Terms and Condition
Terms and Conditions of Service
Effective date Jan. 1st 2020
Itochu Logistics (USA) Corp (hereinafter “Itochu Logi” or “Broker”) is a licensed property broker as defined by 49 U.S.C. § 13102 (2) operating under FMCSA license number MC 560824 and is not a motor carrier. Itochu Logi undertakes to arrange for local regional, national or the international transportation of shipments on behalf of its customers (the “Customer”) from various origins and destinations throughout the United States and Mexico. The transportation is furnished by motor or rail carriers selected by Itochu Logi. The Terms and Conditions of Service set forth herein are applicable to the transportation of any shipment for which Itochu Logi is retained to arrange transportation and related services on Customer’s behalf.
Itochu Logi reserves the right from time to time to modify, amend or supplement these Terms and Conditions of Service without prior actual notice. Copies of Company’s most recent Terms and Conditions of Service may be obtained by contacting Itochu Logi or by reviewing its website at www.usitclogi.com.
1. Independent Contractor
Itochu Logi is authorized to act on behalf of the Customer in order to effectuate the selection of Third Parties as set forth in paragraph 3. Said Third Parties may limit their liability and may operate under terms and conditions further defining the rights, obligations, and defenses of those Third Parties. As to all other services, Itochu Logi acts as an Independent Contractor. Itochu Logi shall not be considered an agent of Customer, nor an agent of Carrier for any purpose.
2. Limitation of Actions.
All claims against Itochu Logi for a potential or actual loss must be made in writing and received by Itochu Logi, within 30 days of the event giving rise to claim; the failure to give the Company timely notice shall be a complete defense to any suit or action commenced by Customer. All suits against Itochu Logi must be filed and properly served on Itochu Logi within two (2) years from the date of the loss or damage.
3. No Liability for the Selection or Services of Third Parties and/or Route.
It is expressly understood that, in the performance of its duties, Company shall retain, select and/or subcontract the transportation and related services required by Customer to motor carriers that are duly authorized to transport such shipments pursuant to all applicable regulatory authority. It is understood and agreed that the selected motor carriers are independent contractors with the exclusive control over their respective drivers and employees, and are not agents, employees or authorized representatives of Itochu Logi, its agents or affiliated entities. Unless services are performed by person(s) or firms engaged pursuant to express written instructions from Customer, Itochu Logi shall use reasonable care in its selection of third parties, or in selecting the means, route and procedure to be followed in the handling, transportation, and delivery of the shipment; advice by Itochu Logi that a particular person or firm has been selected to render services with respect to the goods shall not be construed to mean that Itochu Logi warrants or represents that such person(s) or firms will render such services nor does Itochu Logi assume responsibility or liability for any action(s) and/or inaction(s) of such third parties and/or its agents, and Itochu Logi 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 or the agent of a Third Party; all claims in connection with the act of a Third Party shall be brought solely against such party and/or its agents; in connection with any such claim, Itochu Logi shall reasonably cooperate with Customer.
4. Quotations Not Binding
Quotations as to fees, freight charges, insurance premiums or other charges given by Itochu Logi to the Customer are for informational purposes only and are subject to change without notice; no quotation shall be binding upon Itochu Logi unless Itochu Logi in writing agrees to undertake the handling of the shipment at a specific rate or amount set forth in the quotation and payment arrangements are agreed to between Itochu Logi and the Customer.
5. Declaring Higher Value to Third Parties.
Third Parties to whom the goods are entrusted may limit liability for loss or damage. Itochu Logi will request specific valuation coverage only upon specific written instructions from Customer, for which Customer must agree to pay additional charges. Customer expressly acknowledges that there is a distinction between excess valuation coverage, which increases the legal liability amount of the subject service provider beyond a released value rate, and a request for cargo insurance (insurance is covered in paragraph 5 below). In the absence of written instructions from Customer, and/or in instances in which the Third Party does not agree to a higher declared value, at Itochu Logi’s discretion the goods may be tendered to the Third Party subject to the terms of the Third Party’s limitations of liability and/or terms and conditions of service.
a) Cargo Insurance
Unless specifically requested to do so in writing and confirmed to Customer in writing, Itochu Logi will not procure cargo insurance on Customer’s behalf; in the cases, Customer shall pay all premiums and costs in connection with procuring the insurance.
b) Cargo liability Insurance for Full Truckload
Unless otherwise agreed in writing, the third-party motor carriers selected on Full Truck Load by Itochu Logi to perform the transportation and related services shall maintain insurance covering loss or damage to cargo in the amount of $100,000 per occurrence. In no event, however, shall Itochu Logi be responsible for any motor carrier’s failure to maintain such insurance or for the accuracy of any documentation furnished by such motor carrier to Itochu Logi or Customer evidencing said insurance coverage.
c) Cargo Liability Insurance for Less than Truckload
All carriers transporting Less than Truckload shipments arrangement by Itochu Logi are covered by Carrier, at Carrier’s expense, at a liability limitation level based on the Carrier’s current rate classification system. Liability limitations depend on the type of freight, weight, volume, shipping characteristics, lane, packaging, shipment requirements, and rates. Customer may request from Itochu Logi the name of the Carrier that will be providing services prior to the dispatch of a load so that Customer may view the Carrier’s liability limitations. In no event shall the Carrier’s liability for loss or damage to property exceed $100,000 per occurrence.
7. Disclaimers; Limitation of Liability.
Except as specifically set forth herein, Itochu Logi makes no express or implied warranties in connection with its services and any and all warranties, whether statutory, express or implied are hereby deemed waived and specifically disclaimed; subject to the terms below, Customer agrees that in connection with any and all services performed by Itochu Logi, Itochu Logi shall only be liable for its negligent acts, which are the direct and proximate cause of any injury to Customer, including loss or damage to Customer’s goods, and Itochu Logi shall in no event be liable for the acts of Third Parties. In any event, Itochu Logi’s liability for any loss or damage shall be limited to $50.00 per shipment or transaction. In no event shall Itochu Logi be liable or responsible for consequential, indirect, incidental, statutory or punitive damages even if it has been put on notice of the possibility of such damages, including any and all loss or damages arising from delay of services. Itochu Logi shall have no liability if it is prevented from or delayed in performing its obligations or from carrying on its business by acts, events, omissions or accidents beyond its control, including strikes, lock-outs or other industrial disputes (whether involving the workforce of Itochu Logi or any other party), failure of an utility service or transport network including act of God, war, riot, civil commotion, malicious damage, compliance with any law or government order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors or any other force majeure event. Packing and Marking
All shipments tendered by Customer must be prepared and packaged to ensure safe ground transportation. By tendering a shipment to the motor carrier, Customer certifies that the shipment is sufficiently packaged to withstand the normal rigors of truck transportation. Each package must be legibly marked, prior to the shipment being tendered for transportation. Any article susceptible to damage by ordinary handling must be adequately protected and packaged and marked in such a way as to alert Itochu Logi or the carriers of the possibility of damage from ordinary handling and must bear appropriate labels. Customer shall notify Itochu Logi of any danger inherent in the shipment, including, but not limited to, whether the shipment is flammable, explosive, corrosive or hazardous in any manner. Customer agrees to indemnify and hold Itochu Logi harmless for any loss, injury, death or damage, including all expenses and attorney’s fees, occurring as a result of such condition of the shipment, regardless of whether Customer had notified Itochu Logi prior to the shipment. In addition, Customer must give prior notice to Itochu Logi of its intention to tender hazardous materials and in all events must ensure that it properly declares, packages, and labels any hazardous materials shipments in compliance with the US Department of Transportation hazardous materials regulations.
8. Rate and charges
The Rates and charges for the transportation services arranged by Itochu Logi shall be in accordance with the rates and charges stated in the Rate quotation prepared by Itochu Logistics and provided to Customer for each individual shipment. To the extent a rate and charge is not agreed to prior to Itochu Logi providing its services, Customer and Itochu Logi agree that the amount billed by Itochu Logi and paid by Customer shall be the rates and charges for that particular service.
All charges for services are payable in US dollars and due within fifteen (15) days of the date of Itochu Logi’s invoice. If any charges remain outstanding for more than thirty (30) days from the date of Itochu Logi’s Invoice, such charges shall be subject to 1.5% per month interest, or the highest amount allowed by low, whichever is less.
10. General Lien and Right to Sell Customer’s Property
Itochu Logi shall have a continuing lien on any and all property and documents relating thereto of Customer coming into Itochu Logi's actual or constructive possession, custody or control or enroute, which lien shall survive delivery, for all charges, expenses or advances owed to Itochu Logi with regard to the shipment on which the lien is claimed, a prior shipment(s) and/or both. Customs duties, transportation charges, and related payments advanced by the Itochu Logi shall be deemed paid in trust on behalf of the Customer and treated as pass through payments made on behalf of the Customer for which the Itochu Logi is acting as a mere conduit. Itochu Logi shall provide written notice to Customer of its intent to exercise such lien, the amount of monies due and owing, as well as any on-going storage or other charges; Customer shall notify all parties having an interest in its shipment(s) of Itochu Logi's rights and/or the exercise of such lien. Unless, within thirty days of receiving notice of lien, Customer posts cash or letter of credit at sight, or, if the amount due is in dispute, an acceptable bond equal to 110% of the value of the total amount due, in favor of Itochu Logi, guaranteeing payment of the monies owed, plus all storage charges accrued or to be accrued, Itochu Logi shall have the right to sell such shipment(s) at public or private sale or auction and any net proceeds remaining thereafter shall be refunded to Customer.
11. Freight Charge Indemnification
Itochu Logi shall indemnify, defend and hold harmless customer for any claims for payment for freight charges from carriers, to the extent Customer has paid Itochu Logi in full for the same. Customer shall have no right to offset amounts owned to Itochu Logi for any reason.
12. Bills of Lading
If the terms and conditions of any bill of lading or other delivery receipt conflict with the Terms and Conditions of Itochu Logi herein, these Terms and Conditions of Itochu Logi shall govern. Customer warrants that it will not name Itochu Logi on any bill of lading as anything other than a broker and agrees that in the event Itochu Logi is named on the bill of lading as anything other than a broker it shall not subject Itochu Logi to liability above and beyond its liability herein as a property broker. Customer Agrees further that naming Itochu Logi on the bill of lading is merely an act of convenience for Customer and not in any way intended to change Itochu Logi’s liability to anything other than a broker. Customer acknowledges and agrees that Itochu Logi is not physically hauling any freight and that the Carriers are the ones physically hauling the freight.
Customer agrees to release, indemnify, hold harmless and defend Itochu Logi against any and all claims, demands, suits and liability (collectively “Claim”) arising from Customer’s breach of these Terms & Conditions of services. Subject to Paragraph 6 above, Itochu Logi agrees to indemnify, hold harmless and defend Customer against any Claims to the extent Claims are caused directly by the negligence of Itochu Logi. Neither party shall be liable to the other party for any claims, actions or damages due to the negligence of the other party, nor for any special, or consequential damages.
In the event any Paragraph(s) and/or portion(s) hereof is found to be invalid and/or unenforceable, then in such event the remainder hereof shall remain in full force and effect. Itochu Logi’s decision to waive any provision herein, either by conduct or otherwise, shall not be deemed to be a further continuing waiver of such provision or to otherwise waive or invalidate any other provision herein.
15. Governing Law
Consent to Jurisdiction and venue. These Terms and Conditions of service and the relationship of the parties shall be construed according to the laws of the State of California, without giving consideration to its of conflict of laws principles. Customer and Itochu Logi irrevocably consent to the jurisdiction of the United States District Court and the State courts of California and agree that any action relating to the services performed by Itochu Logi, shall only be brought in said courts, consent to the exercise of in personam jurisdiction by said courts overthem, and further agree that any action to enforce a judgment may be instituted in any jurisdiction.