Transportation Logistics Brokerage
Terms and Conditions of Service
Humboldt Pacific LLC dba HPP Logistics, hereinafter “HPPL”, is a transportation broker registered with the Federal Motor Carrier Safety Administration ("FMCSA") under Docket No. MC 803601 and is licensed to arrange with motor carriers for the transportation of Customer's products in interstate commerce.
1. BUSINESS TRANSACTIONS
The following are standard Terms and Conditions that govern business transactions between HPPL and its customers. These Terms and Conditions outline the provisions by which HPPL provides services for its customers and its responsibilities in connection with such services.
Unless otherwise governed by a separate written Logistics Services Contract between the parties, the Customer (which term shall include the shipper, consignee, owner, or the party designated as the payor of the freight charges) acknowledges and agrees that all motor carrier transportation and related services provided by HPPL shall be subject to these Terms and Conditions beginning the first day of initiation of any service is performed for Customer.
3. HPPL' OBLIGATIONS
HPPL is authorized by Customer to select and engage carriers and service providers as required and to enter into the usual and customary agreements and shall use reasonable care to ensure that they are properly licensed and qualified to perform the requested services. Unless express instructions in writing are received from Customer, HPPL is free to choose the means, route and procedure to be followed in the handling, transportation and delivery of the goods.
4. CUSTOMER'S OBLIGATIONS
A. Customer shall be responsible to ensure that all goods are properly prepared and packaged to withstand the normal rigors and environment of the transportation.
B. Customer shall provide sufficient and accurate information to enable HPPL to make appropriate arrangements for the transportation of Customer's goods, and the determination of the applicable freight and/or accessorial charges. Such information will include, but not be limited to the following when applicable to the shipment: pickup and delivery locations, an accurate description of the goods, the number of packages, pallets or slip-sheets, the type of packaging and if it is shrink-wrapped or banded, the weight and dimensions, the NMFC class, and any special requirements for appointments, special handling or equipment, temperature control, etc. HPL shall not be responsible for any additional freight or accessorial charges or for loss, damage or delay resulting from misrepresentation of the foregoing by Customer.
C. HPPL will use reasonable efforts to transmit Customer's information and requirements to the carrier, but Customer shall remain solely responsible to ensure that all necessary information and instructions are provided to the carrier and included on the bill of lading.
5. COMPENSATION AND PAYMENT
A. All rates, charges and rules, including accessorial services, shall be agreed to in writing and are to be contained in a schedule annexed hereto as Appendix A. Rates may be established or amended verbally, but shall be documented by a Rate Confirmation signed by both parties, and said document shall constitute an addendum to this Agreement.
B. HPL shall invoice Customer or its designated freight payment agent for all freight and accessorial charges promptly upon delivery. Customer understands that certain accessorial charges (detention, redelivery, etc.) may not be identified at time of initial rate confirmation and may be included in final invoices.
C. Customer shall pay HPPL within fifteen (15) days from date of invoice. If invoices remain unpaid for more than thirty (30) days from date of invoice, HPPL may assess interest at the rate of one and one-half (1 1/2 %) percent per month on the unpaid balance. In the event it should be necessary to institute collection action, HPPL shall be entitled to interest, costs and reasonable attorney's fees.
D. Customer shall not set off claims for loss, damage or delay, or claims for overcharge or duplicate payment, against freight or other charges owed to HPPL.
E. Claims for overcharges or undercharges must be filed in writing with the other party within sixty (60) days of the date of the original invoice, or will be deemed waived. Any civil action by HPPL to recover charges for transportation or service provided, or by Customer to recover overcharges, must be commenced within one (1) year from the date of delivery of the shipment.
6. LIABILITY FOR LOSS, DAMAGE OR DELAY
A. It is understood and agreed that HPPL is not a carrier. HPPL assumes no liability as a carrier and HPPL shall not be held liable for loss, damage or delay in the transportation of Customer's property. Under no circumstances shall HPL be liable for any loss, damage, or delay to the goods for any reason whatsoever when said goods are in custody, possession or control of third parties selected by HPPL. Customer further agrees that HPPL shall in no event be liable for any loss, damage or delay to the goods resulting from the negligence or other fault of HPPL, or for any consequential, punitive, or special damages, in excess of $50.00 per shipment.
B. In the event that HPPL receives, stores, or otherwise physically handles Customer's property, HPPL’s liability shall be that of a warehouseman only, and subject to the terms and conditions of its standard warehouse receipt.
C. All matters relating to loss, damage or delay to goods are to be handled directly between Customer and the carrier, and HPPL assumes no responsibility for same other than to assist in the processing of claims and/or attempt to facilitate settlements, if requested by Customer.
7. SURETY BOND
HPPL shall maintain a broker's surety bond that shall meet or exceed the requirements of 49 CFR Part 387 and furnish Customer with proof thereof upon request during the existence of this Agreement.
8. INSURANCE; DECLARED VALUE
HPPL does not provide cargo insurance for the benefit of Customer. Customer is advised that motor carriers, freight forwarders, warehousemen and others to whom the goods are entrusted may limit their liability for loss or damage unless a higher value is declared and a charge based on such higher value is agreed to. Unless specific written instructions from Customer have been received by HPPL in sufficient time prior to shipment, HPPL shall have no obligation to arrange with carriers or others for insurance or to pay charges for declare valuation on behalf of Customer.
9. GOVERNING PUBLICATIONS
All services provided by HPPL are subject to HPPL’s "Terms and Conditions of Service" (the Agreement) which are incorporated herein by reference and are available on request and published on HPPL’ website. The provisions of the "Terms and Conditions of Service" shall govern the rights and obligations of the parties hereto.
A. Upon payment by Customer to HPPL of all applicable freight charges, HPPL shall indemnify and hold Customer harmless against any and all claims, demands, and suits by carriers or others seeking duplicate payment of freight charges from Customer.
B. Customer agrees to indemnify, defend and save harmless HPPL from and against any and all third party claims brought against HPPL, and any and all liabilities incurred by HPPL to third parties, for or on account of bodily injury (including death) or property damage, to the extent such liabilities or claims arise out of or result from the negligence, acts or omissions of Customer or its employees or agents.
It is understood and agreed between the parties hereto that this is a non‑exclusive Agreement and that HPPL shall be free to accept freight for transportation from shippers other than Customer and that Customer shall be free to tender freight for transportation to brokers other than HPPL.
12. INDEPENDENT CONTRACTOR
In the performance of transportation service hereunder, HPPL and the carriers it selects shall be independent contractors and shall not act as an agent or employee of Customer. No employee, agent or other representative of either party shall at any time be deemed to be under the control of both parties. Each party shall be fully liable for all workers' compensation premiums and liability, Federal, State, and local withholding taxes or charges with respect to its respective employees, and each agrees to save the other harmless from any claims brought against the other in relationship thereto. Carriers selected by HPPL shall, at their expense, furnish suitable trucks, trailers, and tractors to transport the commodities tendered by Customer hereunder and assume all costs, including permits, tolls and all other expenses and liabilities incident to the transportation of such commodities.
13. ELECTRONIC DATA INTERCHANGE
Shipping instructions, bills of lading, delivery receipts, claims for loss, damage, undercharges or overcharges, and related communications may be transmitted by EDI in such format as may be agreed to by the parties. Each party shall retain or archive such transmissions in a suitable permanent media and shall make print copies of such records available on reasonable request. It is stipulated that records maintained in the manner provided herein shall be admissible for all purposes in the event of dispute or litigation.
Neither Customer nor HPPL may assign its rights under this Agreement without written approval of the other party, provided, however, that HPL may engage the services of other licensed brokers if necessary, to secure suitable carriers or equipment. Notwithstanding the above, the parties may assign their rights, duties, obligations and interest in and to this Agreement to a parent, subsidiary, affiliate or sister corporation; provided, however, the parties shall not be thereby relieved of the responsibilities or obligations hereunder.
15. PRESERVATION OF RECORDS
HPPL agrees to comply with the requirements of 49 CFR Section 371.3, to maintain its records of transportation performed pursuant to this Agreement, and to make them available to Customer upon written request.
16. DEALING WITH CARRIERS
During the term of this Agreement and for a period of one (1) year beginning with the last day such service was performed for Customer, Customer agrees that it shall not deal with, conduct business, or negotiate directly or indirectly with carriers that HPPL has arranged transportation services, except where necessary in the processing of freight claims or freight charge disputes but only with the full, actual knowledge of HPPL. In the event Customer breaches this provision, it shall be liable to HPPL for the full amount of commissions or other compensation which would have been due HPPL on any and all movements handled by said carriers for Customer for a period of one (1) year, together with interest, costs and reasonable attorney’s fees in the event legal proceedings are necessary to collect said amounts.
All notices under this Agreement shall be in writing and shall be properly given and delivered in person or sent by first class mail addressed as provided for from time to time by the parties hereto.
Humboldt Pacific LLC dba HPP Logistics
4318 Dudley Blvd.
Bldg 475, Bay ‘G’
McClellan, CA 95652
Address as provided by Shipper to HPL
18. GOVERNING LAW
To the extent not governed by the Interstate Commerce Act or other applicable federal statutes, the laws of the State of California shall govern the validity, construction and performance of this Agreement and all actions or proceedings shall be brought in the Superior Court of California, Sacramento County.
The parties hereto agree not to disclose information regarding traffic transported pursuant to this Agreement, or other proprietary information, including but not limited to trade secrets, web technology, etc., to any person or entity not named in the transportation documents.
20. FORCE MAJEURE
Neither party hereto shall be liable to the other for default in the performance of any obligations under this Agreement, or for loss, damage or delay to shipments, if caused by fire, strikes or labor disputes, riot, war, Act of God, governmental order or regulation, or other similar contingency beyond the reasonable control of the respective parties.
21. COMPLETE AGREEMENT; SEVERABILITY
This Agreement, including any Appendices hereto, constitutes the entire Agreement between the parties and may be modified only as evidenced by written agreement and signed by the parties. If any provision of this Agreement shall be determined to be invalid or unenforceable, the remaining portions of this Agreement shall continue to be operative and in full force and effect.
22. DISPUTE RESOLUTION
Any controversy, claim or dispute that cannot be resolved between the parties arising out of the services provided by HPPL to Customer, where the amount in controversy is less than $10,000, shall be submitted to the Transportation Arbitration Board, Inc. for binding arbitration under that organization's Rules and Procedures and the Arbitrator's decision shall be final and binding. If so submitted to arbitration, no court action can be taken by either party prior to conclusion of the arbitration proceeding (other than the filing of suit to protect against the running of any period of limitations set forth in this Agreement or applicable statute), and the Arbitrator's decision shall be final and binding.
Arbitration Clause. If a dispute arising out of or related to an independent contractor’s relationship to Humboldt Pacific, LLC, dba Humboldt Pacific Petroleum and/or HPP Logistics (hereafter “HPPL”), including termination of Contract, cannot be resolved by the parties after direct conversation or mediation, without regard to the nature of the dispute (excluding claims specified below) the independent contractor and HPL agree to submit all such disputes exclusively to final and binding arbitration as described below.
To the fullest extent permitted by law, all disputes between independent contractor (and his/her attorneys, successors, assigns) and HPPL (and its Affiliates, shareholders, directors, officers, employees, agents, successors, attorneys, and assigns) relating in any manner whatsoever to the Contract or termination of the Contract (“Arbitral Claims”) shall be resolved by arbitration. All persons and entities specified in the preceding sentence (other than HPPL and independent contractor) shall be considered third-party beneficiaries of the rights and obligations created by the Arbitration Policy. In addition, this Arbitration Policy is inclusive of and shall be consider a full and binding waiver of employee participation in any and all Class Action litigation between independent contractor (and his/her attorneys, successors, assigns) and HPPL (and its Affiliates, shareholders, directors, officers, employees, agents, successors, attorneys, and assigns) pursuant to all California Supreme Court and the United States Supreme Court’s rulings affirming Class Action waivers in Iskanian v. CLS Transportation, 59 Cal. 4th 348 (2014).
Arbitration Claims shall include, but are not limited to, contract (express or implied) and tort claims of all kinds, as well as all claims based on any federal, state, or local law, statute, or regulation..
By way of example and not in limitation of the foregoing, Arbitral Claims shall include (to the fullest extent permitted by law) any claims arising under Title VII of the Civil Rights Act of 1964, the Age of Discrimination in Employment Act, the Americans With Disabilities Act, and the California Fair Employment and Housing Act, as well as any claims asserting labor code, wage and hourly, wrongful termination, harassment, breach of contract, breach of the covenant if good faith and fair dealing, negligent or intentional infliction of emotional distress, negligent or intentional misrepresentation, negligent or intentional interference with contract or prospective economic advantage, defamation, invasion of privacy, and claims related to disability.
If one party initiates proceedings under the Arbitration Policy, all claims arising out of the same transaction or occurrence or series of transactions or occurrences shall fall within the scope of the Arbitration Policy, subject to the exceptions expressly stated in this policy.
Informal Resolution. It is recognized by both parties that litigation, whether it is pursued through the courts or an alternative dispute resolution policy, is expensive, disruptive and an unwelcome distraction for all concerned. The parties agree that if a dispute arises from the employment relationship, including termination of employment, they will attempt to informally resolve it expeditiously through the mediation process within 60 (sixty) days of notice of the dispute.
The parties shall attempt to agree on a mediator, and may use the list provided by the State Mediation and Conciliation Service for the purpose. If, however, the parties fail to agree on a mediator, or if the dispute is not settled through mediation within 60 days of the notice of the dispute, the parties shall follow the procedure, as set forth below.
Prior to submitting a dispute to arbitration, as described below, the independent contractor and HPL shall make every attempt to resolve the disagreement informally as follows:
The independent contractor and HPL (“the parties”) will choose a mediator from a list provide by the State Mediation and Conciliation Services. This mediator will help the parties in their attempt to settle the dispute informally. The mediator may make suggestions as to an appropriate settlement to the parties but shall not have the power to force either party to settle. If the disagreement is resolved pursuant to mediation, it will be deemed completely concluded.
If the disagreement or dispute is not resolved in the process of mediation and proceeds to arbitration, settlement proposals suggested by either party or the mediator shall not be referred to or have any bearing on subsequent arbitration proceedings. Any mediator involved in the dispute, or resolution thereof, is precluded from acting as an arbitrator in subsequent arbitration proceedings unless all parties have agreed to otherwise in writing.
Arbitration Procedure. Arbitrations, pursuant to this agreement, shall be conducted in accordance with the provision of the Federal Arbitrations Act, and in conformity with the procedures of the California Arbitration Act, set forth at California Code of Civil Procedure, section 1280, et seq. This specifically includes, without limitation, section 1283.05 and all other sections providing for the rights to discovery, or any successor or replacement statutes, except to the extent that such statutes conflict with this agreement, in which case the terms of this agreement shall prevail.
Arbitration shall be conducted by a neutral arbitrator. Arbitrations shall be final and binding upon the parties and shall be the exclusive remedy for all Arbitral Claims. Either party may bring an action in court to compel arbitration under this policy and to enforce an arbitration award.
Otherwise, neither party shall initiate nor prosecute any lawsuit or administrative action in any way related to any Arbitration Claim. Notwithstanding the foregoing, either party may, at its option, seek injunctive relief pursuant to section 1281.8 of the California Code of Civil Procedures.
All arbitration hearings under this Policy shall be conducted in Sacramento, California. In any arbitration proceedings under this Policy, the parties shall have the same rights to discovery as would be available in a proceeding in California Superior Court, as provided in section 1283.05 of the California Code of Civil Procedure. The interpretation and enforcement of this agreement to arbitrate shall be governed by the California Arbitration Act.
THE PARTIES HEREBY WAIVE ANY RIGHTS THEY MAY HAVE TO TRIAL BY JURY AND CLASS ACTION LITIGATION IN REGARD TO ARBITRABLE CLAIMS, INCLUDING WITHOUT LIMITATIONS ANY RIGHT TO TRIAL BY JURY AS TO THE MAKING, EXISTENCE, VALIDITY, OR ENFORCEABILITY OF THE AGREEMENT TO ARBITRATE.
Arbitrator Selection and Authority. All disputes involving Arbitral Claims shall be decided by a single arbitrator. The arbitrator shall be selected by mutual agreement of the parties within 90 (ninety) days of the effective date of the notice initiating the arbitration.
The arbitrator shall have only such authority to award equitable relief, damages, costs, and fees as a court would have for the particular claim(s) asserted. The fees of the arbitrator shall be the sole responsibility of HPL. If the allocation of the responsibility for payment of the arbitrator’s fees would render the obligation to arbitrate unenforceable, the parties authorized the arbitrator to modify the allocation as necessary to preserve enforceability.
All costs associated with discovery shall be the responsibility of the party initiating the particular discovery involved.
The arbitrator shall have exclusive authority to resolve all Arbitral Claims, including, but not limited to, whether any particular claim is arbitral and whether all or any part of this Policy is void or unenforceable.
The arbitrator shall have only such authority to award equitable relief, damages, costs, and fees as a court would have for the particular claim(s) asserted.
23. CONTACT INFORMATION
Should you have any questions about our standard Terms and Conditions, please contact Jeffrey D. Cyphers, Chairman, Phone: 707.499.4002, Fax: 707.312.8007 or e-mail: JCyphers@HumboldtPacific.com.
APPENDIX A to TERMS AND CONDITIONS OF SERVICE; Payment Methods.
HPPL currently accepts the following forms of payment. Alternate payment methods may be available upon request.
Electronic Funds Transfer (Credit EFT). Customer can arrange to have payment electronically requested and automatically withdrawn from its bank account. This payment method can be used in conjunction with any billing and payment schedule.
Check. Customer can send bank checks, money orders, and official cashier checks through the postal service with a copy of HPPL’ remittance invoice and/or statement. This payment method can be used in conjunction with any billing and payment schedule. All check payments shall be sent to Humboldt Pacific, LLC dba HPP Logistics.,4318 Dudley Blvd., Bldg. 475, Bay ‘G’, McClellan, CA 95652.
HPPL reserves the right to provide and approve billing and payment schedules and payment methods.
Customer should check with its bank to ensure that there are no fees for electronic transactions.
It is Customer's responsibility to promptly notify HPPL’s bank of any changes to Customer's billing information or loss, theft, or unauthorized use of Customer's credit card number or bank account.
Customer is responsible for updating Customer's account information and credit card and/or bank account information on file with HPPL, as applicable.
For each payment returned as unpaid, HPPL reserves the right to charge Customer a returned item fee of thirty-five ($35.00) dollars or the maximum amount allowed by law. In addition to the charges for insufficient funds, any applicable finance charges on unpaid balances will be charged. In the event HPPL retains an attorney or collection agency to collect unpaid charges or for the enforcement of these Terms and Conditions, all unpaid charges will be subject to a late payment penalty of one and one half (1.5%) percent per month and not to exceed eighteen (18%) percent per annum of the outstanding balance due per each invoice, and Customer shall also be liable for all attorneys and collection agency fees incurred, together with related costs and expenses.