operating authority, without prior written consent of FGS. If Carrier breaches this representation and warranty, FGS shall have the right of paying the monies it owes Carrier directly to the delivering carrier, in lieu of payment to Carrier. FGS’s payment to the delivering carrier shall not release Carrier from any liability to FGS under this T&C. In addition to every remedy available to FGS in law or equity, Carrier will be liable to FGS for consequential damages should Carrier violate this representation and warranty.
(vi) Prior to commencement of any bond claim against surety or legal action against Falcone Global Solutions, LLC, successors, heirs, carrier submits to 7F of arbitration rule in FGS 100 Rules and/or a settlement between the parties.
B. Broker represents and warrants to FGS as follows:
(i) Broker is in, and shall, maintain compliance during the term of this Agreement, with all applicable federal, state and local laws relating to the provision of its services;
(ii) Broker is duly authorized to arrange for the transportation of freight under contracts with shippers, receivers and/or FGS; and
(iii) Broker will only utilize carriers with whom Broker has executed bilateral contracts (e.g., Broker-Carrier Agreements).
A. Carrier shall defend, indemnify and hold harmless FGS and the applicable Customer from any claims, actions, losses, fines, fees, penalties and/or damages (collectively, “Claims”) arising out of or related to (i) loss, damage, property or injury including death, (ii) violation of any law, statute, ordinance or regulation, (ii) Carrier’s and its contractor’s acts or omissions, (iii) Carrier’s performance or failure to perform its services hereunder, (iv) cargo loss or damage, and/or (v) Carrier’s breach of this Agreement.
B. Broker shall defend, indemnify and hold harmless FGS and the applicable Customer from any claims, actions, losses, fines, fees, penalties and/or damages (collectively, “Claims”) arising out of or related to (i) loss, damage, property or injury including death, (ii) violation of any law, statute, ordinance or regulation, (ii) Broker’s, its contracted carrier’s and their respective contractors’ acts or omissions, (iii) Broker’s performance or failure to perform its services hereunder, (iv) cargo loss or damage, and/or (v) Broker’s breach of this Agreement..
C. Agent shall defend, indemnify and hold harmless FGS and the applicable Customer from any claims, actions, losses, fines, fees, penalties and/or damages (collectively, “Claims”) arising out of or related to (i) loss, damage, property or injury including death, (ii) violation of any law, statute, ordinance or regulation, (ii) Agent’s, it’s contracted carrier’s and their respective contractors’ acts or omissions, (iii) Agent’s performance or failure to perform its services hereunder, (iv) cargo loss or damage, and/or (v) Agent’s breach of this Agreement..
5. FGS RESPONSIBILITIES
A. FGS as Agent. The Customer acknowledges and agrees that FGS may act as the non-exclusive agent of the Customer for the limited purpose of performing duties in connection with the entry and release of goods, post entry services, the securing of export licenses, the filing of export documentation on behalf of the Customer and other dealings with government agencies.
B. Shipments, Billing & Rates. Shipments, Delivery Orders, and Bills of Ladings are tendered by FGS to a Carrier or Broker and/or Agent pursuant to the parties’ agreement to this T&C.
C. Drayage/intermodal. Unless otherwise specified, FGS sets base rates including fuel surcharges before tendering freight. Unless otherwise specified, chassis lease fees are the responsibility of FGS and chassis lease providers. If either a Carrier or Agent and FGS agree to use a carrier or Agent’s chassis, a set number of days and rate will be agreed by both parties in writing with an interchange agreement to be provided for backup of chassis usage.
D. FGS Billing. FGS shall conduct all billing services for TSP services rendered to Customers or other parties responsible for payment. Each TSP shall invoice FGS for its applicable charges, as mutually agreed in writing, by e-mail or by electronic means, or as contained in FGS’s Load Confirmation Sheet(s)/dispatch sheets. Additional rates for truckload or LTL shipments, or modifications or amendments of the above rates, or additional rates, may be established to meet changing market conditions, shipper requirements, FGS requirements, and/or specific shipping schedules as mutually agreed upon, and shall be confirmed in writing (or by fax or email) by FGS and the TSP. Any such additional, modified, or amended rates, changes in rates shall automatically be incorporated herein by this reference.
E. Rates and Payment. Any rates which are verbally agreed upon shall be deemed invalid unless confirmed in writing by FGS. All written confirmations of rates, including confirmations by billing and payment, shall be incorporated herein by this reference. Rates or charges, including but not limited to stop-offs, detention, loading or unloading, fuel surcharges, or other accessorial charges, tariff rates, released rates or values, or tariff rules or circulars, shall only be valid when their terms are specifically agreed to in a writing signed by FGS and the applicable TSP. Each TSP acknowledges and agrees that FGS is the sole party responsible for payment of a TSP’s charges with the exception of the following. If FGS does not collect payment from its Customers, then FGS is not required to, and is exonerated from, FGS’s obligation to pay the TSP. FGS agrees to pay any TSP invoice within 90 days of FGS’s receipt of the timely dated, error-free invoice sent with all required supporting documentation including, without limitation, the bill of lading and/or proof of delivery. Each TSP acknowledges that it may only seek payment from Customer should FGS not collect payment from said Customer listed on the Bill of Lading.
F. Old Invoices. Each TSP acknowledges and agrees that any TSP Invoices which do not contain sufficient backup documentation or are received by FGS more than 90 days from the applicable date of service for which payment is being sought may be deemed by FGS in FGS’s sole discretion as invalid for payment and void. Each TSP shall regularly send a comprehensive aging report to FGS.
6. TSP RESPONSIBILITIES
A. Equipment. Each TSP agrees to provide or arrange to provide the necessary equipment and qualified personnel for completion of the transportation services required by FGS and/or the Customers. Each TSP agrees not (i) to use or (ii) arrange to use equipment that has been used to transport hazardous wastes. Each TSP agrees that all shipments will be transported and delivered with reasonable dispatch, or as otherwise agreed in writing.
B. Bills of Lading. Carrier and Agent shall sign a bill of lading, produced by the Customer or a TSP, and maintain compliance with 49 C.F.R. §373.101 (and any amendments thereto) for the property it receives for transportation under this Agreement. Unless otherwise agreed in writing, a TSP hired by FGS (or on FGS’s behalf) shall become fully responsible and liable for the freight when it takes/receives possession thereof regardless of whether a bill of lading has been issued and/or signed. This responsibility/liability shall continue until delivery of the shipment to the consignee, and the consignee signs the bill of lading or delivery receipt. Any terms of a circular, tariff, publication or bill of lading (including but not limited to payment and credit terms, released rates or released value) inconsistent with the terms of this T&C shall be ineffective, non-binding and inapplicable to FGS and the Customers. Failure to issue or sign a bill of lading shall not affect the liability of a TSP.
C. Loss & Damage Claims. 49 C.F.R. §370.1 et seq., as amended, shall govern all TSPs for processing all freight loss, freight damage and freight salvage claims. A TSP’s liability for any cargo damage, loss, or theft from any cause shall be determined pursuant to the Carmack Amendment; provided, however, that a TSP’s liability for freight loss and damage claims shall include all of FGS’s legal fees in enforcing this T&C. Notwithstanding anything to the contrary, a TSP shall pay, decline or make settlement offer in writing on all freight loss or damage claims within 30 days of receipt of the claim. Failure of a TSP to pay, decline or offer settlement within this 30 day period shall be deemed admission by such TSP of full liability for the amount claimed and a material breach of this T&C. A TSP’s cargo liability for cargo damage, loss, delay or theft from any cause for any one shipment shall not exceed $500,000.00 unless such TSP is notified by FGS or the Customer of the increased value at least 10 days prior to shipment pick up.
D. Insurance. Each TSP shall furnish FGS with Certificate(s) of Insurance, or insurance policies providing thirty (30) days advance written notice of cancellation or termination, and unless otherwise agreed, subject to the following minimum limits: General liability $1,000,000.00 per occurrence; automobile liability (including hired and non-owned vehicles) $1,000,000.00 per occurrence, ($5,000,000 if transporting hazardous materials). Brokers may carry contingent automobile liability insurance; cargo liability insurance in an amount of $100,000.00 per occurrence; and workers’ compensation insurance as applicable. Nothing in this T&C shall be construed to avoid or limit a TSP’s liability due to any exclusion or deductible in any insurance policy.
E. Taxes. Each TSP assumes full responsibility and liability for payment of all applicable federal, state, and local payroll taxes, sales tax, income tax, taxes for unemployment insurance, old age pensions, workers’ compensation, social security, etc. with respect to persons engaged in the performance of its transportation services hereunder.
A. Limitations of Action. Unless subject to a specific statute or international convention, all claims against FGS for a potential or actual loss, must be made in writing and received by FGS, within sixty (60) days of the event giving rise to claim; the failure to give FGS timely notice shall be a complete defense to any suit or action commenced by Customer or a TSP. All suits against FGS must be filed and properly served on FGS as follows: (i) for claims arising out of ocean transportation, within one (1) year from the date of the loss; (ii) for claims arising out of air transportation, within two (2) years from the date of the loss; (iii) for claims arising out of the preparation and/or submission of an import entry(s), within seventy-five (75) days from the date of liquidation of the entry(s); and (iv) for any and all other claims of any other type, within one (1) year from the date of the loss or damage.
B. No Liability for the Selection or Services of a TSP and/or Routes. Unless services are performed by persons or firms engaged pursuant to express written instructions from the Customer, FGS shall use reasonable care in its selection of TSPs, or in selecting the means, route, and procedure to be followed in the handling, transportation, clearance, and delivery of the shipment. Advice by FGS that a particular TSP has been selected to render services with respect to the goods, shall not be construed to mean that FGS warrants or represents that such TSP will render such services nor does FGS assume responsibility or liability for any action(s) and/or inaction(s) of such TSP, third parties and/or its agents, and shall not be liable for any delay or loss of any kind, which occurs while a shipment is in the custody or control of a third party; all claims in connection with the act of a TSP or third party shall be brought solely against such party and/or its agents; in connection with any such claim, FGS shall reasonably cooperate with the Customer, which shall be liable for any charges or costs incurred by FGS.
C. Independent Contractor; Non-Exclusive. It is understood and agreed that the relationship between FGS and any TSP is that of independent contractor. None of the terms of this T&C or any acts taken by the parties to this T&C shall be construed for any purpose to express or imply a joint venture, partnership, principal/agent, fiduciary, or employer/employee relationship between the Parties. Each TSP acknowledges and agrees that this T&C does not create an exclusive relationship between the parties. THE EXCEPTION IS GLOBAL AND WORLDWIDE AGENTS WHO BOOK ALL services including but not exclusive of ocean, air, ground freight, customs brokerage or any services request by FGS, LLC. Global and Worldwide Agent/Contractor acknowledges and agrees that the relationship established in this Agreement is a fiduciary relationship with Agent/Contractor owing a fiduciary duty to the Company, its Principal.
D. Waiver. The failure by FGS to enforce a breach or waiver of any provision or term of this T&C shall not be deemed to constitute a waiver of any subsequent failure or breach, and shall not affect or limit the right of FGS to thereafter enforce such a term or provision.
E. Entire Agreement. This T&C and constitutes the entire agreement between the parties and supersedes all previous agreements and understandings relating to the subject matter hereof. Except as expressly provided herein, this T&C may not be altered, amended, or modified except by a written instrument signed by the duly authorized representatives of both parties.
F. Governing Law; Consent to Jurisdiction and Venue. This T&C shall be construed according to the laws of the State of Georgia, without regard to any conflict of laws provision. The parties agree that any and all disputes arising out of, relating to, or in connection with this T&C shall be adjudicated in the state or federal courts of Fulton County, Georgia and no other forum, and the parties hereby submit to the exclusive jurisdiction and venue of the state and federal courts of Fulton County, Georgia. THE PARTIES WAIVE ALL RIGHTS TO A TRIAL BY JURY FOR ANY DISPUTE. The prevailing party in any litigation shall be entitled to an award of its attorneys’ fees and costs, notwithstanding applicable law.
G. No back-solicitation. A TSP shall not directly or indirectly solicit freight shipments (or accept shipments) for a period of 60 month(s) following termination of this T&C for any reason, from any Customer, consignor or consignee of FGS. In the event of a breach of this provision, FGS shall be entitled, among other remedies available at law or in equity, to a commission of 100 percent of the gross transportation revenue (as evidenced by freight bills) received by the TSP for the transportation of freight as liquidated damages. The TSP shall be liable for all costs and expenses incurred by FGS in enforcing this provision including, but not limited to, reasonable attorneys’ fees.
H. Term. This T&C shall be in effect and binding on all TSPs and Customers for a period of 5 years from the date upon which freight is last tendered to, by or from FGS. Thereafter this Agreement auto renews for another 5 year term. Each TSP and Customer acknowledges and agrees that FGS has the right to amend these T&Cs at any time and without notice. Accordingly, each TSP and Customer should review these T&Cs monthly to determine whether changes were made.
I. Covenant Not to Solicit Customers. During the term of this T&C, a TSP will not, except on behalf of FGS, directly or indirectly, solicit, divert, or take away, or attempt to solicit, divert or take away, the Business of any of the current Customers of FGS which were served by such TSP for the purpose of selling to or servicing for any such Customer the Business which was provided or offered by FGS. Each TSP acknowledges and agrees that such TSP shall not assist, solicit, or encourage any other person or entity in carrying out, directly or indirectly, any activity that would be prohibited by the provisions of this section. For purposes of this section, “Business” is defined as providing transportation and logistics services, arranging for domestic and international transportation, import and export ocean services, or operating in any capacity as a freight broker, freight forwarder, Customs Broker, NVOCC or Ocean Transportation Intermediary. In the event that a TSP or any of its affiliates violates the foregoing provision and transports, arranged for transport, or causes freight or containers to be transported for any of FGS’s Customers or prospective customers, then FGS shall be entitled, in addition to any other form of relief available to FGS in equity or at law, to receive (i) a commission of 100% from the TSP of the total compensation (Gross Revenue) received by the TSP for providing transportation services to any of FGS Customers or prospective customers for a period of Five (5) years, and (ii) any costs or reasonable attorneys’ fees the FGS incurs while trying to enforce this section and collect any money owed hereunder