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Terms and Conditions

Terms and Conditions

Master Rules Circular – Effective December 7, 2011

1. CARRIER: The term Carrier shall mean Bravo Motor Carriers, Inc., Houston, Texas.

2. DEFINITION OF SHIPMENT: Except as otherwise specifically provided herein, a shipment is a tender of freight received from one consignor, at one time, at one place, destined to one consignee at one location, and covered by one Bill of Lading.

3. RATES: Reference to rates and charges shall mean the rates and charges set forth in this master rules circular and, to the extent applicable, Carrier’s standard rate sheet in effect at the time of the shipment, or any special rate sheet that may have been established between Carrier and the customer. Standard rate sheets will be furnished on request to all current customers in good standing. Carrier’s pricing is based on dimensions furnished by the customer. Any changes in size, weight or quantity will result in additional charges. Also, quote is provided based on availability.

4. ADVANCING CHARGES: Carrier may advance for collection from Shipper, owner or Consignee, lawful charges of connecting air, rail, water, or motor Carrier; storage and other lawful charges on property stored in public warehouse or other storage; dock, pier, wharf or stevedore fees and charges, advance charges for rigging, crane service and in bond or custom house charges; and other lawful charges that may be associated with the transportation of the freight. Such charges will be paid by the Carrier and billed to the Shipper or Consignee at actual cost plus 10% handling fee.

5. APPLICATION. Each provision of this Rules Tariff shall apply to each transportation agreement entered into by Carrier unless expressly waived in a signed, written agreement. The terms and conditions established herein shall apply to shipments exempt from economic regulation as well as shipments subject to the jurisdiction of the FMCSA. The terms and conditions set forth herein shall apply to all shipments handled by Carrier regardless of the origin or destination, including interstate or intrastate shipments. Notwithstanding any other provision in these terms and conditions, IN NO EVENT SHALL CARRIER’S LIABILITY FOR CARGO LOSS OR DAMAGE EXCEED THE MAXIMUM SET FORTH IN ANY THROUGH BILL OF LADING OR OTHERWISE AGREED TO BETWEEN THE SHIPPER (OR BENEFICIAL OWNER) AND THE PARTY WHICH RETAINS CARRIER’S SERVICES.

6. BILLS OF LADING. Subject to any applicable limitations of liability, the terms and conditions of the Standard Truckload Bill of Lading shall apply notwithstanding the use by Shipper of any other bill of lading or shipping document. Drivers are not authorized to bind Carrier to non-conforming bills of lading and execute bills of lading with alternative terms and conditions as receipts for the shipment only. See Attached Appendix 1, incorporated by reference into these terms and conditions.

7. SHIPPER LOAD AND COUNT. All shipments shall be loaded by the consignor and unloaded by the consignee. Carrier’s drivers are instructed to sign bills of lading as shipper load and count or “SLC”. Inadvertent omission of this notation shall not result in a presumption of Carrier liability for shortage or damage (in the absence of upset or accident) where the driver was either not present or not allowed to observe the loading and unloading.

8. DISTANCE COMPUTATIONS. Where rates are set forth in cents per mile or other calculation based on mileage, distances shall be determined from origin to destination via intermediate points as specified by the Shipper utilizing the following mileage guide: PC MILER. Mileage will be determined by PC Miler, Shortest, or subsequent updates and releases when installed on Carrier’s computer system. When shipments move under special permits required by and obtained from a state, municipal, or other governmental agency that specifies the route to be traveled by the motor vehicle, the mileage to be used for rate calculations shall be the mileage traveled via the route specified in the permits.

9. COMMODITY LIMITATIONS. Carrier does not hold out to transport jewelry, manufactured tobacco products, ammunition, objects d’art, currency, documents, items of unusual value or rare metals.

10. HAZARDOUS MATERIALS PROVISION. Shipper accepts all U.S. Department of Transportation requirements governing hazardous materials. Among other requirements, the Shipper must provide a legible bill of lading with proper Hazmat information, including the Shipper’s certificate containing all required information such as emergency response number and hazardous material information, and affix any required placards before or at the time that the shipment is tendered. Failure to comply with these requirements will relieve Carrier of any and all liability for loss or damage directly or indirectly caused to or by the hazardous materials. Any mis-declared hazardous materials may be warehoused at the Shipper’s risk and expense, or destroyed without compensation. Shipments of hazardous materials will be subject to an additional charge.

11. INTERMODAL SHIPMENTS. Carrier does participate in the Uniform Intermodal Interchange Agreement (UIIA). All trailer use and per diem charges incurred will be assessed to Shipper and include an additional 10% administration fee. Carrier is not responsible for trailer use, per diem, claims, theft or loss value for equipment dropped at Shipper’s facilities.

12. SUBSTITUTED SERVICE. For its operating convenience, Carrier reserves a right to hire other carriers qualified subcontractors to provide all or part of given movements. Carrier agrees to protect the rates set forth herein when substituted services are provided and warrants that all terms, conditions, duties and obligations owed to Shipper by these terms and conditions, bill of lading, and/or contract will be provided.

13. APPLICATION OF ACCESSORIAL CHARGES: In addition to the line haul or base rate for any shipment and unless otherwise agreed in writing, accessorial charges, including but not limited to detention charges, stop-off charges, permit fees, additional license or permit fees, lumper fees, and so forth, shall apply and shall be reflected on the Carrier’s invoice for services rendered, as may be applicable. Carrier reserves the right to bill and collect accessorial charges from the consignor or consignee which incurred those charges.

14. OVERWEIGHT LIABILITY: Carrier will not knowingly violate weight restrictions under federal, state or municipal laws. Advance written notification of overweight shipments is required. Carrier will take whatever actions are necessary to bring equipment into compliance. Any fines or expenses resulting from overweight shipments, in addition to any permit fees, will be included in the invoice and charges to be paid to Carrier.

15. CHASSIS SPLITS: When container chassis is not located at the same location as the container to be transported, chassis split charges may be assessed.

16. DIRECT DISCHARGE: Loads transferred directly to/from ships, barges, or other marine vessels (“direct discharge”) shall be subject to additional charges.

17. LOADING/UNLOADING: Rates in this rules circular contemplate loading of the freight by the shipper and the unloading of freight by the consignee, except that if the shipper or consignee requests and carrier furnishes outside labor to load or unload the vehicle, all charges for such outside labor are to be paid by the shipper or consignee, who will be billed for actual time of outside labor. If the driver is required to assist with loading and/or unloading, a charge of $50 per hour will be assessed in addition to all other applicable charges. All charges for additional labor shall be agreed to in writing at the time services are provided. When carrier is required or requested to load or unload freight on Saturdays, Sundays or national holidays, a charge of $150 will be assessed in addition to other applicable charges. Holidays will include New Year’s Day, Memorial Day, July 4, Labor Day, Thanksgiving Day, the day after Thanksgiving, Christmas Eve and Christmas Day.

18. DUNNAGE, STRIPPING AND PACKING: Rates do not include the cost of any materials for temporary blocking, bracing, stripping, saddles, dunnage, or supports, including pipe racks and stakes, required to protect the freight and make it secure for transportation. At the request of the Shipper, Carrier will furnish such materials at the rates specified in Carrier’s rate sheets.

19. TARPAULINS OR COVERS: Rates do not include tarps or other covers. When Carrier is required by law, or when requested by Shipper or Consignee, to cover a load with tarps or other types of covering, additional charges will be assessed.

20. SPECIAL PERMITS: When permits are required for the transportation of over-size and/or over-weight loads, the Consignor or owner of the freight shall procure and furnish such permits, or request Carrier to secure them. Charges for permits secured by Carrier include the permit fee, processing fees and a 10% handling fee. Shipments moving under U.S. Customs Bond will be subject to a charge of $100.00 for handling each shipment.

21. STOP-OFFS: Shipments received from one consignor at one point at one time and covered by one bill of lading, may be stopped in transit for partial loading and/or unloading only at points within the scope of carrier’s operations or as otherwise agreed by carrier. The bill of lading shall designate the following: (1) Stop-off point or points and places. (2) The weight, quantities, markings, and description of articles to be loaded or unloaded. (3) The name and address of the party authorized to tender freight or to accept freight for unloading at point of stop-off. The rate that shipper shall pay for carrier’s stop-off service shall be $85 for each stop in transit. Transportation charges, other than the charges for the stop-off service shall be assessed at the rate applicable from point of origin to final destination.

22. RECONSIGNMENT OR DIVERSION: A request for the reconsignment or diversion of a shipment will be subject to the following definitions, conditions and charges: (A) A request for reconsignment or diversion must be confirmed in writing, which shall include facsimile transmissions. (B) A reconsignment prior to movement of a shipment shall bear the rate that would otherwise have applied if the shipment was originally scheduled for movement to the final destination. (C) A diversion en route shall bear a charge of $250 plus 125% of the original quoted rate to the reconsignment (minimum charge $250) for each shipment reconsigned or diverted. Charges from origin to point of reconsignment or diversion shall be determined on the basis of the distance from origin to final destination via the re-consignment or diversion point. (D) If the shipment is returned to the origin point, the rate to be applied will be the applicable rate to the most distant point actually traveled in addition to the mileage rate from same back to point of origin.

23. ATTEMPTED PICKUP: When the carrier, upon receipt of a request to pick up a shipment or to furnish a vehicle for the exclusive use of a consignor, has dispatched a vehicle for such purpose and due to no disability or negligence on the part of the carrier, vehicle is not used, the greater of a charge of $1.50 per mile will be assessed against the Shipper/Consignee making such request or $250. This charge will apply from the original point of dispatch to the canceled pickup point and on to a new loading point of the home terminal of the Carrier, whichever is closer.

24. ATTEMPTED DELIVERY: If, through no fault of Carrier, a shipment is rejected wholly or in part by Consignee, Shipper shall be responsible for all freight charges as though the shipment had been accepted by Consignee. In addition, the rejected shipment will be returned to the point of origin or other location designated by Shipper. The return of the rejected shipment shall be treated as a new shipment, and Shipper shall be responsible for all freight charges. If Shipper subsequently requests Carrier to re-deliver the shipment, the re-delivery shall also be treated as a new shipment and rated accordingly.

25. WEIGHING: Carrier reserves the right to weigh any shipment for the purpose of verifying weight for revenue billing and for conformance with federal, state, or municipal law regarding maximum weight. When a vehicle is weighed, either empty or loaded, at the request of the Consignor or Consignee, a weigh charge will be assessed for each time the vehicle is weighed.

26. DEADHEAD MILEAGE: If point of origin and point of delivery are both outside of the Houston Commercial Zone, dead head mileage may be charged. Deadhead mileage shall be the mileage between Carrier’s Houston terminal and either the point of origin or the point of delivery, whichever is greater.

27. FREE TIME / DETENTION TIME: Carrier will allow 1 hour of free time both for loading and unloading for vehicles with power units and drivers. For purposes of detention of trailers spotted without power, Carrier will allow 1 hour of free time both for loading and unloading of spotted trailers. Such time shall commence from the time the trailer is spotted or from the time the trailer was requested to be spotted, whichever is later, but Saturdays, Sundays or holidays shall not be included in the calculation of free time. Where carrier spots trailer equipment for shipper’s loading convenience, no free time shall be allotted for detention of power equipment and detention shall begin at the agreed time of arrival or at the time of actual arrival, whichever is later. Where stop-off, pickup or deliveries are requested in route, with the exception of the original origin and the ultimate destination, the free time allowed for each stop shall be 1 hour. In the absence of an agreement with respect to an appointed time of pickup or delivery, consignor shall load and consignee shall unload carrier’s equipment within the allotted free time provided herein upon arrival if, during ordinary business days, as set forth herein. If carrier arrives before or after business hours as defined herein, free time begins at the commencement of the next business day.

28. DETENTION-VEHICLES WITH POWER UNITS. When delay occurs beyond free time, the charge for detention shall be $50 for each 30 minutes or fraction thereof (minimum charge $75) with a maximum charge for each 24 hour period of $750. When computing time, the beginning time shall be the time the driver notifies the shipper or consignee of driver’s arrival and that the trailer is available for loading or unloading, as the case may be, but in no case shall time commence prior to the time of any appointment or the actual time of loading or unloading, whichever is first.

29. DETENTION-VEHICLES WITHOUT POWER UNITS. Time shall commence with the spotting of the trailer and shall end when carrier is notified by the shipper or consignee that the trailer is available for removal from the premises of the shipper or consignee. If a trailer is both unloaded and reloaded, an additional two (2) hours free time shall be allowed. After expiration of free time as provided herein, charges for delaying the trailer beyond free time shall be $75 per 24 hour period or fraction thereof, plus a repositioning cost of $1.65 per mile, until mileage computed from the point of dispatch to the location of the federal, state or local facility where the original equipment is detained subject to a $250 minimum.

30. DETENTION-ESCORT VEHICLES. On oversize loads where an escort vehicle(s) has been engaged and there is a delay in commencement or completion of a shipment, through causes attributable to the consignee or consignor, or at the request of either, the consignee or consignor, an additional charge will be assessed at the rate of $350.00 per day for each escort vehicle used.

31. IN-PLANT WORK: Carrier will provide drivers and equipment for in-plant work on an hourly rate basis, subject to a 4-hour minimum charge.

32. DRIVER/TRACTOR AND DRIVER ONLY: Carrier will furnish drivers and power units to haul customer-owned trailers, or drivers only to drive customer-owned equipment. Over-size and over-weight shipments shall be subject to the same surcharges that would be applicable if the loads were transported on Carrier’s equipment.

33. APPOINTMENTS/PICKUP AND DELIVERY TIMES Pick-ups and deliveries shall be made between 7:00 a.m. and 5:00 p.m., local time Monday through Friday. When shipper requests carrier to pick up or deliver freight on Saturday, Sunday or Holidays, such service shall be subject to an additional charge: $200 – Saturday, $300 – Sunday/Holiday. Carrier is not obligated to furnish pickup or delivery service on Saturday, Sunday or Holidays.. Appointments shall be made at no charge. Carrier shall not be liable for late deliveries or unkept appointments unless such late delivery or unkept appointment is beyond carrier’s duty of reasonable dispatch. Consignee shall facilitate prompt unloading in the event of missed appointments.

34. TRAILER RENTAL – MEXICAN SHIPMENTS. The charge for trailer rental on shipments destined for Mexico will be $750 per day from the time of interchange at the U.S./Mexican border until returned. The calculation of time starts when shipments are tendered to the forwarding agent.

35. PROOF OF DELIVERY CHARGE. A charge of $25 will apply for providing proof of delivery on shipments to which no exceptions were noted.

36. SPECIAL SERVICES – EMPTY MILES AT SHIPPER’S CONVENIENCE. When carrier agrees to relocate revenue equipment at the request of consignor or consignee for shipper’s or consignee’s convenience, a charge of $1.65 per mile plus fuel surcharge will be billable to the consignor or consignee making the request. Empty miles will be calculated from empty equipment origin to point of equipment utilization based upon the applicable mileage guide. Carrier will notify shipper of the location of subject equipment prior to movement.

37. EQUIPMENT DAMAGE CHARGES. Where a carrier’s trailer equipment is spotted for the consignor’s convenience at point of origin or for the consignee’s convenience at point of destination, the consignor and consignee shall be responsible for the care and custody of said equipment while in their respective possession and shall return same, ordinary wear and tear excepted. Failure of the consignor, consignee, or their respective agents and spotting service to note trailer damage at time of tender shall be prima facie evidence that same was spotted in good condition. Consignor and/or consignee shall be liable for the repair cost to any trailer damaged while spotted at their facility. Such damage shall be noted by carrier personnel at time of pickup and invoices for repairs shall be accompanied by supporting documents.

38. AFTER HOURS PICKUPS AND DELIVERIES BY SPECIAL REQUEST. Carrier will make pickups and deliveries on weekends, holidays, and after hours by special request for a charge of $150. In addition, detention as otherwise provided herein shall apply between the time of arrival and loading or unloading and/or the time of subsequent dispatch.

39. LAYOVER SERVICE. If a carrier’s equipment, carrier’s driver, or any escort vehicle is required to remain overnight at the destination point through causes attributable to the consignee or consignor, or at the request of either, the consignee or consignor, an additional charge for each overnight will be assessed at the rate of: $200.00 for each Tractor-Trailer.

40. STEAMSHIP LINE OR THIRD PARTY EQUIPMENT. Use of steamship line or third party equipment (chassis, containers, flat racks, ISO tanks, etc.) shall be subject to the steamship line or third party’s equipment interchange agreement, including allowances for free time, per diem charges, and Maintenance and Repair (M&R) charges. Shipper shall be responsible for all per diem charges and M&R charges that are incurred through no fault of Carrier. Carrier will bill customer for all such charges plus an additional administrative charge of 10%, and customer shall pay all valid charges without delay or protest.

41. LIMITATION OF CARRIER LIABILITY. Carrier will not be liable to the owner of property for loss or delay caused by (1) an act of default of the Shipper, owner or consignee; (2) an Act of God, the public enemy, authority of law, quarantine, embargo, riot, strike, perils of navigation, or hazard and danger incident to a state of war; and (3) freezing or spoiling of any perishable goods or property or for natural shrinkage. Carrier shall not be liable for any special, incidental, indirect or consequential damages (including without limitation lost profits or business opportunity) or punitive or exemplary damages incurred or suffered by the Shipper as a result of overage, shortage or damage to shipments transported. Carrier is not bound to transport a shipment by a particular schedule or in time for a particular market, but is responsible to transport a shipment with reasonable dispatch, as that term is defined at common law. Carrier shall not be responsible for special or consequential damages resulting from delayed delivery.

42. PACKING OR PACKAGING – SHORTAGE. Carrier will not be responsible for shortage on shipments which are banded, strapped, netted, shrink-wrapped or otherwise secured to bins, pallets, platforms or skids when such securing material is found to be intact at the time of unloading by consignee. Carrier will only be responsible for the number of bins, pallets, platforms or skids on such shipments.

43. SPECIAL AND CONSEQUENTIAL DAMAGES. Carrier shall not be liable for special, incidental, indirect or consequential damages (including without limitation, lost profits or business opportunity, or punitive and exemplary damages incurred or suffered by the Shipper as a result of shortage, damage or delay.

44. RELEASED VALUE/ SIMPLIFIED PRICING. Unless otherwise agreed in writing, all shipments are released to a maximum value of $100,000 per shipment or the actual value of the cargo, whichever is less. Carrier’s liability for cargo loss or damage will not exceed $100,000 unless Shipper requests an increase in legal liability by a.) submitting a written request for a higher Released Value, b.) paying an additional charge equal to $1.50 per $1,000.00 of the difference between the desired Released Value and $100,000, not to exceed a Released Value of $200,000, and c.) obtaining a specially assigned identification number. Shipper may obtain rates for shipments with a higher release value than those indicated above from Carrier by calling (281) 768-8843. Any alternative rate shall be reflected by the insertion of the higher release value and specially assigned identification number on the bill of lading at the time of pick-up.

45. INADVERTENCE CLAUSE. If a Shipper declares a value exceeding $100,000 per truckload or the actual value of the cargo, whichever is less, without insertion of the corresponding specially assigned identification number, the shipment will not be accepted, but if the shipment is inadvertently accepted, it will be considered as being released to a value of $100,000 per truckload or the actual value of the cargo, whichever is less, and the shipment will move subject to such limitation of liability.

46. MEXICAN SHIPMENTS. Carrier does not accept liability for loss or damage to shipments under transport in the Republic of Mexico. Shippers are advised that liability for cargo loss in the Republic of Mexico differs from U.S. law (49 U.S.C. 14706) and the special arrangements with the Mexican carrier participating in any transborder movement is not the Carrier’s responsibility. Carrier assumes no cargo loss responsibility for shortage or damage to shipments while in the Republic of Mexico. Clear bills of lading showing safe and damage-free delivery between the U.S./Mexican borders at the pickup or delivery points in the U.S. shall be evidence of Carrier’s proper discharge of its cargo responsibility. In the event it is determined, notwithstanding the foregoing, that Carrier is liable pursuant to statute, through bill, or otherwise for loss, damage or delay occurring in the Republic of Mexico, Carrier’s maximum liability shall be the rate affixed under the laws of the Republic of Mexico for domestic shipments within that country.

47. CARGO CLAIMS APPLICATION. The provisions of these terms and conditions are filed in compliance with Federal Claim, Loss and Damage Regulations (49 C.F.R. 370 and the STBOL) which shall govern the investigation and disposition of claims for loss, damage, or delay to property transported or accepted for transportation in interstate or foreign commerce.

48. FILING OF CLAIMS. (A) Claims in writing are required within nine (9) months from the date of delivery or a reasonable time during which delivery should have been accomplished. A claim for loss, damage, injury or delay to cargo shall not be voluntarily paid by Carrier unless filed in writing, as provided in subparagraph (B) of this numbered paragraph with Carrier within the specified time limits applicable thereto and as otherwise may be required by law, the terms of the bills of lading or other contract of carriage, and all terms and conditions applicable thereto. Claims for concealed damages will be submitted to Carrier within forty-eight (48) hours of delivery. Any suit to recover loss of damage or delay to cargo must be instituted no later than two years and one day after the claim is denied. (B) Minimum filing requirements. A communication in writing from a claimant, filed with Carrier within the time limits specified in the bill of lading or contract of carriage or applicable contract between Carrier and Shipper and (1) containing facts sufficient to identify the shipment (or shipments) of property involved; (2) asserting liability for alleged loss, damage, injury or delay; and (3) making claims for the payment of a specified or determinable amount of money, shall be considered as sufficient compliance with the provisions for filing claims embraced in the bill of lading or contract of carriage or applicable contract between Carrier and Shipper. (C) Documents not constituting claims such as bad order reports, appraisal reports of damage, notations of shortages or damage, or both, on freight bills, delivery receipts, or other documents, or inspection reports issued by Shipper or its inspection agency, whether the extent of loss or damage is indicated in dollars and cents or otherwise shall, standing alone, not be considered by Carrier as sufficient to comply with the minimum claim filing requirements specified in subparagraph (b) above. (D) Claims filed for uncertain amounts. Whenever a claim is presented against Carrier for an uncertain amount such as “$100 more or less,” Carrier shall determine the condition of the baggage or shipment involved at the time of delivery by it, if it was delivered, and shall ascertain as nearly as possible the extent, if any, of the loss or damage for which it may be responsible. It shall not, however, voluntarily pay a claim under such circumstances unless and until a formal claim in writing for a specified or determinable amount of money shall have been filed in accordance with the provisions of subparagraph (b) above.

49. CLAIMS LOSS AND DAMAGE – SALVAGE Whenever property transported by Carrier is damaged or alleged to be damaged and is, as a consequence thereof, not delivered or is rejected or refused upon tender thereof to the owner, consignee, or person entitled to receive such property, Carrier, shall have the right to sell or dispose of such property directly or by the employment of a competent salvage agent.

50. DISPOSITION OF OVERAGE. Consignee shall accept overages in fulfillment of its duty to mitigate damages. Overages will be returned to the consignee or Shipper by Carrier upon request in return for payment of Carrier’s applicable freight charges. In the event consignor and consignee decline to accept overages and mitigate damages, Carrier shall treat any overage as salvage and after notice shall sell same in accordance with the bill of lading contract and the terms herein. Carrier shall not be liable for any difference between the sales price of overage and the destination market value where the Shipper and consignee decline to mitigate damages.

51. DISPOSITION OF CONTESTED CARGO CLAIMS. Unless the parties agree to voluntary alternative dispute resolution, disputed claims will be subject to 49 U.S.C. §14706 (the Carmack Amendment) subject to any applicable released evaluation. Claimant waives any right to set-off or offset of contested and un-liquidated cargo claims against freight charges otherwise due to Carrier as a precondition of service. Claimants agree to forfeiture of any contested claim asserted by it as a set-off after notice and demand for freight charges.

52. INVOICES. Carrier shall submit an invoice to the specified party in accordance with the requirements of Federal regulations governing regulated transportation. Carrier will retain delivery receipts and proofs of delivery which will be provided upon specific request in accordance with the provisions of these terms and conditions.

53. COLLECTION AND PAYMENT OF CHARGES. Payment will be due upon receipt of invoice. In consideration for transportation services performed by Carrier for the mutual benefit of the Shipper and consignee under the terms and conditions set out herein, both Shipper and consignee shall assume joint and several liability for all freight charges accrued with regard to such transportation. In the event that freight bills are not paid by either the Shipper or the consignee, payment for such charges may be sought from either party or both parties.

54. PAYMENT WITHOUT OFFSET. Consignor and/or Consignee shall pay all freight charges when due without offset for any cause, including but not limited to, cargo claims. All claims for loss or damage shall be governed by these terms and conditions and following and neither consignor nor consignee shall deprive Carrier of proper cargo insurance adjustment by unilateral deduction of claims from payment of freight charges due. In the event that Shipper or its agents “short pay” freight charges or deduct charges from freight bills without Carrier’s authorization to do so in writing, prior to the deduction, Shipper and its agents waive their right to any contested cargo claim that is set-off against freight charges.

55. INTEREST AND FEES ON PAST DUE ACCOUNTS. Carrier will assess one and one-half percent (1½ %) interest per month beginning on the 31st day after payment was due. Shipper does not agree or intend to pay, and Carrier agrees and does not intend to contract for, charge or collect, any amount in the nature of interest or fee due under this contract, which would in any way or event, including but not limited to, demand, prepayment, or acceleration, or in any other manner, cause Carrier to charge or collect more interest than the maximum lawful rate allowed by the applicable state and/or federal law, as it is the intent of all Carrier and all parties operating under any agreement to which these terms and conditions apply not to charge or contract for a usurious rate of interest, or otherwise violate the laws related to the maximum rate of interest which may be charged. In the event Carrier deems it necessary to retain the services of legal counsel to collect any outstanding indebtedness, Shipper shall pay attorneys’ fees, collection service fees and court filing fees in the amount of $500.00 or thirty-five percent (35%), whichever is greater.

56. THIRD PARTY BILLING. Carrier does not employ property brokers or other intermediaries as its agents for the collection of freight charges. Carrier will invoice the Shipper’s broker, bank or other agent for freight charges. Carrier reserves the right to bill and collect freight charges from the Shipper on prepaid shipments or the consignee on collect shipments in the event full payment of freight charges is not received pursuant to third party billing. A shipment in which charges are to be paid by a party other than the consignor or consignee will be accepted provided recourse to the consignor is preserved with the carrier picking the shipment up at origin. The consignor and consignee guarantee to pay the charges if the third party fails to do so in the time allotted under the applicable credit regulations. Any such shipment will not be accepted if the consignor executes a nonrecourse provision of the bill of lading.

57. PRIORITY OF FREIGHT CHARGE OBLIGATION. When arrangements are made with intermediaries for transportation services provided by Carrier and the intermediary in turn bills the Shipper or beneficial owner of the goods for freight charges inclusive of Carrier’s rates, the following terms and conditions shall apply:

  1. The intermediary will segregate money due owing to Carrier from other accounts.
  2. Intermediary will pay Carrier without offset from funds received and shall not commingle, pledge, encumber or hypothecate funds received by it intended for payment of freight charges to Carrier.
  3. When the arranger of transportation is a carrier or freight forwarder, a constructive interline trust shall apply.
  4. When the arranger of transportation is a property broker, the regulations set forth at 49 C.F.R. §371 shall apply and monies received by the broker shall be segregated from its other assets and liabilities.
  5. In no event shall accounts receivable pledge or encumber by any intermediary be inclusive of freight charges billed by it to the extent those freight charges are due and owing to Carrier. Carrier preserves recourse for payment of all freight charges to the consignor, unless Section 7 of the STBOL is signed, and to the consignee unless prior notice is given that the consignee is not to be responsible for freight charges in accordance with to Section 7 of the STBOL.

58. LIEN FOR FREIGHT CHARGES. Carrier shall have a possessory lien on shipments in its dominion and control for the payment of freight charges past and present.

59. ELECTRONIC RECORDS. Carrier generates documents using electronic methods, uses electronic mail and scanning in connection with Carrier’s operations. In accordance with Federal law, State law and federal motor carrier safety regulations, it is expressly agreed that documents generated using electronic methods, electronic mail or scanned will be considered the legal equivalent of traditional paper documents.

60. VENUE AND JURISDICTION. This agreement shall be construed to have been entered in Harris County, Texas and performable in Harris County, Texas. Carrier is based out of Texas, from where it communicates, performs services and invoices are sent. All payments are to be made in Texas and all parties consent to the jurisdiction of Texas and to venue in Harris County, Texas. It is expressly acknowledged and agreed that any suit arising from the payment or collection of freight charges shall be filed in the appropriate state or federal court in Harris County, Texas.

61. FUEL SURCHARGE. All loads shall be subject to a fuel surcharge (FSC) based on the price of diesel fuel, in accordance with the schedule attached as Appendix 2. The FSC shall be assessed as a rate per loaded mile and will be determined by the U. S. National Average Fuel Index for diesel fuel as published by the U. S. Department of Energy.