Terms and Conditions

SOUTHERN DELIVERS LLC

d/b/a Southern Cartage (“Southern Companies”)

STANDARD TERMS AND CONDITIONS

PLEASE READ THESE TERMS CAREFULLY. By tendering a shipment to Southern Companies or by engaging Southern Companies for transportation services, Customer agrees to be bound by these Standard Terms and Conditions of Transportation Service (“Terms”). These Terms govern all transportation services provided by Southern Companies. No modification of these Terms shall be binding unless agreed to in writing by an authorized officer of Southern Companies.

1. DEFINITIONS

The following terms have the meanings set forth below when used in these Terms:

2. SCOPE OF SERVICES

2.1  Motor Carrier Services.  Southern Companies provides transportation services as a licensed motor carrier.

2.2  Precedence.  If the Customer and Southern Companies have previously executed an agreement applicable to the Services, that agreement shall govern to the extent inconsistent with these Terms so long as such agreement is duly executed by both the Customer and Southern Companies. These Terms shall take precedence over and supersede any conflicting provision contained in any Bill of Lading, shipping document, or Customer-supplied terms and conditions. Any Customer terms and conditions attached to a tender or purchase order are expressly rejected and shall have no force or effect.

2.3  Authority to Bind.  Customer warrants that any representative executing a Rate Confirmation, Bill of Lading, or other agreement with Southern Companies has full authority to bind Customer to these Terms.

3. SHIPPING DOCUMENTS

3.1  Accuracy.  Customer warrants and represents that all information supplied on any Bill of Lading, Rate Confirmation, or other shipping document is complete and accurate, including commodity description, weight, piece count, dimensions, declared value, and any applicable hazardous materials information.

3.2  Indemnification for Document Deficiencies.  Customer shall indemnify, defend, and hold Southern Companies harmless from any claim, loss, damage, fee, fine, or penalty arising out of: (a) inaccurate or incomplete information on Customer’s shipping documents; or (b) Customer’s failure to timely supply documents necessary for the performance of the Services.

3.3  Correction of Documents.  If Customer fails to timely supply or complete any document necessary for performance of the Services, Southern Companies may, in its sole discretion and at Customer’s expense, complete, correct, or replace such documents. Southern Companies’ exercise of this right shall not create any liability on Southern Companies’ part for errors in the corrected documents if such errors result from Customer’s failure to provide accurate information.

3.4  Delivery Receipt.  Absent written notation of exception on the delivery receipt at the time of delivery, delivery shall be deemed to have been made in good order and condition. Failure to note exceptions on the Bill of Lading at origin shall constitute prima facie evidence that the Shipment was tendered in good condition.

4. CREDIT, BILLING, AND PAYMENT

4.1  Credit Application.  Prior to the provision of Services, Customer must complete and receive approval of a credit application from Southern Companies. At Southern Companies’ sole discretion, Services may be provided on a prepayment basis pending completion of a credit review.

4.2  Billing Information.  Customer shall supply Southern Companies with the full legal name of the party to be invoiced, and a designated contact name, telephone number, and email address for billing and payment inquiries.

4.3  Payment Terms.  Payment terms shall be established at the time of credit approval. All invoices are due and payable in accordance with the agreed payment terms. Time is of the essence with respect to payment.

4.4  Rate Adjustments and Accessorials.  All rates and quotations are subject to adjustment for fuel surcharges and other applicable accessorial charges. Customer agrees to pay the agreed-upon rate plus all applicable accessorials and adjustments arising from deviations from the originally agreed service parameters. Accessorial charges, including but not limited to the following, shall apply at Carrier’s then-current Tariff rates:

• Detention (time beyond the free time specified in Carrier’s Tariff at shipper or consignee premises)
• Layover and truck order not used (TONU)
• Lumper and unloading fees
• Redelivery charges
• Toll fees and permit fees (oversized/overweight loads)
• Stop-off charges
• Residential delivery surcharge
• Hazardous materials handling fees

4.5  No Pricing Agreement.  Should Southern Companies provide Services prior to reaching a written pricing agreement, Customer agrees to pay: (a) the last written rate quoted by Southern Companies; or (b) if no written quote has been provided, the prevailing market rate for the same or substantially similar services at the time of performance.

4.6  Dispute of Invoice.  Customer must notify Southern Companies in writing of any invoice dispute within five (5) business days of receipt of the invoice, accompanied by reasonably detailed supporting documentation. Failure to provide timely written notice of a dispute shall constitute acceptance of the invoice and a waiver of any defense to payment. Southern Companies reserves the right to reject any dispute not supported by adequate documentation.

4.7  Past-Due Accounts.  Invoices not paid when due shall accrue interest at the rate of one and one-half percent (1.5%) per month, or the maximum rate permitted by applicable law, whichever is less. Customer shall reimburse Southern Companies for all reasonable costs of collection, including attorneys’ fees and court costs.

4.8  Credit Suspension.  Should any invoice become past due, Southern Companies reserves the right to: (a) place Customer’s account on credit hold; (b) cancel or decline pending Shipments; and (c) require prepayment for future Services. Southern Companies retains the right to refuse, revoke, increase, or decrease any line of credit to Customer at any time, without obligation to disclose its reasons for doing so.

4.9  Credit Revocation.  Upon revocation of Customer’s credit, all outstanding invoices, including invoices for Shipments in progress, shall become immediately due and payable.

4.10  Third-Party Payment Services.  Should Customer utilize a third-party payment service, Customer acknowledges that timely payment to Southern Companies remains Customer’s sole responsibility, regardless of any separate arrangement between Customer and such third party.

4.11  Credit Information.  At its discretion, Southern Companies may use publicly available information or information provided by a third-party credit reporting agency in making credit decisions regarding Customer. Customer expressly consents to Southern Companies’ use of such financial data for this purpose.

4.12  Billing Other Interested Parties.  Should any invoice remain unpaid, Southern Companies reserves the right to pursue payment from any other party with a vested interest in the Shipment, including the Consignee or owner of the goods.

4.13  Freight Charges Lien.  Southern Companies shall have a general lien on all cargo in its possession for all unpaid freight charges, storage charges, accessorials, and other amounts due from Customer or Consignee, whether arising under the current Shipment or any prior shipment. Southern Companies may exercise such lien by retaining possession of cargo until all amounts are paid in full, or by selling cargo in accordance with applicable law after reasonable notice.

5. CARGO CLAIMS

5.1  Claims Governed by Federal Regulations.  The filing, processing, and adjudication of all cargo claims shall be governed by 49 C.F.R. Part 370 et seq. and applicable federal law, including the Carmack Amendment (49 U.S.C. § 14706) for interstate shipments.

5.2  Payment Not Contingent on Claims.  Customer shall have no right to withhold payment of any Southern Companies invoice on account of any pending cargo claim. Customer’s payment obligations are independent of, and shall not be offset against, any cargo claim or dispute.

5.3  Concealed Loss or Damage.  For any loss or damage that could not have been discovered or noted at the time of delivery, Customer must provide Southern Companies with written notice of such loss or damage within five (5) business days of delivery. Failure to provide timely notice may be raised as a defense in any subsequent claim proceeding.

5.4  Burden of Proof.  Customer bears the burden of establishing that: (a) the Shipment was tendered in good condition; and (b) the Shipment was delivered in damaged condition or not delivered. Absent written exceptions noted on the delivery receipt, delivery shall be presumed to have been made in good order and condition.

5.5  Mitigation.  Customer is obligated to mitigate its damages from any loss or damage to a Shipment through all commercially reasonable means. Should Customer elect not to salvage reasonably salvageable goods, any recoverable damages shall be reduced by a reasonable salvage allowance.

5.6  Liability Cap.  Southern Companies’ maximum liability for loss of or damage to any Shipment shall not exceed One Hundred Thousand United States Dollars ($100,000.00) per occurrence unless a higher declared value has been agreed to in writing by both Customer and Southern Companies prior to dispatch of the applicable Shipment. Customer may request a higher liability limit, subject to Southern Companies’ approval and payment of any applicable additional charge.

5.7  Exclusions from Liability.  Southern Companies shall have no liability for:

• Loss or damage to goods that are misdescribed or misdeclared;
• Freight delay, chargebacks, detention, or demurrage;
• Loss or damage caused by Customer’s failure to properly pack, block, brace, or secure the Shipment;
• Loss or damage arising from the inherent vice or nature of the goods;
• Loss or damage caused by acts of God, public enemy, authority of law, or other causes beyond Southern Companies’ reasonable control.

5.8  Claim Documentation.  All claims must be accompanied by: (a) documentation identifying, with specificity, the Shipment and Bill of Lading in question; (b) a written demand for a determinable dollar amount; (c) supporting documentation substantiating the claimed amount (e.g., invoice, purchase order); and (d) any additional documentation required by Southern Companies or its insurer to assess coverage, fault, and claim amount. Southern Companies reserves the right to reject any claim that is not accompanied by sufficient documentation.

6. LIABILITY AND INDEMNIFICATION

6.1  Standard of Liability.  As a motor carrier, Southern Companies’ liability for loss of or damage to Customer’s freight shall be governed by the Carmack Amendment (49 U.S.C. § 14706) for interstate shipments, and applicable state law for intrastate shipments, subject to the limitations set forth in these Terms. For all other claims not relating to freight loss or damage, Southern Companies shall not be liable to Customer or any third party for personal injury or property damage unless such injury or damage is solely and directly attributable to Southern Companies’ gross negligence or willful misconduct.

6.2  Customer Indemnification.  Customer shall defend, indemnify, and hold Southern Companies, its officers, directors, employees, and agents harmless from and against any and all third-party claims, suits, losses, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or related to: (a) Customer’s negligence or willful misconduct; (b) Customer’s breach of these Terms; (c) inaccurate or incomplete information provided by Customer in connection with a Shipment; (d) Customer’s failure to comply with applicable laws or regulations governing the contents or transportation of any Shipment; or (e) any claim by a third party with respect to ownership of goods tendered by Customer.

6.3  Consequential Damages Exclusion.  IN NO EVENT SHALL SOUTHERN COMPANIES BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS OR BUSINESS INTERRUPTION, ARISING OUT OF OR RELATED TO THESE TERMS OR THE SERVICES PROVIDED HEREUNDER, EVEN IF SOUTHERN COMPANIES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

6.4  Aggregate Liability Cap.  NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS, SOUTHERN COMPANIES’ AGGREGATE LIABILITY TO CUSTOMER UNDER OR RELATED TO THESE TERMS (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF ACTION) SHALL NOT EXCEED THE LESSER OF: (A) THE TOTAL AMOUNT PAID BY CUSTOMER TO SOUTHERN COMPANIES DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM; OR (B) ONE HUNDRED THOUSAND UNITED STATES DOLLARS ($100,000.00).

6.5  Force Majeure.  Neither party shall be liable for delay or failure to perform its obligations under these Terms to the extent caused by a force majeure event, including without limitation acts of God, fire, explosion, flood, pandemic, epidemic, war, terrorism, civil disturbance, strike, labor shortage, embargo, or any order, regulation, or requirement of any governmental authority. The party affected by a force majeure event shall notify the other party promptly in writing, describing the nature and anticipated duration of the event. Notwithstanding the foregoing, Customer’s obligation to pay invoices that are due and payable shall not be excused by a force majeure event.

7. CUSTOMER OBLIGATIONS

7.1  Tender of Shipments.  Customer shall provide Southern Companies with reasonable advance notice of each Shipment and shall furnish accurate shipping instructions, including origin, destination, commodity description, weight, dimensions, and any special handling requirements.

7.2  Load Securement.  Customer bears responsibility for properly blocking, bracing, and securing all loads to prevent shifting or damage in transit, or for ensuring that any party performing loading on Customer’s behalf does so in accordance with applicable federal and state load securement regulations (49 C.F.R. Part 393, Subpart I). Southern Companies shall not be liable for any damage or loss arising from Customer’s failure to comply with this obligation.

7.3  Commodity Description.  Customer shall accurately and completely describe each Shipment, including commodity type, weight, piece count, dimensions, and any special handling requirements. Southern Companies shall have no liability for loss or damage arising from Customer’s failure to accurately describe the contents of a Shipment.

7.4  Temperature-Controlled Shipments.  If a Shipment requires temperature control, Customer shall properly pre-condition the goods and provide Southern Companies with written notice of the temperature requirements with sufficient advance notice to allow proper pre-cooling or pre-heating of the equipment prior to loading. Customer bears all risk of loss or damage arising from failure to comply with this obligation.

7.5  Regulatory Compliance.  Customer shall comply with all applicable federal, state, and local laws and regulations governing the contents of any Shipment, including without limitation: (a) the marking and labeling requirements of U.S. Customs and Border Protection; (b) the regulations of the U.S. Food and Drug Administration, including the Sanitary Food Transportation Act; (c) all applicable hazardous materials regulations (49 C.F.R. Parts 100–185); and (d) any other applicable import, export, or commodity-specific regulations. Customer bears all responsibilities of a “Shipper” and “Loader” as those terms are used in applicable federal regulations.

7.6  Hazardous Materials.  Customer shall not tender any hazardous material for transportation without prior written disclosure to Southern Companies of the nature of the hazardous material and compliance with all applicable DOT hazardous materials regulations, including proper classification, packaging, marking, labeling, and documentation.

7.7  Mitigation.  Customer shall use all commercially reasonable and good-faith efforts to mitigate its damages arising from any loss, damage, or delay to a Shipment.

7.8  Claim Limitations.  All claims against Southern Companies arising out of or related to these Terms or the Services, other than cargo claims governed by Section 5, must be made in writing and received by Southern Companies within sixty (60) days of the event giving rise to the claim. No action, regardless of form, may be commenced by Customer against Southern Companies more than one (1) year after the cause of action accrued.

7.9  Chassis.  If Customer takes possession of a chassis or other equipment from Southern Companies, Customer agrees to enter into a chassis or equipment interchange agreement covering acceptance, acceptable use, insurance and liability for damage.

7.10  Storage.  If Southern Companies is unable to make delivery (e.g., consignee refuses delivery, facility is closed, or access is unavailable), Southern Companies shall notify Customer promptly. Customer shall provide instructions within a reasonable time. Storage charges shall accrue at Southern Companies’ standard rates until the cargo is redelivered, reconsigned, or returned to origin. Southern Companies shall have a lien on the cargo for all unpaid charges.

8. TERM AND TERMINATION

8.1  Term.  These Terms shall remain in effect from the date of Customer’s first engagement of Southern Companies for Services and shall continue until terminated in accordance with this Section.

8.2  Termination for Convenience.  Either party may terminate the application of these Terms to future Shipments upon thirty (30) days’ prior written notice to the other party. Termination shall not affect any obligations that have accrued prior to the effective date of termination, including payment obligations for Services already performed.

8.3  Termination for Cause.  Southern Companies may terminate Customer’s account and refuse to provide further Services immediately upon written notice in the event of: (a) Customer’s material breach of these Terms, including failure to make timely payment; (b) Customer’s insolvency, bankruptcy filing, or assignment for the benefit of creditors; or (c) Customer’s fraud or willful misconduct in connection with any Shipment.

8.4  Updates to Terms.  Southern Companies reserves the right to update or modify these Terms at any time. Updated Terms shall apply to all Services performed on or after the effective date of the update. Southern Companies will use commercially reasonable efforts to notify Customers of material updates.

8.5  Survival.  All obligations that, by their nature, should survive expiration or termination of these Terms shall do so, including without limitation payment obligations, indemnification obligations, cargo claims, liability limitations, and the governing law provisions.

9. WAIVER OF REGULATORY PROVISIONS

Pursuant to 49 U.S.C. § 14101(b)(1), Customer expressly waives any and all rights and remedies under Title 49, Subtitle IV, Part B of the U.S. Code and the regulations thereunder to the extent such provisions conflict with these Terms, and to the extent such waiver is permissible under applicable law.

10. NON-WAIVER AND SEVERABILITY

10.1  Non-Waiver.  Any delay or failure by Southern Companies to insist upon strict performance of any provision of these Terms shall not be construed as a waiver of that provision or of Southern Companies’ right to enforce these Terms strictly in the future. Southern Companies’ rights and remedies under these Terms are cumulative and non-exclusive.

10.2  Severability.  If any provision of these Terms is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions shall continue in full force and effect and shall not be affected or impaired thereby. The parties agree to negotiate in good faith a valid replacement provision that most nearly reflects the intent of the invalidated provision.

11. GOVERNING LAW AND DISPUTE RESOLUTION

11.1  Governing Law.  These Terms and all disputes arising hereunder shall be governed by and construed in accordance with the laws of the State of Florida, without reference to its conflict of laws principles.

11.2  Exclusive Jurisdiction.  Customer agrees that any legal action or proceeding arising out of or related to these Terms or the Services shall be brought exclusively in the state or federal courts of Miami-Dade County, Florida. Customer hereby irrevocably submits to the personal jurisdiction of such courts and waives any objection to venue in such courts.

11.3  Attorneys’ Fees.  In any dispute, litigation, or arbitration arising out of or related to these Terms, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and court costs from the non-prevailing party.

11.4  Cumulative Remedies.  Southern Companies’ rights and remedies under these Terms are cumulative, and Southern Companies’ pursuit of any right or remedy shall not preclude it from pursuing any other available right or remedy at law or in equity.

BY TENDERING A SHIPMENT TO SOUTHERN COMPANIES OR BY ENGAGING SOUTHERN COMPANIES FOR TRANSPORTATION SERVICES, CUSTOMER ACKNOWLEDGES THAT IT HAS READ, UNDERSTOOD, AND AGREES TO BE BOUND BY THESE STANDARD TERMS AND CONDITIONS.