Flexport Freight LLC (“Broker”) and the undersigned motor carrier (“Carrier” or “you”) enter into this agreement (“Agreement”) to memorialize the terms under which Broker will make shipments of cargo available to Carrier for transportation by commercial motor vehicle.
The person executing this Agreement on behalf of Carrier represents and warrants that they are authorized by Carrier to execute this Agreement and that they are at least 18 years old.
Read this Agreement carefully before accepting its terms; the Agreement is a binding legal contract that will govern the rights and obligations of Broker and Carrier.
Broker’s Privacy Policy, which specifies how Broker collects, uses and discloses information about you, is incorporated herein by reference. Any other policies, websites or documents referenced in this Agreement are likewise incorporated into the terms of this Agreement and are part of the agreement. Read all linked documents and websites before signing this Agreement.
IT IS AGREED AND UNDERSTOOD THAT BROKER IS NOT A MOTOR CARRIER. NO INTERPRETATION OF WRITTEN OR ORAL REMARKS IN ANY AGREEMENT OR DOCUMENT SHALL BE CONSTRUED TO IMPLY BROKER IS A MOTOR CARRIER, OR THAT BROKER IS SUBJECT TO THE REGULATORY OR LEGAL REQUIREMENTS OR LIABILITIES OF A MOTOR CARRIER. BROKER HAS NO RESPONSIBILITY OR LIABILITY FOR ANY TRANSPORTATION OR MOTOR CARRIER SERVICES PROVIDED TO ANY SHIPPER OR ANY OTHER PARTY USING THE SERVICES. NO INTERLINING ARRANGEMENT IS CREATED BY THIS AGREEMENT.
Carrier means the legal entity holding motor carrier authority from the Federal Motor Carrier Administration that you identified during the registration process on the “Convoy Platform” operated by Flexport Freight Tech LLC.
Broker is a federally licensed freight broker as defined by 49 USC §13102(2) under authority granted by the Federal Motor Carrier Safety Administration (“FMCSA”) of the U.S. Department of Transportation. Broker’s sole obligation is to arrange transportation of cargo by a Carrier that is appropriate and authorized to operate by all applicable governmental agencies. As a broker, Broker does not take possession, custody or control of any cargo.
Broker offers a platform to connect Shippers and Carriers, but does not provide actual transportation services or act in any way as a Carrier. It is your obligation to provide transportation services, which may be scheduled through the use of the Service. Broker has no responsibility for any shipping services you provide to Shippers.
The website, mobile app and other technology operated by Flexport Freight Tech LLC which Broker uses to solicit transportation services, manage Shipments and facilitate payment of freight and other charges to Carrier.
A Shipper is defined by 49 USC §13102(13). Shippers are customers of Broker and are expressly acknowledged by Carrier to be intended third-party beneficiaries of various provisions of this Agreement purporting to grant rights to such Shippers.
A consignment of cargo for which a Shipper requests that Broker arrange transportation by motor carrier from origin to destination.
2. CARRIER IS AN INDEPENDENT CONTRACTOR
You are at all times acting as an independent contractor. This Agreement does not make you an employee, agent, legal representative, joint venture, or partner of Broker for any purpose. Similarly, Broker is not your agent, legal representative, joint venturer or partner for any purpose. You are in no way authorized to make any contract, warranty, promise or representation on behalf of Broker, or to create any obligation, express or implied, on behalf of Broker. It is expressly agreed and understood that you shall not have any employment status with Broker, or be entitled to any plans, distributions, or benefits extended by Broker to its employees. You have sole responsibility for screening, selecting, hiring, training, supervising, managing, assigning, and dispatching any drivers and for the inspection, management, operation and maintenance of motor vehicle equipment and accessories you use in performing any transportation services. You are solely responsible for the acts and omissions of any employees, agents, contractors and subcontractors that you use to perform the transportation of Shipments. You maintain sole control over the methods and results by which you perform cargo transportation services, and you retain the sole duty to provide, maintain, manage and control the equipment, personnel, and expertise required to transport Shippers’ cargo.
Broker arranges for the transportation of Shipments via the Platform Upon a Shipper’s request, Broker will post a Shipment on the Platform and motor carriers may accept the Shipment.
Once Broker accepts a Shipper’s request that Broker arrange for the transportation of a Shipment, Broker posts the Shipment’s details, as provided by the Shipper, on the Platform. The Shipper may cancel a Shipment at any time prior to a Carrier accepting it. You may view a list of Shipments available to you at any time and accept a Shipment through the Platform. Once you accept a Shipment, you will be assigned to perform transportation services related to the Shipment.
Broker will notify the Shipper that the Shipment has been accepted. It also will notify you that the Shipment has been assigned to you; PROVIDED, however, that Broker does not guarantee that your attempt to accept any Shipment will be successful. Broker assigns Shipments to the first Carrier which accepts the posting. If the original Carrier assignment fails for whatever reason, the Shipment will be re-posted to the Platform.
Within a reasonable time after accepting tender of cargo for transport, you shall upload to the Platform your bill of lading for the shipment. You shall not name Broker as either a shipper or consignee on any bill of lading. Broker is not a party to or responsible for any Shipment terms entered into between you and a Shipper.
Unless otherwise agreed, freight charges stated in the Platform and agreed to by your acceptance of Shipments hereunder include the transportation of the cargo from origin to destination; the cost of any fuel, tolls, ferry charges or other expenses related to the operation or maintenance of your equipment; and any other specialized services or equipment contemplated in the load tender (including, but not limited to amounts for refrigerated trailers, lift-gate service, loading or unloading, etc.). If any additional services not contemplated at the time a Shipment is posted are provided by Carrier. Carrier will use its best efforts to provide Broker advance notice of any and all unspecified ancillary services or costs incurred so that Broker may attempt to obtain Shipper approval of such charges. Absent express prior agreement, Broker does not guarantee that invoices for accessorial and/or ancillary services will be paid.
Once a Shipment is completed, you shall, within 24 hours of delivery, upload to the Platform a proof of delivery signed by the authorized recipient.
Broker may, as a convenience and value added service, provide you through the Platform with access to GPS services, Google Maps or similar service to suggest routing. However, any such routing information is for your convenience only. It is not instructional or mandatory.
Neither Party makes any volume commitments to the other Party. Broker has no obligation to ensure that Carrier transports any Shipment under the terms of this Agreement and Carrier has no obligation to transport any Shipments under this Agreement.
You agree that Broker may obtain a copy of your FMCSA Operating Authority; (ii) a completed W-9 form; and (iii) proof of insurance as described in Section 4.2 below from the Platform. You further agree that Broker may in its sole discretion conduct any other investigation of Carrier’s public records, credit reports, any other information available to the public, and from Flexport Freight Tech LLC.
You shall procure and maintain, at your sole cost and expense, with reputable and financially responsible insurance underwriters maintaining a rating of B+ or higher, acceptable to Broker, the following insurance coverages:
You shall provide to Broker certificates of insurance and, on request, copies of all policies and endorsements. Broker’s designated insurance monitoring service will be listed as a certificate holder. You will ensure Broker is provided notice of cancellation or modification of any insurance required under this agreement at least 30 days in advance of any cancellation or modification of the required insurance. Carrier will not perform any services under this Agreement at any time that Carrier is not in compliance with these obligations related to insurance.
In no event shall a Carrier’s insurance coverage limits constitute a limitation of Carrier’s liability for any loss, claim, damage, liability or obligation.
You shall not re-broker, co-broker, subcontract, assign, or cause or permit any other person or entity to perform any of your obligations hereunder, or cause or permit any Shipment tendered hereunder to be transported by any other third-party carrier, or any other substitute mode of transportation, without the express written consent of Broker and the Shipper. If Carrier breaches this provision, without limiting any other right of Broker or the Shipper, Carrier shall remain fully liable pursuant to this Agreement as if it had transported the Shipment on vehicles operating under its for hire motor carrier authority (including liability for cargo loss and damage claims and including the duty to defend, indemnify and hold harmless against the acts and omissions of Carrier and its contractors). Carrier acknowledges and agrees if any third party makes a claim against Broker or the Shipper with respect to Shipments tendered to Carrier for transportation hereunder, Broker may pay such third party directly and shall have no duty to pay Carrier with respect to any such Shipment. Broker shall have the right to offset the amount of payment to such third party against any funds due and owing to Broker due to Carriers breach of this provision. Further, Broker shall have the right to claim and collect any damages, including consequential, incidental, incidental and indirect damages from Carrier arising out of a breach of this provision.
You warrant that your current safety rating issued by FMCSA is not “Unsatisfactory” or “Conditional,” and that you are not subject to an out of service order or otherwise prohibited from providing transportation service in accordance with all applicable laws, rules and regulations. In the event you are issued a safety rating of less than “Satisfactory” at any time during the term of this Agreement, you shall notify Broker immediately in the manner prescribed in the Notices provision contained hereinbelow. Broker shall have the right to terminate this Agreement immediately should Carrier fail to comply with these obligations.
Carrier acknowledges that it is authorized to provide transportation of any Shipments requested or obtained through the Platform as a for-hire motor carrier in accordance with any and all applicable laws, rules and regulations. You represent and warrant that you are licensed by FMCSA as a for-hire motor carrier of property in interstate commerce pursuant to 49 USC §13902. With respect to the transportation services provided under this Agreement, including any drivers you use, you shall comply with all applicable federal, state and local laws, rules, regulations and ordinances. In addition to, and in no way limiting any other indemnity obligations in this Agreement, you shall defend, indemnify and hold Broker and Shippers harmless from and against any and all fines, penalties, judgments, liabilities, expenses and costs of any nature resulting from your failure to comply with all such laws, rules, regulations and ordinances.
The foregoing obligations include, but are not limited to, compliance with all applicable laws, rules and regulations applicable to:
You warrant that you shall perform all transportation services pursuant to this Agreement with equipment that is regularly maintained and is in good order, condition and repair and that meets with all applicable federal and state laws, rules and regulations. You will not supply equipment that has been used to transport hazardous wastes of any kind, including, solid, liquid, or hazardous, regardless of whether they meet the definition in 40 C.F.R. §261.1 et. seq. You will furnish equipment for transporting cargo which is clean, dry, leak proof, free from harmful or offensive odor, sanitary, and free of any contamination, suitable for the particular commodity being transported and which will not cause in whole or in part adulteration of the commodity as defined in 21 U.S.C § 342.
Unless a trailer is pre-loaded and sealed prior to Carrier’s arrival at destination, and the applicable bill of lading bears a “shipper load and count”, “SLC” or similar designation, Carrier is solely responsible for ensuring that all equipment has been properly loaded, secured, blocked and braced. You acknowledge that Broker will never be in possession of any cargo being transported in connection with use of the Service, and that Broker will not be responsible or have any role in the securement of cargo for transportation.
During the term of this Agreement, and for a period of one (1) year from its termination, you shall neither initiate nor accept any direct or indirect business relationship with any Shipper where Shipments to or from such Shipper were first transported pursuant to the Service, or in connection with use of the Service. Your obligation in this regard extends to instances where a Shipper contacts you and seeks to establish a business relationship that does not include Broker. This provision shall continue in force beyond termination of this Agreement for one (1) year subsequent to termination.
If you book or otherwise makes available any direct or indirect business relationship with any Shipper that was first introduced to you by Broker in violation of this Agreement, you shall be jointly and severally liable with the Shipper to Broker for each such violation in an amount equal to twenty percent (20%) of all revenues paid by the Shipper to you.
(a) Carrier’s liability for lost, destroyed, damaged or delayed Shipments is governed by 49 USC §14706 (referred to as “the Carmack Amendment”) regardless of whether such standard would apply in the absence of this Agreement. Such liability shall include, but not be limited to, amounts required to inspect, test, segregate and process claims. In addition to any such liability, if Shipper assesses charges against Broker with respect to late deliveries by Carrier, Carrier shall be responsible for such amounts regardless of whether there is loss, damage or destruction to the Shipment in question.
(b) Broker may assist Shippers with claims against Carriers for lost, damaged, delayed or destroyed cargo and Carrier acknowledges and agrees that Broker may likewise file such claims directly as the assignee of the Shipper. Shipper and Broker shall have twelve (12) months from the date of delivery of any Shipment (or, if no delivery, then not less than twelve (12) months from the date on which delivery should have occurred) during which to file claims. Shipper and Broker shall have not less than two (2) years from the date of denial of all or any part of any such claim during which to initiate a legal proceeding with respect to such claim. Carrier will pay, deny or offer to settle any claim hereunder within thirty (30) days of submission. Otherwise, 49 C.F.R. Part 370 will govern processing of claims.
(c) Shipper shall have sole discretion as to whether to allow salvage of any damaged Shipment. If no salvage is allowed, Carrier shall not be entitled to a credit for salvage value. Any expenses incurred in preparation of goods for salvage shall be borne by Carrier.
(d) Carrier will abide by any cargo handling instructions communicated to Carrier by Broker or the Shipper, including any regarding provision of temperature controlled service. If cargo is tendered and a reasonable person would understand such cargo to require controlled temperature service, and no such service has been requested, Carrier shall contact Broker immediately and in any event, prior to loading any such cargo onto Carrier’s conveyance. Without limiting the foregoing, if Carrier is providing service with respect to commodities requiring temperature control, Carrier shall ensure that its equipment is pre-cooled to required temperature ranges prior to or at the time of loading, and shall ensure that temperature is maintained at all times within specified temperature ranges. Carrier shall maintain the ability to provide a downloadable report of temperature during transit, and will retain such records for no less than two (2) years from the date of delivery, which records will be made available to Broker or Shipper upon request. Carrier acknowledges and agrees that failure to abide by instructions regarding handling of food or evidence of possible unauthorized access to shipments may result in rejection of shipments due to possible adulteration or contamination.
(e) Any attempt to limit your liability for lost, destroyed, damaged or delayed Shipments, including, but not limited to, via provisions contained in any bill of lading, delivery receipt or tariff shall be deemed null and void. Exclusions in your insurance coverage shall not exonerate you from this liability.
If you will transport cargo to, from or through California, you warrant that you are compliant with any and all applicable California Air Resource Board regulations and requirements. You shall notify Broker through the Service within three (3) days of any change in your compliance status.
You shall not insert “Flexport Freight, LLC” or any variation of Broker’s name on any receipt, bill of lading, manifest, or other shipping document. In the event you do so, such insertion shall be deemed to be for your convenience, or due to your oversight, and shall not operate to alter Broker’s status as a Broker, or the Carrier’s status as the responsible Carrier. Any bill of lading issued by Carrier shall serve as a receipt only and not as a contract for carriage. The provisions set forth in any shipping document maintained by Carrier (including, but not limited to, any bill of lading, proof of delivery, motor carrier tariff, rate confirmation sheet or other documentation) shall not vary, amend, or alter the terms of this Agreement and such terms shall have no force or effect.
Carrier shall comply with any and all instructions regarding the handling of the Shipment which are communicated to Carrier by Shipper or Broker, whether pursuant to the Service, on the applicable bill of lading, or via other load tender documentation provided to the Carrier. In addition, Carrier shall, and shall cause its drivers, to comply with facility rules in effect at any locations where Carrier is performing pick-up or delivery services.
4.12 Shipper Contracts
You understand and agree that Broker, from time to time, enters into master transportation contracts or like documents with certain Shippers. Such contracts often provide that their terms preempt and govern over any term within a bill of lading or other shipping document that conflicts or is otherwise inconsistent with the contracts. To the extent any transport you undertake hereunder is governed by a between Broker and a Shipper containing such a clause, you agree that any bill of lading or other document you issue shall also be subordinate to and preempted by such contract’s terms. Broker will advise you on request as to whether any such contract or like document containing a preemptive clause exists with respect to specific shipments you undertake. You further understand and agree that such contracts or like documents may contain terms restricting the extent to which you may be entitled to collected charges for accessorial and ancillary services, in which event Broker will not pay related charges notwithstanding any advance notice.
CARRIER SHALL, TO THE FULLEST EXTENT PERMITTED BY LAW, DEFEND, INDEMNIFY, AND HOLD BROKER, THE SHIPPER, AND EACH OF THEIR AFFILIATED ENTITIES HARMLESS FROM AND AGAINST, AND SHALL PAY AND REIMBURSE, ANY AND ALL ALL DIRECT OR INDIRECT LOSS, LIABILITY, DAMAGE, CLAIM, FINE, COST OR EXPENSE, INCLUDING REASONABLE ATTORNEY’S FEES, ARISING OUT OF OR IN ANY WAY RELATED TO THE PERFORMANCE OR BREACH OF THIS AGREEMENT BY CARRIER, ITS EMPLOYEES, SUBCONTRACTORS OR INDEPENDENT CONTRACTORS (COLLECTIVELY, THE “CLAIMS”), INCLUDING, BUT NOT LIMITED TO, CLAIMS FOR OR RELATED TO PERSONAL INJURY (INCLUDING DEATH), PROPERTY DAMAGE AND CARRIER’S POSSESSION, USE, MAINTENANCE, CUSTODY OR OPERATION OF THE EQUIPMENT; PROVIDED, HOWEVER, THAT CARRIER’S INDEMNIFICATION AND HOLD HARMLESS OBLIGATIONS UNDER THIS PARAGRAPH WILL NOT APPLY TO THE PRORATED EXTENT THAT ANY CLAIM IS DIRECTLY AND PROXIMATELY CAUSED BY THE NEGLIGENCE OR OTHER WRONGFUL CONDUCT OF THE PARTY TO BE DEFENDED, INDEMNIFIED OR HELD HARMLESS. CARRIER HEREBY EXPRESSLY WAIVES ANY EXCLUSIVE REMEDY DEFENSE, INCLUDING, BUT NOT LIMITED TO, THOSE AVAILABLE UNDER ANY WORKERS’ COMPENSATION OR OTHER OCCUPATIONAL ACCIDENT STATUTORY REGIME, TO THE EXTENT NECESSARY TO EFFECTUATE CARRIER’S OBLIGATIONS UNDER THIS PROVISION.
Carrier will provide exclusive use of equipment being used to transport any Shipment and will not allow the cargo of any third party to be transported on Carriers equipment while such equipment is being used to haul any Shipment under this Agreement. At no time will Carrier allow any trailing equipment being used to transport any Shipment become unattached from the power unit being used to transport such cargo.
For each Shipment, Shipper will pay Carrier the freight charge the Carrier quoted to the Shipper when Carrier accepted that Shipment on the Platform (“Carrier Fee”), as well as additional amounts, if any, paid by the Shipper for additional services provided by Carrier with respect to a Shipment.
You agree that you are responsible for the collection and/or payment of all taxes, which you may be liable for in any jurisdiction arising from your use of the Service. Broker is not responsible for collecting, reporting, paying, or remitting to you any such taxes.
Broker shall pay freight charges quoted to you on the Service regardless of whether Shippers pay Broker. In exchange for this guarantee of payment, you shall not invoice or otherwise attempt to collect any amounts related to services provided with respect to any Shipment from any Shipper or any other third party. For the avoidance of any doubt, Carrier shall look solely to Broker for payment of freight charges hereunder without recourse against any Shipper or third party. You hereby waive any right you may otherwise have to proceed or commence any action against any Shipper for the collection of any freight bills arising out of transportation services hereunder. Furthermore, Carrier waives any and all lien rights with respect to any Shipment and if any lien is claimed with respect to any such Shipment by Carrier or a third party to which Carrier tenders such Shipment, Carrier shall immediately take such action as is necessary to satisfy such lien.
Broker may, in its sole discretion, offer to Carrier a Service Incentive Payment (“SIP”). The SIP, if any, will be quoted separately from the Carrier Fee. To qualify for the SIP: (i), Carrier must be in compliance with any and all applicable laws, rules and regulations at all times while performing services (including compliance with speed limits and hours of service regulations); (ii) Carrier must deliver the cargo at the appointed time; (iii) Carrier must provide a proof of delivery to Broker within twenty-four hours of delivery which indicates that the cargo was delivered without shortage, loss or damage; and (iv) prior to payment, Broker must not have received any complaint or claim from the Shipper or receiver regarding Carrier’s services with respect to the load in question. If Broker pays the SIP to Carrier, but later learns that the Carrier failed to abide by applicable law in performance of the services to which the SIP related, or if Broker subsequently receives a claim or complaint from the Shipper or receiver related to the services to which the SIP related, Carrier will refund the SIP upon demand. Broker may offset the amount of such SIP against any funds due and owing to Broker.
Broker’s currently utilizes the payment processing functions on the Platform to make payments to Carriers. The Platform’s payment processing functions are provided by Stripe and are subject to the Stripe Connected Account Agreement (available at https://stripe.com/us/connect-account/legal ), which includes the Stripe Services Agreement (available at https://stripe.com/us/legal ) (collectively, the "Stripe Terms"). By using the Platform to receive payment proceeds, you agree to be bound by the Stripe Terms, which may be modified from time to time. As a condition of Broker enabling payment processing services through Stripe, you authorize Broker to obtain all necessary access and perform all necessary activity on your Stripe Connected Account to facilitate your provision of Services as contemplated by the Agreement and your relationship with Broker. You further agree to provide accurate and complete information about you and your business, and authorize Broker to share it and transaction information with Stripe for the purposes of facilitating the payment processing services provided by Stripe. Broker reserves the right to alter its payment processing procedures at its sole discretion and at any time.
Broker agrees to maintain, at its own expense, at all times, at least the following insurance coverage amounts:
General Liability: $1,000,000 Auto Liability: $1,000,000
Contingent Cargo Liability: $100,000
Upon request, Broker may procure insurance coverage amounts that exceed these limits, and the evidence of such coverage shall be in the form of an insurance certificate provided to you on request. Broker’s maximum liability to you for any loss shall be limited to Broker’s insurance policy terms and conditions and the dollar amounts for coverage hereinbelow.
Broker’s contingent cargo insurance is subject to the terms, conditions and certain limitations and/or exclusions as contained in the policy, and the terms, conditions and requirements as outlined within this Agreement, which are subject to change at any time. The existence of Broker’s contingent cargo insurance in no way shifts or places any legal or contractual liability on Broker, nor does it exonerate your duties and liabilities under the 49 USC §14706 or this Agreement..
Except to the extent governed by applicable federal law, this Agreement shall be deemed executed in the State of California and shall be interpreted, in the event of a dispute arising hereunder, under the laws of California without regard to its conflicts of laws provisions. The parties specifically disclaim application of the United Nations Convention on Contracts for the International Sale of Goods. The parties waive any and all rights and remedies provided by Part B to Title IV of Title 49 to the U.S. Code to the extent such rights and remedies conflict with the provisions of this Agreement. Without limiting the foregoing, the parties expressly waive access to records pursuant to 49 C.F.R. Part 371.
In the event of a dispute arising out of this Agreement related to claims by or against Broker, a party’s recourse shall be exclusively settled through binding and confidential arbitration. Arbitration shall be subject to the Federal Arbitration Act. The arbitration shall be conducted before one arbitrator from the Transportation ADR Council, Inc. (“TAC”). Arbitration proceedings shall be conducted under the rules of the TAC.
Upon agreement of the parties, arbitration proceedings may be conducted outside of the administrative control of the TAC. The decision of the arbitrator shall be binding and final and the award of the arbitrator may be entered as judgment in any court of competent jurisdiction. The prevailing party shall be entitled to recovery of costs, expenses and reasonable attorney fees as well as those incurred in any action for injunctive relief, or in the event further legal action is taken to enforce the award of the arbitrator.
Arbitration proceedings shall be conducted in San Francisco County, California, or at such place as mutually agreed upon in writing by the parties. At any time, either party may apply to a court of competent jurisdiction in San Francisco County, California for injunctive or other equitable relief. In the event that either party is granted equitable relief, the party against whom judgment is entered shall be liable for all costs and expenses incurred by the prevailing party including, but not limited to, reasonable attorney fees. This paragraph shall not apply to enforcement of an award of arbitration.
The parties may also proceed in Small Claims Court in San Francisco County, California to resolve any dispute where reasonably expected damages are less than $5,000. Unless preempted or controlled by federal law and regulations, this agreement shall be interpreted and enforced according to the laws of the State of California.
This paragraph does not apply to claims you may have against a Shipper.
This Agreement will remain in full force and effect so long as Carrier bids on shipments on the Platform.. Broker may at any time terminate this Agreement in its sole discretion if (a) you have breached any provision of this Agreement (or have acted in a manner that clearly shows you do not intend to, or are unable to, comply with this Agreement); (b) Broker is required to do so by law (for example, where the provision of the Service to you is, or becomes, unlawful); (c) Broker has elected to discontinue its use of the Platform; or (d) for your poor performance as a Carrier in Broker’s sole discretion.
This Agreement is subject to occasional revision by Broker. In the event of any material changes made to the Agreement, Broker will notify you by electronic mail, or other means of communication, before your next use of the changes on the Platform. Any changes to this Agreement will be effective upon the earlier of (a) the date you accept the new terms or (b) thirty (30) calendar days following your receipt of the notice of the changes. Continued use of the Platform following notice of such changes shall indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes.
This Agreement constitutes the entire agreement between you and us regarding the use of the Service and your provision of motor carrier transportation services. All prior agreements, promises, negotiations, understandings or communications (oral or written) are merged into the terms of this Agreement. In no event will any terms in Carrier’s tariff, bill of lading or other documentation apply to or modify this Agreement. Broker’s failure to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. The word “including” means including without limitation. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. This Agreement may be executed in counterparts.
This Agreement, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Broker’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. The terms of this Agreement shall be binding upon assignees. Broker may assign this Agreement at its sole discretion.
All notices as required by any of the terms and conditions of this Agreement shall be deemed given with the notices prepared, adequately addressed and deposited in the United States mail, postage prepaid. Notices to Broker are adequately addressed as follows:
Flexport Freight LLC
760 Market Street, 8th Floor
San Francisco, CA 94102
Email: legal@flexport.com
Broker has your permission to identify you as a customer of Broker or user of our Services and to reproduce your name and logo on the Site and in any other marketing materials.
If you provide Broker any feedback, suggestions, or other information or ideas (“Feedback”), you hereby assign to Broker all rights in the Feedback and agree that Broker has the right to use such Feedback and related information in any manner it deems appropriate. Broker will treat any Feedback you provide as non-confidential and non-proprietary. You agree that you will not submit to Broker any information or ideas that you consider to be confidential or proprietary.
If Broker, Shipper or Shipper’s Affiliated entities provide you with confidential information relating in any way to their business operations, you shall keep all information strictly confidential, unless disclosure is required by law or judicial process or such information is publicly known or obtained by you without any breach of any confidentiality agreement.
BROKER EXPRESSLY DISCLAIMS ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED OR STATUTORY, INCLUDING THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON- INFRINGEMENT RELATED TO THE PLATFORM. BROKER MAKES NO WARRANTY THAT THE PLATFORM: (A) WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS; (B) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; (C) WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE; OR (D) RESULT IN ANY REVENUE, PROFITS, OR COST REDUCTION. THE PLATFORM MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. BROKER IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS.
YOU AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE PLATFORM, AND ANY SERVICE OR GOOD REQUESTED IN CONNECTION THEREWITH, REMAINS SOLELY WITH YOU, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
BROKER SHALL NOT BE LIABLE TO CARRIER FOR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOST DATA, LOST SALES, LOSS OF GOODWILL, INJURY TO REPUTATION, PERSONAL INJURY, OR PROPERTY DAMAGE ARISING FROM OR RESULTING FROM ANY ACTIVITIES OR OMISSIONS RELATED TO THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, CARRIER’S USE OF THE PLATFORM, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT BROKER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
IN NO EVENT SHALL BROKER’S ' TOTAL LIABILITY TO YOU IN CONNECTION WITH THE PLATFORM AND TRANSPORTATION SERVICES FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION EXCEED FIVE HUNDRED (US $500.00) U.S. DOLLARS PER OCCURRENCE.
THE LIMITATIONS AND DISCLAIMER IN SECTIONS 11.6, and 11.8 DO NOT PURPORT TO LIMIT LIABILITY OR ALTER YOUR RIGHTS AS A CONSUMER THAT CANNOT BE EXCLUDED UNDER APPLICABLE LAW.
THE ASSUMPTION OF RISK AND LIMITATION OF LIABILITY SET FORTH ABOVE IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN BROKER AND YOU.