Terms and Conditions
The enrolled Client (as defined below) agrees to these Freight Club Terms and Conditions (these “Terms and Conditions”), which is a binding legal agreement between such Client and Freight Club, LLC, Delaware limited liability company (“we”, “us” or “Freight Club”). Any individual or entity acting on behalf of the Client in scheduling Shipments (as defined below) hereunder represents and warrants that it has the right to act on behalf of the Client and the right to legally bind Client. These Terms and Conditions shall apply to all Shipments scheduled by Client. Client also agrees to these Term and Conditions on behalf of any third party with an interest in the underlying property constituting the Shipment.
FREIGHT CLUB IS NOT A FREIGHT CARRIER OR AN AGENT FOR A FREIGHT CARRIER.
These Terms and Conditions supersede all agreements, representations, warranties, statements, promises, and understandings of the parties, written or oral, with respect to the subject matter hereof, except as stated herein.
These Terms and Conditions have been accepted and agreed upon by the Client in connection with the placement of a Shipment request by the Client with Freight Club through Freight Club’s website at www.freightclub.com and the submission by the Client of all relevant information regarding such order to Freight Club through such website, including without limitation the Shipper’s name, Shipper’s address, Shipper’s phone number, Shipper’s e-mail, Consignee’s name, Consignee’s address, Consignee’s phone number, carton weights, carton dimensions, service levels required and shipment value. Utilizing the Freight Club Engine, Freight Club has processed such order information and has provided the Client with all available shipping options through the Freight Club Network which have been selected by the Client in connection with confirming its purchase of Freight and Shipping Services and based on a preliminary price quote for such services. Shipments shall be packaged and the value thereof declared by the Client as provided for in Section 4 “Client’s Obligations with Respect to Shipments”, below of these Terms and Conditions.
Freight Club will utilize selected Carriers within the Freight Club Network to fulfill a Client’s order and depending on the service requirements of the Client. The Client’s Shipment will be entrusted to such Carrier, under the terms of the Bill of Lading issued for such Shipment.
Freight Club only accepts and arranges for Shipments with origins and destinations within the continental United States of America (i.e. the lower 48 states of the United States of America and not Alaska and Hawaii). Shipments to Post Office Box addresses will not be accepted. For the avoidance of doubt, Shipments to Puerto Rico as either the origin or destination or both will not be accepted.
Bills of Lading.
Upon receipt by Freight Club of all required information by Freight Club from the Client regarding a Shipment, a Bill of Lading will be generated, either by the Carrier or by Freight Club, and provided to the Client. In the event the Client is not the Shipper, it is the responsibility of the Client to subsequently provide a copy of such Bill of Lading to the Shipper and inform the Shipper of the scheduled pick-up date and to ensure that the Shipper is in possession of the Bill of Lading when the Carrier comes to the pick up the Shipment from the shipping origin address requested submitted by the Carrier. The Client must ensure that the Bill of Lading is provided to the Carrier and that signature from the Carrier is obtained in connection with the Shipment being Tendered to the Carrier. Following the Shipment being Tendered and the Bill of Lading signed by the Carrier, the Shipment shall be carried out in accordance with the applicable service levels and standards described below in Section 5, “Service Levels and Standards”, of these Terms and Conditions, as indicated on the Bill of Lading as the applicable delivery service level for the Shipment.
All Bills of Lading are NON-NEGOTIABLE and shall be deemed, conclusively, to have been prepared by the Client and to bind the Client. Any unauthorized alteration or use of Bills of Lading or Tendering of Shipments to any carrier other than the Carrier that is designated by Freight Club, or the use of any Bill of Lading not authorized or issued by Freight Club shall release Freight Club from all liability and obligations with respect to the corresponding Shipment and void all rate quotes with respect to the Shipment.
If the Client does not complete all the documents or provide all of the information required for completion of a Shipment, or are not appropriate for the Freight and Shipping Services, pick up or destination requested, the Client hereby instructs Freight Club, where permitted by law, to take all actions to complete, correct or replace any documents on such Client’s behalf and at the expense of the Client.
Quoted Shipping Costs.
The quoted shipping cost provided to the Client in connection with the placement of any order for Freight and Shipping Services have been determined by the Freight Club Engine based on the shipping origin, destination, service level requested by the Client, product dimensions, weight and whether the Shipment is to be Tendered shrink-wrapped, on a pallet or as loose cartons. Quotations as to fees, rates of duty, freight charges, insurance premiums or other charges included in such quoted shipping costs are for informational purposes only and are subject to change without notice and shall not under any circumstances be binding upon Freight Club (unless Freight Club in writing specifically undertakes the handling or transportation of the shipment at a specific rate). Quoted shipping costs are subject to change at all times during the time from Carrier pick-up to delivery to the Consignee, should any of the following events occur:
The Client provided product dimensions and weight that are not the same as the final dimensions determined by the Carrier based on its determination on pick-up of the Shipment.
The Shipment was initially declared at the time of booking to be in a certain condition (e.g. palletized; shrink-wrapped; etc.) but was tendered and/or found by the Carrier to be in a different condition at the time of pick-up of the Shipment.
The shipping address of the origin and or destination was changed after a quoted shipping cost on the Shipment was provided by Freight Club.
The Shipment was not ready for pick-up at the time of the Carrier’s arrival due to a delay on the part of the Shipper.
The Shipment was not assigned the correct freight class under the NMFC.
The delivery of the Shipment was not completed at the initially scheduled date and time due to a delay caused by the Consignee.
The Shipment required return to the origin by the Carrier.
Where the quoted shipping cost includes a surcharge tied to fuel costs of the Carrier, such fuel costs, and corresponding surcharge, change after initial estimate in the interim before pick up of the Shipment by the Carrier.
Accessorial fees, representing an extra charge, such as a destination charge or a fee for handling hazardous materials, are incurred or applied by the Carrier for any reason whatsoever, including without limitation as a result of: (i) any updates to the Bill of Lading, (ii) the previously stated dimensions and weight of the Shipment were incorrectly stated, or (iii) changes in the shipping origin and destination addresses.
The initial service level is upgraded by the Client to a higher service level at the time of Tendering of the Shipment.
Final delivery of the Shipment involves traversing additional flights of stairs.
Ferry surcharges may be incurred in connection with delivery to certain isolated zip codes.
Waiting time is incurred by the Carrier in connection with either the pick-up from the Shipper or the delivery to the Consignee of the Shipment.
Storage costs are incurred for Shipments that cannot be delivered or are not accepted by the Consignee.
The foregoing list is not exhaustive of the reasons for any deviations from initial quoted shipping cost estimates for Shipments. The final shipping cost shall be determined based on the extent of changes or deviations in the requirements to complete the pick-up and/or delivery of the Shipment versus those initially declared by the Client to Freight Club prior to obtaining the quoted shipping cost. Upon request, Freight Club will provide to any Client its then current list of cost surcharges applicable for any of the foregoing reasons listed above, along with other details such as Freight Club’s current list of isolated zip codes requiring ferry surcharges.
Client’s Obligations with Respect to Shipments.
All Tendered Shipments are expected to have, and the Client shall, in connection with any Shipment Tendered, always utilize, sufficient packaging to withstand transit. Such packaging shall be in accordance with generally accepted standards for packaging, such as the definitions, specifications and other criteria established by the NMFC: (a) for general packaging; (b) those approved expressly for the transportation of certain commodities, and (c) those regarding performance-based packaging in Item 180, Performance Testing of Shipping Containers, and Item 181, Furniture Package Performance Testing, of the NMFC. Only those package-testing laboratories registered with the Commodity Classification Standards Board (CCSB) are authorized to test packaging in accordance with Items 180 and 181 and only those successfully tested packages that have been reviewed by and registered with the CCSB can be certified under Item 180 or 181, and bear the required certification symbol.
The Client shall truthfully declare the value of the Shipment in connection with submission of its order for Freight and Shipping Services through Freight Club and such declared value may be subject to further confirmation by Freight Club. If the Shipment’s value is not declared prior to shipping or any requested confirmation of declared value not provided, Claims will not be permitted.
Compliance with Law; Hazardous Substances.
The Client shall at all times ensure that all Shipments comply with all applicable laws and regulations. Freight Club prohibits any Shipments containing any hazardous materials or goods inadmissable under the laws of the United States of America and any such Shipment will not be accepted or processed for shipping by Freight Club through any of its Carriers in the Freight Club Network. The Client shall not ship any illegal substances, including without limitation substances which are illegal in any jurisdiction through which transport may pass and the Client shall not ship any hazardous substances or goods inadmissable under the laws of the United States of America. Freight Club reserves the right to decline to process any proposed Shipment for any reason, including without limitation concerns over legality or safety.
Service Levels and Standards.
Set forth below are the service levels and standards for the particular types of Freight and Shipping Services offered by Freight Club. All of the following service levels and standards are subject at all times to changes that Carriers within the Freight Club Network may make in accordance with their arrangements with Freight Club and its affiliates. Subject to the foregoing, Shipments made based on the types of Freight and Shipping Services listed below shall be made in accordance with the applicable terms and conditions therefor set forth below:
Parcel Service (also known as Ground Delivery Service) will only be available for Parcels and any non-Freight Shipments. A signature upon delivery of Shipments under Parcel Service is not required as such Shipments are delivered to the Consignee’s front door or in an area deemed safe at the address provided without the scheduling of a specific a delivery date. With this method of Shipment, upgrade options are not available to the Client.
Curbside Standard Freight Delivery.
Curbside Standard Freight Delivery applies to Shipments exceeding dimensions and the weight threshold of Parcel Service, described above, and is for Freight. Delivery will only be made to the curb of the residence or commercial location (and, in the case of commercial locations, to the location’s receiving dock). The Shipment will be delivered in its original packaging and no assembly of the item being shipped will be provided. The driver or other delivery-persons for the Carrier will have no responsibility to move the Shipment into the Consignee’s home or business, nor will such persons assist with the unpacking or setup of the items in the Shipment. The Consignee is expected to inspect the packaging and the Shipment when the driver or other delivery-persons for the Carrier are onsite and to indicate any irregularities, damage or loss in the Proof of Delivery and the Client (if the Client is not the Consignee) is responsible for ensuring that the terms of its arrangement with the Consignee mandate this. Deliveries will be scheduled with the Consignee and a signature will be required for the Consignee to accept the Shipment.
Front Door Standard Freight Delivery.
Front Door Standard Freight Delivery applies to Shipments exceeding dimensions and the weight threshold of Parcel Service, described above, and is for Freight. Deliveries are completed through the front door of the residence or commercial location (and for commercial locations, such service can include delivery to the location’s receiving dock). The Shipment will be delivered in its original packaging and no assembly of the item being shipped will be provided. The driver or other delivery-persons for the Carrier will have no responsibility to move the Shipment into the Consignee’s home or business, nor will such persons assist with the unpacking or setup of the items in the Shipment. The Consignee is expected to inspect the packaging and the Shipment when the driver or other delivery-persons for the Carrier are onsite and to indicate any irregularities, damage or loss in the Proof of Delivery and the Client (if the Client is not the Consignee) is responsible for ensuring that the terms of its arrangement with the Consignee mandate this. Deliveries will be scheduled with the Consignee and a signature will be required for the Consignee to accept the Shipment.
Room of Choice.
Room of Choice deliveries are completed when the Carrier moves the Shipment to the Consignee’s room of choice within the Consignee’s residence or business. This may include carrying the Shipment up to two flights of stairs from the front door of a residence or a commercial location (and, in the case of a commercial location, receiving dock). The Shipment will be maintained in its original packaging and no assembly is provided with this service. Deliveries will be scheduled with the Consignee and a signature will be required to accept the Shipment.
Inside Delivery and Packaging Removal.
Inside Delivery and Packaging Removal shall entail the Shipment being placed in the Consignee’s room of choice within the residence or business. This may include carrying the Shipment up to two flights of stairs from the front door of a residence or a commercial location (and, in the case of a commercial location, receiving dock). The Shipment will be unpacked and the packaging will be removed. Deliveries will be scheduled with the Consignee and a signature will be required to accept the Shipment.
Inside Delivery and Setup.
Inside Delivery and Setup entails delivery of a Shipment to inside the Consignee’s residence or commercial location and to the Consignee’s room of choice. This may include carrying the Shipment up to two flights of stairs from the front door of a residence or a commercial location (and, in the case of a commercial location, receiving dock). The Shipment will be unpacked, light setup not exceeding 30 minutes will be performed, and packaging will be removed. Light setup includes the use of basic tools. For example, (1) parts may be screwed or bolted together, (2) set next to each other, or (3) on top of each other. Deliveries for this service will be scheduled with the Consignee, and a signature of the Consignee will be required to accept the Shipment.
Set forth below are Freight Club’s policies with respect to certain typical issues that arise in the course of pick-up or delivery of Shipments and the Clients agrees, understands and acknowledges such polices and Freight Club’s obligations under such policies as set forth below.
Refusals, Returns and Storage.
If a Shipment is refused upon delivery or in the event the Consignee cannot be reached to schedule a delivery, Freight Club will advise the Client of such matter and the Client shall respond within five (5) business days with instructions regarding rescheduling of the delivery or return of the Shipment. Notifications shall be sent to the e-mail address provided by the Client in connection with its signing up for the Freight and Shipping Services pursuant to Section 1 above. Storage charges will be levied against the Client if the Client has failed, following notification, to provide Freight Club with instructions on return or re-delivery as follows within ten days of notification: (a) fifty dollars ($50), or for Shipments over five hundred pounds, ten ($10) dollars per hundred pounds of the Shipment, with such charge repeating every thirty days that Freight Club does not receive instruction regarding return or re-delivery from the Client, or (b) such greater amount as may be charged by the applicable Carrier handling the Shipment.
For any returns of Shipments accepted by a Consignee, the Client is responsible for ensuring that the Consignee is be able to provide the Shipment in the same packaging wherein the Shipment was initially placed and the Client must advise the Consignee that the Shipment must be repackaged. If instead the Client elects to have the Carrier repackage the Shipment, the Client will be liable to Freight Club for any repackaging costs incurred by the Carrier.
Cancellation of a Shipment.
Cancellation of a Shipment after the first dispatch of a Carrier for pick up will not be eligible for a full refund on any paid charge for the Freight and Shipping Services related to such Shipment and, if not charged, the Client shall remain liable for charges, notwithstanding such cancellation. In the event of cancellation under such circumstances, any refund will be less the applicable attempted pick-up charges of the Carrier (as well as any other related charges related to the post-dispatch cancellation) and, where the Client has not yet paid for such Shipment, the Client shall remain liable, and be invoiced or otherwise charged, for such charges, notwithstanding the cancellation of the Shipment. If a Shipment is not dispatched for pick-up by a Carrier, the Client is eligible for a full refund for the initial freight cost charged.
Damages, Loss and Claims.
General Statement Regarding Damages, Loss and Claims.
Set forth below is Freight Club’s policy regarding compensation to Clients for any damage or loss related to any Shipment and Claims related thereto. Claims are subject at all times and in all respects to the requirements as well as limitations set forth below. FREIGHT CLUB IS NOT AN INSURANCE COMPANY AND DOES NOT OFFER OR PROVIDE INSURANCE WITH RESPECT TO ANY SHIPMENTS. Freight Club’s liability to any Client for any such loss or damage is in accordance with the liability imposed by 49 U.S.C. 14706(c) (commonly known as the Carmack Amendment to the Interstate Commerce Commission Termination Act) on Carriers. It is the obligation of Client to ensure Shipments are insured at all times, if so desired. Except as provided for below, loss, damage or theft of any Shipment in storage or in transit is the sole responsibility of Client and any risk coverage is the Client’s sole responsibility. For the avoidance of doubt, Freight Club is not liable to arrange for or send any replacement units to any Consignee in the event of damage or loss and any arrangements to replace any items within a Shipment is the responsibility of the Client, Shipper and/or the Consignee. Notwithstanding anything else herein and without limitation to the generality of the foregoing, the following types of Claims will in no event be processed by Freight Club and Freight Club shall have no liability whatsoever to any of the Client, Shipper or a Consignee with respect to any such Claims:
Where there has been a failure to declare truthfully the value of the Shipment or failure to confirm any declared value or replacement value following request for such confirmation.
If the Consignee has elected to have the Shipment left at the destination address without inspection.
Claims involving Concealed Damages.
Claims for damages to glass or mirror components of any items with insufficient packaging for protection of such glass or mirror components.
Claims related to Shipments where the Bill of Lading issued by Freight Club has not been used.
Requirements for Claim of Damage or Loss.
Claims by a Client for damage or loss to a Shipment may only be submitted, and will only be reviewed and processed by Freight Club, where an executed Proof of Delivery has been obtained and the Consignee and such Proof of Delivery includes confirmation of the damage or loss and a description of such loss or the damage to the Shipment item and/or packaging. On request, Client shall provide to Freight Club any other relevant documentation related to a Claim. In addition, Claims are subject to the limitations described in subsection (e) below.
Procedures for Submission and Processing a Claim.
Client has two (2) business days from notification by Freight Club or Consignee of loss or damage in which to provide Freight Club with its written intent to file a Claim. Claims must be submitted by a Client within sixty (60) days of Client’s submission of its written intent to file a Claim. In the event that Client fails to file a Claim within such the time frame, Client waives all rights to file a Claim at a later date. In the event Freight Club denies a duly filed and process Claim, Client shall have one (1) year from the date of such denial to file a lawsuit regarding such Claim, and thereafter Client waives and releases Freight Club and its affiliates of any liability or claims related to the matters underlying such Claim and agrees not to bring any action of proceeding regarding such liability or claim in any forum or with before any governmental authority. Claims for lost items shall be subject to the additional procedures set forth in subsection (c) below for locating the lost item prior to Freight Club reviewing and processing any Claim related thereto. For the avoidance of doubt, in no event shall submission by a Client of a Claim and/or the processing thereof by Freight Club entitle the Client to delay, withhold, modify or adjust any payments outstanding and due to Freight Club for Freight and Shipping Services and the Client shall remain current at all times in its payment obligations, notwithstanding any such pending Claim. CUSTOMER SHALL NOT HAVE ANY RIGHT TO OFFSET OR DEDUCT UNPAID CHARGES FOR FREIGHT AND SHIPPING SERVICES OR OTHER CHARGES DUE AND OWING TO FREIGHT CLUB AGAINST UNPAID CLAIMS FOR LOSS OR DAMAGES (OR ANY OTHER CLAIMS ASSERTED AGAINST FREIGHT CLUB) AND FREIGHT CLUB IS NOT OBLIGATED TO ACT ON ANY CLAIM UNTIL ALL SUCH CHARGES ARE PAID IN FULL.
Freight Club may require access to the damaged Shipment and its packaging for inspection from the Consignee as a requirement to process such Claim and the Client shall take all and any action to provide such access, and any settlement of such Claim shall be subject to Freight Club receiving such access.
Freight Club will take all commercially reasonable efforts to settle and close any Claim (and, if applicable, provide compensation to the Client as provided for in subsection (d) below) within 30 to 120 calendar days of submission of the Claim to Freight Club and acceptance of such Claim by Freight Club as a valid Claim (i.e. not disqualified by failure to meet any of the requirements of subsection (a) above and/or subject to any of the limitations in subsection (e) below).
Special Procedures for Claims for Lost Items.
A Claim for lost items may be filed when the carton or other item count listed on a Bill of Lading does not equal that of the delivery to the Consignee or when the item listed on the Bill of Lading is not the same as the item delivered to the Consignee, subject first to completion of the following search procedures. After notification to Freight Club of any Claim regarding a lost item, Freight Club may coordinate with the applicable Carrier to conduct either a dock search where a Shipment is located in the Carrier’s facilities or a loss trace across the Carrier’s docks or terminals for the missing Shipment. Such searches may take between three to five business days to complete. Once the search has been completed and the Shipment is not located, Freight Club shall begin reviewing and processing such Claim with respect to the lost item (subject to the Claim meeting the other requirements hereunder for a valid Claim).
Compensation for Settled Claims.
Upon Freight Club’s determination in its sole discretion that the damage or loss underlying a Claim is either solely related to the negligence or mishandling of the Carrier or not related to any act or omission on the part of either the Client, Shipper or the Consignee, liability of Freight Club for loss or damage Claims for Shipments in transit or in storage shall be the lesser of: (a) Client’s Cost of the Shipment and (b) $0.60 per pound damaged or lost item in the Shipment. If, with respect to a damaged or lost Shipment, Client has chosen to declare a higher released value of the Shipment than the Client’s Cost and such higher released value has been confirmed and agreed upon by Freight Club prior to the Shipment being Tendered to the Carrier, Freight Club shall cover an additional charge of $1.25 per $100.00 of declared higher released value over the Client’s Cost, provided that such coverage shall be limited to a maximum, aggregate liability of Freight Club of $5,000.00 per Shipment. However, in the event of a Surepost, UPS or United States Postal Service (USPS) shipment, maximum liability shall not exceed $100.
In instances where Claims are settled at greater than sixty percent (60%) of the Client’s Costs, Freight Club shall retain title to the Shipment involved, including the right to dispose or salvage at Freight Club’s sole discretion.
In the event of any accident, theft, delay, storage or other problem which impairs the safe and prompt delivery of a Shipment, Freight Club shall notify Client in accordance with the Client contact information provided by the Client pursuant to Section 1.
Shipments which cannot be delivered due to damage or other reasons shall be subject to the procedures and potential storage charges as provided for in Section 6 above.
Set forth below are the terms of payment by the Client with respect to Freight and Shipping Services purchased through Freight Club pursuant to these Terms and Conditions, which the Client agrees, accepts and acknowledges in all respects.
Credit Card Payment.
Payments made by Clients for Freight and Shipping Services by credit card shall be due and payable at the time of ordering and booking of such services (and subject to adjustment based on final determination of the charge of such Freight and Shipping Services versus the initial quoted shipping cost). Any Client paying for Freight and Shipping Services by credit card, having provided to Freight Club, such Client’s relevant information for credit card payment (card issuer, credit card number, expiration date, etc.) hereby authorizes Freight Club to charge such Client’s credit card for the applicable charge of Freight and Shipping Services purchased pursuant to these Terms and Conditions as well as any supplementary or additional charges that may subsequently apply with respect to such Shipment as described in these Terms and Conditions.
Payment by Clients with a Standing Account with Freight Club.
Certain Clients may have a standing account with Freight Club for payment of Freight and Shipping Services from Freight Club. For such Clients, Freight Club shall invoice such Clients the cost of Freight and Shipping Services as promptly as practicable following either the booking of such services or the completion of the applicable Shipment and payment shall be due no later than 7 days following receipt of such invoice by such Client (or such longer or shorter time stipulated therein). Any balances that remain unpaid for 30 days after such deadline for payment shall incur a penalty of 1.5% of the total invoiced amount being added to the existing invoice total, with the same penalty being levied with every additional 30 day period of non-payment. Freight Club may require such Clients to provide a credit card along with authorization of Freight Club to charge such card for Freight and Shipping Services purchased, whether at the time of booking or when payment therefor may come due as provided for in the foregoing sentence.
Changes in Terms and Conditions.
These Terms and Conditions are subject to change, modification, amendment, updating or supplements by Freight Club at any time, subject to Freight Club notifying the Client of such changes or making such changes available to the Client and thereafter the Client’s agreement to and acceptance of such change, modification, amendment, update or supplement.
Governing Law; Consent to Jurisdiction and Venue.
These Terms and Conditions shall be construed according to the laws of the State of California without giving consideration to principles of conflict of law. All disputes arising hereunder shall be resolved in Los Angeles, California and at no other place. Client (a) irrevocably consents to the jurisdiction and venue of the State and Federal courts located in the City of Los Angeles, California, (b) agrees that any action relating to the services provided by Freight Club shall only be brought in said courts, (c) consents to the exercise of in personam jurisdiction by said courts over it, and (d) further agrees that any action to enforce a judgment may be instituted in any jurisdiction.
No Consequential Damages.
EXCEPT AS EXPRESSLY SET FORTH HEREIN, FREIGHT CLUB MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH REGARD TO DELIVERIES, OR WITH REGARD TO ITS WEBSITE, INFORMATION PROVIDED ON THIS WEBSITE OR SERVICES RELATED TO TRANSACTIONS CONDUCTED ON ITS WEBSITE. FREIGHT CLUB CANNOT GUARANTEE DELIVERY BY ANY SPECIFIC TIME OR DATE. IN ANY EVENT, FREIGHT CLUB SHALL NOT BE LIABLE FOR ANY SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS OR INCOME OR LOSS OF SALE, WHETHER OR NOT FREIGHT CLUB HAD KNOWLEDGE THAT SUCH DAMAGES MIGHT BE INCURRED.
Client will defend, indemnify and hold harmless each of Freight Club, its affiliates, and their respective directors, managers, officers, employees, consultants, financial advisors, counsel, accountants and other agents and representatives from and against any and all Damages, resulting from, arising out of or in connection with (whether due to any claims, actions or demands of a Carrier, any governmental agency or other third party or otherwise) any breach by Client of any covenant, agreement, representation, warranty or obligation to be performed by or of the Client contained in these Terms and Conditions. For the avoidance of doubt, the confiscation or detention of any Shipment by any governmental authority shall not affect or diminish the liability of the Client’s indemnification obligations pursuant to the foregoing sentence.
Freight Club will promptly notify Client of any claim subject to the Client’s indemnification obligations hereunder, but failure to promptly notify Client will only affect such obligations to the extent that such failure materially prejudices Client’s ability to defend the claim. Client may: (a) use counsel of its own choosing to defend against any claim, subject first to Freight Club’s written consent and Client’s written acknowledgement of its liability for its obligations under this Section 12 of these Terms and Conditions with respect to such claim; or (b) settle the claim as the Client may deem appropriate, provided that Client obtain Freight Club’s prior written consent before entering into any such settlement. Freight Club may also assume control of the defense and settlement of any such claim at any time, with counsel of its choosing.
In the event performance by a party to these Terms and Conditions of its obligations hereunder is affected by any cause beyond the reasonable control of such party, including without limitation, fire, labor strife, riot, war, weather conditions, acts of the public enemy, acts of God, acts of terrorism, local or national disruptions to transportation networks or operations, material equipment repairs, fuel shortages, governmental regulations, or governmental request as requisition for national defense, or requests of governmental officials, or the impact of any of the foregoing on any Carrier or the Freight Club Network and provided that the applicable cause is not attributable to the acts or omissions of such party, and such party is taking commercially reasonable measures to remove or mitigate the effects of the applicable cause, then the running of all periods of time, the performance of all obligations required herein shall be suspended during the continuance of such interruption and such party shall not bear any liability for loss or damage to Shipments resulting therefrom. Such party shall promptly notify the other party of such interruption. Such period of suspension shall not in any way invalidate these Terms and Conditions, but on resumption of operations, any affected performance by such party shall be resumed. The affected party shall be permitted an extension period equal to the period of suspension to complete Shipments adversely affected by the suspension. No liability shall be incurred by either party for damages resulting from such suspensions.
When used herein, the following capitalized terms have the meanings assigned to each of them as follows:
“Bill of Lading” means a document issued by either the Carrier or Freight Club which contains the details of a Shipment, including but not limited to origin, destination, the Consignee, product specifications, the number of pieces expected to be delivered and service levels of the delivery, and is a non-negotiable, legally binding document giving title of that Shipment to the Consignee specified therein upon receipt and execution by such Consignee thereof.
“Carrier” means the shipping company or carrier (or their respective subcontractors or service providers) contracted by Freight Club, and within the Freight Club Network, to provide the Freight and Shipping Services to the Client’s Parcels or Freight.
“Claim” means any claim by a Client regarding damage or loss to a Shipment submitted to Freight Club in accordance with these Terms and Conditions.
“Client” means the person or entity transacting with Freight Club and accepting these Terms and Conditions in connection with the purchase of Freight and Shipping Services through the Freight Club website.
“Client’s Cost” means, with respect to a lost or damaged Shipment, the lesser of (a) the cost to manufacture the items in the Shipment, and (b) the Client’s cost to replace or the repair cost of the damaged or missing items.
“Concealed Damages” means damages to the contents of a Parcel or Freight that is not readily apparent or visible on the packaging or from the exterior of such Parcel or Freight and that is not noted on the Proof of Delivery by the Consignee while the Carrier is still at the point of destination.
“Consignee” means the final recipient of a Shipment in accordance with such Shipment’s Bill of Lading. For the avoidance of doubt, the Client may also be at times the Consignee, purchasing the Freight and Shipping Services provided hereunder for delivery of Shipments to itself from a third-party Shipper.
“Damages” means liabilities, damages, awards, settlements, losses, claims and expenses, including without limitation reasonable attorney’s fees and expenses and costs of investigation.
“Freight” means materials or goods, other than, and larger than, Parcels, requiring shipment by airplane, train or truck.
“Freight and Shipping Services” means the freight and shipping services purchased by the Client through Freight Club pursuant to these Terms and Conditions and fulfilled by the Carriers in the Freight Club Network.
“Freight Club Engine” means Freight Club’s proprietary freight service platform that generates all possible options for freight and shipping services within the Freight Club Network based on the applicable input from the Client.
“Freight Club Network” means the aggregation of multiple carriers and other third party providers of freight and shipping services with whom Freight Club and its affiliates have contractual relationships for the provision of such services.
“Girth” means twice the length of a Parcel plus twice the height of the Parcel, as measured in inches.
“NMFC” means the National Motor Freight Classification, being the internationally recognized specifications, rules and requirements for the packaging of goods moving by motor carrier.
“Parcel” means packages within the total Girth of less than 165 inches and a total weight of up to 150 lbs which can be transported via ground shipping.
“Proof of Delivery” means a delivery receipt or other similar document provided by the Carrier, in each case with legally binding effect, and in the Carrier’s standard form, to the Consignee for execution that serves as proof that a Shipment was delivered to such Consignee based on signature thereof by the Consignee or the Consignee’s authorized representative, and that includes a section where the Consignee or the Consignee’s authorized representative can notate any damages or loss of items in the Shipment, whether it be to the packaging, or the items contained in such Shipment.
“Shipper” means the person or business at the origination of the shipping route providing the Shipment. For the avoidance of doubt, the Shipper may also be the Client or a third-party.
“Shipment” means a consignment of one or more items from a Shipper to a Consignee.
“Tendered” means the result of placing a Shipment in the possession of a Carrier.