1. DEFINITIONS
1.1. “Broker” means Koho an Expeditors company and trade name of Expeditors International of Washington, Inc. and its subsidiaries.
1.2. “Carriage” means the road freight transportation of the Goods from a place of receipt to a place of delivery as instructed by the Customer.
1.3. “Carrier” means one or more Carriers contracted by Broker on behalf of Customer to perform the Carriage.
1.4. “Charges” includes freight, all expenses, costs, detention, demurrage, surcharges, tolls, and any other money obligations arising out of or in any way related to the Carriage, and all collection costs for freight and other amounts due from the Customer, including attorneys’ fees and court costs.
1.5. “Contract of Carriage” means the contract of carriage, bill of lading or other similar transport document issued by the Carrier to Customer in connection with the Carriage.
1.6. “Customer” includes the consignor, shipper, consignee, owner of the Goods, and any person lawfully acting on behalf of any of the above persons.
1.7. “Goods” means articles of every kind and description (excluding Prohibited Goods as defined in section 1.8 below), including their packaging, containers, or other shipping units or materials, as to which Customer desires for Broker to arrange road freight transportation in connection with the Carriage.
1.8. “Prohibited Goods” means any perishable, temperature control, hazardous, in-bond or other type of good that is identified in section 7 below or on Broker’s online platform at the time of booking. 1.9. Terms such as “including” or “includes” are not limiting.
2. AGREEMENT TO BROKERAGE TERMS
By acknowledging its acceptance of these terms through Broker’s online booking platform or by otherwise making or allowing to be made a request to Broker to arrange Carriage, Customer agrees to these Road Freight Brokerage Terms and Conditions (“Brokerage Terms”), which no agent or employee of the parties may alter. The defenses and limits of liability stated in these Brokerage Terms shall apply in any action against Broker under any legal theory, whether in contract, tort, bailment, indemnity, contribution, or otherwise. These Brokerage Terms describe a single transaction for Carriage for explanatory purposes and Customer accepts that these Brokerage Terms apply to all requests and transactions for Carriage.
3. BOOKING, CANCELLATION AND SHIPMENT PROCESS
3.1. After Customer has submitted the necessary booking request information via Broker’s online platform, Broker will notify the selected Carrier of the details of the booking request. Broker does not guarantee Customer’s requests will be fulfilled in whole or in part.
3.2. If a Carrier provides a booking and rate confirmation to Broker, then Broker will generate an “Order Confirmation” (also referred to as a “shipping order”) and provide the same to Customer electronically through the Broker’s online platform. If Customer does not receive an Order Confirmation from Broker within24 hours of placement of the booking request, then it shall be deemed that the booking is not accepted by Broker. Broker reserves the right to cancel or amend any booking request, Order Confirmation or Carriage without liability at any time and without prior notice to Customer and for any reason, including because of technical problems or Carrier availability. Customer’s sole recourse for a cancellation shall be the return of any Charges it has paid to Broker.
3.3. After issuance of an Order Confirmation, the selected Carrier will make its Contract of Carriage available to Customer by uploading it onto Broker’s online platform. Customer shall review the Order Confirmation and Contract of Carriage immediately and notify Broker within 24 hours of any inaccuracies or discrepancies. Broker is not responsible for the description of Goods in the Contract of Carriage and Broker does not guarantee that a Carrier will accept any booking request or tender of Goods.
3.4. It is the sole responsibility of the Carrier to provide Customer with a proof of delivery signed by the authorized recipient or consignee (“Proof of Delivery”) at the time of delivery of the Goods. Carrier may upload a copy of the Proof of Delivery onto Broker’s online platform.
3.5. Customer may cancel or modify a booking before a Contract of Carriage becomes available to Customer on Broker’s online platform. After that time, Customer may only cancel or modify the booking by contacting Broker directly. Any cancellation or modification by Customer may result in cancellation fees, penalties or additional service Charges being applied for which Customer will remain liable.
4. BROKER'S UNDERTAKING: ARRANGING OF CARRIAGE OR PERFORMING OF CARRIAGE
4.1. Customer understands and agrees that: (a) When Broker arranges the Carriage, Broker is a Title 49 freight Broker with such operating authority from the Federal Motor Broker Safety Administration—docket number MC169472; (b) When Broker arranges the Carriage, Broker is neither acting in the capacity of a motor carrier nor a freight forwarder and Broker does not hold itself out in those capacities for the booking of the Carriage. Rather, Broker will contract Carriers on behalf of Customer to perform the Carriage and the Carrier, not Broker, will prepare and provide the Contract of Carriage; (c) Carrier shall perform the Carriage pursuant to the terms and conditions set out in its Contract of Carriage and Broker shall not be responsible for any disputes, claims or damages, including loss, damage, delay, destruction or theft of Goods arising directly or indirectly out of the Carriage, and such disputes, claims and damages shall be resolved solely between Customer and Carrier; (d) Customer agrees that it may select Broker to perform the Carriage in its capacity as a Title 49 freight forwarder with such operating authority from the Federal Motor Broker Safety Administration – docket number FF-7940. In such case, the respective rights, obligations and liabilities as between Customer and Broker for such Carriage shall be determined exclusively in accordance with the terms and conditions of the applicable Contract of Carriage issued by Broker for the shipment.
4.2. Except as specifically set forth in these Brokerage Terms, Broker makes no express or implied warranties in connection with its services. Customer agrees that these Brokerage Terms and, particularly, this paragraph, satisfies the express written waiver required under 49 U.S.C. section 14101(b)of all Customer’s rights and remedies under the federal law commonly known as the “Carmack Amendment,” excluding the provisions governing registration, insurance, or safety fitness.
5. NOTICES OF CLAIM AND TIME-BARS
5.1 Customer must provide Broker with written notice of a claim for any loss, damage, or non-delivery of Goods within the notice period specified in the Contract of Carriage issued by the Carrier or 90 days after delivery of the Goods or the date on which the Goods should have been delivered, whichever is earlier. Conditioned on Customer’s timely notice of claim, Broker will forward the same onto the Carrier that performed or undertook to perform the Carriage. As a further condition to Broker’s forwarding of Customer’s claim, Customer must first pay all Charges in full. Customer’s failure to provide written notice to Broker within the above time period shall extinguish Broker’s duty to forward the claim to the potentially responsible Carrier(s). In any event, Broker shall be discharged from all liability to Customer as to any booking services that the Broker has provided unless Customer commences an action in the mandatory venue within nine (9) months after the delivery of the Goods or the date on which the Goods should have been delivered.
5.2. Customer understands that Carriers typically have contractual notice-of-claim periods within which a claimant must make a claim for the loss of or damage to Goods. Unless the Carriage is exempt carriage under 49 U.S.C. section 14101(b), then under the Carmack Amendment, a contractual notice-of-claim cannot be less than nine months after delivery of the Goods or the date on which the Goods should have been delivered. Notwithstanding that a notice of a claim may be submitted on behalf of Customer by Broker to the Carrier, Customer understands and agrees that it, and not Broker, shall be solely responsible to make such a timely notice of claim, understanding that the consequence of failing to make such a timely notice of claim is that Customer’s claim against the Carrier will be time-barred.
5.3. Carriers also typically have contractual time-bar or limitations periods within which a claimant must sue the Carrier for the loss of or damage to cargo. Unless the Carriage is exempt carriage under 49 U.S.C. section14101(b), then under the Carmack Amendment, a contractual limitations period cannot be less than two years from the day on which the Carrier has given written notice to the claimant that the Carrier has disallowed the claim or any part or parts of the claim specified in the timely notice of claim. Customer understands and agrees that it, and not Broker, shall be solely responsible to file such a timely action, understanding that the consequence of failing to timely file such an action is that Customer’s action against the Carriers of the Goods will be time-barred.
6. LIMITATIONS OF LIABILITY
6.1. Customer understands and agrees that Broker’s maximum liability howsoever arising in connection with its arranging of the Carriage shall be limited to the lesser of the Charges for the relevant shipment or Fifty United States Dollars ($50) per shipment. Customer agrees that Broker shall only be liable to Shipper to the extent of Broker’s breach of these Brokerage Terms in performing the services, and Customer shall have the burden of proof as to any such breach. Broker’s failure to arrange any agreed-to special shipping instructions, insurance, security services or carriage requirements, including, team drivers, shall not negate Broker’s limitation of liability, including those which are stated below in Section 16 below.
6.2. Customer understands and agrees that Broker shall not be liable for any loss, damage, delay, destruction or theft of the Goods arising directly or indirectly from any Carriage (including the storage status) of the Goods not only under the Carmack Amendment, and Federal Motor Carrier Safety Administration regulations, but also under any tort principle and other civil or administrative rules and regulations. Customer further understands and agrees to resolve any claims related to the Carriage solely against the performing Carrier, without involving or including Broker. Customer shall indemnify, defend and hold Broker harmless from any claims (including those made by third parties), demands, judgments, legal actions, and expense, including attorneys’ fees and court costs, related to any loss, damage, delay, destruction, theft or Carriage of the Goods. The foregoing provision shall not apply when Broker is performing the Carriage, in which case Broker shall be liable pursuant to the terms of Broker’s Contract of Carriage issued for the shipment.
6.3. Customer understands and agrees that Carriers customarily limit liability for loss of or damage to Goods they transport, undertake to transport, or handle. Unless a higher limit is permitted by a Carrier at the time of booking, any Carrier selected for the Carriage will limit its liability for any loss or damage to Goods to Fifty United States cents ($0.50) per pound not to exceed the lesser of the commercial invoice value of the Goods or One Hundred Thousand Dollars ($100,000) per shipment. Unless Broker otherwise agrees, Broker has no obligation to procure insurance on behalf of Customer. If Broker agrees to procure insurance of Carriage, then Broker shall have the right to select the insurer. As to any insurance-related issue, the insured shall have recourse against the insurer only and not against Broker. Customer shall be responsible for all premiums and for Broker’s charges for the arrangement of such insurance.
6.4 In no event shall Broker be liable for any loss, damage or delay caused by: (a) the act, default or omission of Customer or any other party claiming an interest in the Goods; (b) the nature of the Goods, or a defect or inherent vice of the Goods; (c) improper or insufficient packaging, securing, addressing, labeling, or marking of any Goods or the Customer’s failure to follow any term related to Goods that are not acceptable for transport; (d) acts of God or force majeure, weather conditions, mechanical delays of vehicles, equipment or technical failures, environmental or dangerous goods incidents, perils of the roads, public enemies, public authorities acting with actual or apparent authority, acts or omissions of government officials, authority of law, quarantine, epidemic, pandemic, cyberattacks, stoppages, riots, strikes, civil commotions, hazards incident to a state of war or any other event beyond Broker’s reasonable control; (e) acts or omissions of any person other than Broker, including Carrier, or compliance by Broker or Carrier with any delivery instructions from Customer; or (f) compliance with laws, governmental regulations, orders or administrative requirements.
7. PROHIBITED GOODS
7.1. Certain transportation arrangements and types of cargo are not within the scope of Broker’s booking service. Customer represents and warrants that it will not use Broker’s online booking platform to book any of the following: (a) temperature controlled shipments; (b) in-bond cargo; (c) food or perishable goods; (d) shipments brokered to another motor carrier; (e) international shipments (e.g., those having an origin or destination outside of the Continental United States); (f) household goods; (g) hazardous materials, hazardous waste, dangerous or inflammable goods, chemicals of any kind; (h) oversize or overweight loads requiring special highway permits and/or escorts; (i) shipments with value greater than $100,000; (j) illegal goods including marijuana and marijuana related paraphernalia; (k) firearms, explosives, ammunition; (l) animals, livestock, pets; (m) boats, cars, motorcycles, mobile homes, and other motorized vehicles; (n) tobacco, prescription drugs, alcohol; (o) garbage, refuse, trash; (p) money, bullion, precious gems and the like; (q) antiques, paintings, or other works of art; and (r) server racks.
8. CARRIAGE METHODS AND ROUTES
8.1. Customer understands and agrees that without notice to Customer, Broker may instruct Carrier to perform the Carriage and shall have the right in its sole discretion to: (a) use any means and procedures of transport or storage whatsoever; (b) transfer the Goods from one conveyance to another, including transshipment or carrying on a truck or trailer other than those that Broker arranged in the first instance, or any other means of transport whatsoever; (c) proceed by any route, irrespective of whether such route is the nearest, most direct, customary, or advertised route; or (d) if for any reason, (i) the Carriage is or is likely to be affected by any hindrance, risk, delay, difficulty or disadvantage of any kind, or (ii) Broker does not receive payment from the Payment Source (defined below) or there is any chargeback by a Payment Source, then Broker may take any actions, including but not limited to, those listed in (a) through (c) above.
8.2. Customer agrees that anything done or not done in accordance with the above sub-paragraphs or any delay arising therefrom shall be within the scope of the Carriage and not a deviation.
9. MATTERS AFFECTING PERFORMANCE
If at any time and for any reason the performance of the Carriage is or is likely to be affected by any hindrance, risk, delay, difficulty, or disadvantage of any kind, including the inability of the Goods to be safely or properly carried or carried further, and howsoever arising (even though the circumstances giving rise to such matters as stated above existed at the time of Broker’s Order Confirmation or the Goods were received for shipment), the Carrier in question, at its sole discretion, without prior notice to Customer and irrespective of whether the Carriage has commenced, may treat the performance of the Carriage as terminated and place the Goods at Customer’s disposal at any place that the Carrier, in its sole discretion, deems to be safe and convenient, whereupon the Carriage shall cease. Broker shall nevertheless be entitled to full payment for the Carriage and Customer shall pay any additional Charges including costs of transportation to and delivery and storage at such place.
10. REFUSED DELIVERY
Refusal of the consignee or Customer to take delivery of the Goods notwithstanding their having received notice of the Goods’ availability shall constitute an irrevocable waiver of all claims arising out of or in any way relating to the Goods or the Carriage. Customer shall be liable for any losses, damages, expenses, and liabilities it, the Carrier or Broker incurs arising out of such a refusal, including, the return of the Goods to their place of receipt.
11. CUSTOMER OBLIGATIONS
11.1. Customer must: (a) ensure the Goods do not include any “Prohibited Goods”; (b) provide and disclose all documents and information required to handle, transport, load, unload, store, deliver, distribute or otherwise deal with the Goods; (c) immediately advise Broker of any errors, discrepancies, incorrect statements, or omissions in any document or other information; (d) review all documents, declarations, security filings, and other submissions prepared or filed with any government agency or any other person; and (e) maintain all records in connection with the Carriage as required under applicable laws.
11.2. Broker has no liability for any action taken, fines or penalties assessed against Customer because Customer fails to comply with any law. Broker shall only keep such records that applicable law requires Broker itself to maintain, and Broker shall not act as Customer’s statutory “record-keeper.”
12. COMPLIANCE
12.1. Customer represents and warrants to Broker that: (a) all of the information provided to Broker with respect to the Goods and requested Carriage is true, accurate and correct and no shipment contains any Prohibited Goods; (b) Customer shall comply with all applicable laws and government regulations including but not limited to anti-corruption laws such as the U.S. Foreign Corrupt Practices Act; U.S. Export Administration Regulations. administered by the U.S. Commerce Department’s Bureau of Industry and Security; the International Traffic in Arms Regulations administered by the U.S. State Department’s Directorate of Defense Trade Controls; and the U.S. Anti-Boycott regulations, and the various U.S. economic sanctions programs administered by the U.S. Treasury Office of Foreign Assets Control; (c) the requested Carriage is for Customer’s benefit, is solely for business purposes, and is not in any respect for personal, family or household purposes; and (d) Customer shall also comply with all applicable laws and government regulations, including those relating to the packing, carriage, or delivery of the Goods.
12.2. Broker shall neither be obligated to inquire into the correctness or sufficiency of information provided by Customer on any document or otherwise, nor be liable to Customer for any loss or expense due to Customer’s failure to comply with these Brokerage Terms including this Section 12.
13. FREIGHT AND CHARGES
13.1. Broker will issue a rate quotation for the Carriage of Goods between the origin and destination specified by Customer in the booking request which shall be set forth in the Order Confirmation. Customer acknowledges that the actual Charges it owes Broker may exceed the amount stated in Broker’s initial quotation or Order Confirmation for any reason including the accuracy of the information provided by Customer or the actual services required for the Carriage of the Goods. Customer is responsible for the entirety of all Charges which shall be deemed fully, finally, and unconditionally earned upon Carrier’s pick-up of the Goods.
13.2. When Customer makes a booking request, Customer must give Broker’s third-party payment processor all information necessary for Broker or the processor to debit or place a hold on the following (each, a “Payment Source”)in Customer’s own name with available credit or funds as determined by Broker in its sole discretion: (i) a valid major credit card; or (ii), at Broker’s sole option, a demand deposit account at a federally-insured bank or credit union. To manage risk, Broker may in its sole discretion restrict what constitutes an eligible Payment Source. The booking request constitutes a continuous authorization to Broker and its processor to debit the Payment Source for all Charges, including the authorization to place a hold on the Payment Source to cover the estimated Charges plus an additional amount that Broker reasonably believes in its sole discretion is necessary to cover additional Charges over and above any estimate. These amounts will not be available for Customer’s use until after Broker receives final payment of all Charges for the Carriage. Broker may debit the Payment Source at any time and may resubmit any debit that is not effective for any reason. Customer bears all risk of reversals, chargebacks, reserves fees, penalties or other claims related to a Payment Source. Customer acknowledges and agrees that Broker does not receive, maintain or have access to account information and credentials regarding any Payment Source (collectively, “Payment Source Information”), that Customer is solely responsible for maintaining the security of Payment Source Information and for implementing and maintaining appropriate security measures regarding Payment Source Information. Customer further acknowledges and agrees that it is solely responsible for compliance with the terms and conditions applicable to the Payment Source, that in addition to and not in substitution for the limitations on liability in these Brokerage Terms, Broker is entitled to the same limitations on liability as (but not subject to any of the responsibilities of) the issuer or institution at which Customer maintains the Payment Source (the “Institution”), and that Broker is not responsible for compliance with any requirements for the protection of Payment Source Information, including the Payment Card Industry Data Security Standards. Any claim by Customer with respect to Payment Source Information shall be solely between Customer and the institution.
13.3. If any amount is not paid when due, it shall accrue interest until paid at one and one-half percent (1.5%) per month (19.72% per annum).
13.4. All Charges shall be paid in United States Dollars without any set-off, counter-claim, deduction, or stay of execution before delivery of the Goods. Each invoice by Broker shall be deemed to be correct and conclusively binding on Customer absent manifest error. As a precondition to disputing any Charges, Customer must provide Broker written notice of its objection and the reasons therefor not later than fifteen (15) days after the date of the invoice.
13.5. Payment of any Charges to anyone other than Broker or its authorized third-party payment processor shall not be considered payment to Broker and shall be made at Customer’s sole risk. Customer shall not directly make any payment to Carrier and, if it does so, Customer agrees that Broker shall have the right to demand and receive the due payment from Customer and the Customer shall be responsible for seeking reimbursement from the Carrier directly.
13.6. The class of persons that make up the definition of “Customer” shall, where applicable, be jointly and severally liable to Broker for payment of all Charges including, court costs, expenses and attorneys’ fees Broker incurs in collecting any sums due, failing which shall be considered a default by Customer in the payment of Charges.
13.7. Detention is a charge that will apply where the Carrier is held beyond the free time for loading (origin) or unloading the truck (at destination). Customer will incur hourly incremental detention charges until the driver is able to pick up or deliver and leave the premises (as applicable). Carrier’s record of detention and demurrage charges shall be final unless Customer clearly proves with written or video evidence that such records are inaccurate.
13.8. Customer is solely responsible for direct payment of all taxes for which it is liable in any jurisdiction in accordance with applicable laws, rules and regulations. Broker is not responsible for collecting, reporting, paying, or remitting any such taxes for nor on behalf of the Customer.
13.9. As set forth in section 13.2 above, Broker's standard payment terms require receipt of payment in advance of performance. In the event that Broker, in its sole discretion, extends credit to Customer, the following additional terms in this paragraph supplement Sections 13.1 through 13.8. The amount of credit extended to Customer is subject to periodic review and any decision to increase, decrease or revoke the amount of credit granted to Customer shall be in the sole discretion of Broker without advance notice. By establishing a credit account for Customer, Broker shall be under no obligation to incur any expense, guarantee payment, or advance money on behalf of Customer. Notwithstanding any course of dealing, course of conduct, course of performance or usage of trade, the fact that Broker has made a payment, advance or guarantee shall not constitute a waiver of this provision, nor shall any failure or delay by Broker to exercise any right operate as a waiver thereof or the exercise of any other right. Customer agrees to keep the account current and agrees to pay each invoice according to its terms. Unless other payment terms are shown on the face of the invoice, it is agreed that Broker will receive payment within fifteen (15) days of the invoice date. In the event that Customer fails to keep the account current, all amounts owed by Customer shall immediately become due and payable. Customer shall also become indebted to Broker for costs of collection, including reasonable attorney fees, plus interest as set forth in section 13.3 above, compounded daily and calculated from the due date.
14. BROKERS SPECIFIC AND GENERAL LIENS AS TO THE GOODS AND ANY PROPERTY OF CUSTOMER
Broker has a general lien on any and all Goods and other property (and documents relating thereto) now or hereafter in Broker’s possession, custody or control or en route as security for all Charges and any other existing and future indebtedness and obligations of Customer to Broker. This lien is in addition to any other rights and remedies Broker may have under other agreements or applicable law, and shall survive delivery or release of any Goods. Broker has the right to withhold delivery or release of any Goods if Customer is in breach of any indebtedness or obligation to Broker, even if not related to such Goods. If any such indebtedness or obligation is unsatisfied, Broker may, in addition to all other rights and remedies under other agreements and/or applicable law, exercise all of the rights and remedies of a secured party under the Uniform Commercial Code. Any notice required to be given of a sale or other disposition made at least ten (10) days before a proposed action constitutes fair and reasonable notice. Any surplus from the sale or other disposition, after deduction for all sums owed to Broker, shall be transmitted to Customer, and Customer shall be liable for any deficiency.
15. DESCRIPTION OF GOODS AND NOTIFICATION
15.1. Customer’s description of the Goods in a sealed trailer, shipping container, or package by Customer or on its behalf shall not be binding on Broker, and the description declared by Customer on any document is information Customer provides solely for its own use. Customer understands that Broker has not and will not verify the contents, weight, or measurement of a sealed trailer, shipping container, or package, or the weight or measurement, or the value, quantity, quality, description, condition, marks, labels, or numbers of the contents thereof. Broker is under no responsibility whatsoever in respect of such description of Goods and Customer shall indemnify and hold Broker harmless from and against any claims, loss, damage, liability, and expense, including attorneys’ fees that Broker has incurred, arising out of orin any way connected with or caused by, in whole or in part, such description of Goods. 15.2. Broker, its agents, and servants shall not in any circumstances whatsoever be under any liability for insufficient packing or inaccuracies, obliteration or absence of marks, labels, numbers, addresses or description, or for mis delivery due to marks or counter marks or numbers, or for failure to notify the consignee of the arrival of the Goods, notwithstanding any custom of the place of delivery to the contrary.
16. DELAY, CONSEQUENTIAL LOSS, ETC.
16.1. BROKER DOES NOT UNDERTAKE THAT THE GOODS WILL BE TRANSPORTED FROM THE PLACE OF RECEIPT, OR WILL ARRIVE AT THE PLACE OF DELIVERY, OR WILL BE SHIPPED ON BOARD ANY PARTICULAR TRUCK OR OTHER CONVEYANCE AT ANY PARTICULAR DATE OR TIME OR TO MEET ANY PARTICULAR MARKET OR IN TIME FOR ANY PARTICULAR USE. THE SCHEDULER OR ADVERTISED DEPARTURE AND ARRIVAL TIMES ARE ONLY EXPECTED TIMES AND MAY BE ADVANCED OR DELAYED AND BROKER SHALL IN NO EVENT BE LIABLE FORANY LOSS OR DAMAGE CAUSED BY DELAY.
16.2. BROKER SHALL IN NO CIRCUMSTANCES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, STATUTORY OR SPECIAL LOSS OR DAMAGE ARISING FROM ANY CLAIM CAUSE OF ACTION INCLUDING LOSS OF PROFITS, INCOME OR OPPORTUNITY, REGARDLESS OF WHETHER OR NOT BROKER HAD KNOWLEDGE THAT SUCH DAMAGES MIGHT BE INCURRED.
16.3. AS A FURTHER LIMITATION ON BROKER'S LIABILITY, CUSTOMER AGREES THAT THE MAXIMUM AGGREGATE LIABILITY OF BROKER TO CUSTOMER FOR ANY CHARGES, CLAIMS,DAMAGES, LIABILITIES, JUDGMENTS,COSTS, EXPENSES, PAYMENTS OR LOSSES OF ANY KIND DURING ANY CALENDAR YEAR,WHETHER OR NOT THE SAME ARISE OUT OF OR RELATE TO SERVICES PERFORMED BY BROKER,SHALL NOT EXCEED THE LOWEST OF THE FOLLOWING: (I)FIVE THOUSAND UNITED STATES DOLLARS ($5,000); (II) ACTUAL, DIRECT DAMAGES; OR(III) THE AGGREGATE SERVICE CHARGES PAID BY CUSTOMER TO BROKER DURING THE SAME PERIOD.
16.4. THE LIMITATIONS AND EXCLUSIONS IN THESE BROKERAGE TERMS APPLY EVENIF THEY CAUSE ANY REMEDY OTHERWISE AVAILABLE TO FAIL OF ITS ESSENTIAL PURPOSE AND WITHOUT REGARD TO BROKER'S PERFORMANCE OF FAILURE OR DELAY OF PERFORMANCE.
16.5. THE DEFENSES AND LIMITS OF LIABILITY STATES IN THESE BROKERAGE TERMS SHALL APPLY IN ANY ACTION AGAINST BROKER UNDER ANY LEGAL THEORY, WHETHER IN CONTRACT, TORT, BAILMENT, INDEMNITY, CONTRIBUTION, OR OTHERWISE.
17. INDEMNIFICATION
17.1. Customer shall indemnify, defend and hold Broker harmless from and against all charges, claims, damages, liabilities, judgments, costs, expenses, payments or losses of any kind (including for purchase price, freight, storage, demurrage, detention, duties, taxes, fines, penalties, incidental, indirect, consequential or exemplary damages, and Broker’s litigation expenses and reasonable expenses, including attorneys’ fees) arising from or related to anyone or more of the following:(a) any breach of any representation, warranty, covenant, agreement, undertaking, consent, or waiver by Customer; (b) any failure of Customer to pay or perform when due its obligations to Broker or to any other third party (including any governmental authority, carrier, vendor, holder or assignee of any Contract of Carriage or other commercial document);(c) Customer’s violation of any law, regulation, order; (d) any other claim by any such other person or entity, in each case, even if not due to any negligence or other fault of Customer.
17.2. If any action, claim, suit or proceeding is brought against Broker, Broker shall give notice in writing to the Customer by mail to the address on file with Broker. At Customer’s expense Broker may employ attorneys and other professionals of its own choice in connection with any indemnified matter. Customer’s indemnity obligation in this Section 17 shall not apply to the extent a court of competent jurisdiction enters a final, non-appealable judgment, specifically finding that the charge, claim, damage, liability, judgment, cost, expense, payment or loss was directly and proximately caused by Broker’s gross negligence or willful misconduct.
18. PRIVACY AND DATA PROTECTION
Customer represents and warrants that it complies with all applicable privacy and data protection laws with respect to personal information (“Customer Data”)about contacts, employees or clients of Customer or about other persons that Customer provides to Broker to enable Broker to perform services. With respect to Customer Data, Customer acts as a “data controller” or similar term under applicable law. Customer further represents and warrants that it has obtained or will obtain the proper consent from all data subjects to the disclosure and transfer of Customer Data to Broker. In providing services to Customer, Broker may disclose, transfer, or otherwise process Customer Data and thus act as a “data processor” or similar term under applicable law. In these circumstances, Broker will (i) only process Customer Data in accordance with lawful instructions from Customer in order to carry out its obligations under this Agreement and comply with applicable law;(ii) only disclose Customer Data to entities that regulate or have jurisdiction over Broker, when required by law, or necessary to protect Broker’s rights and properties; and (iii) maintain physical, administrative, and technical safeguards to protect Customer Data from unauthorized access, use or disclosure. Broker may use Customer Data as part of its Customer account opening, general administration process (e.g., in order to carry out compliance, financial checks, invoicing, or debt recovery). For these purposes described in this section, the information may be transferred to or accessible from Broker’s offices around the world. Refer to Broker’s Privacy Statement for further information about how Broker collects, uses and discloses Customer Data.
19. INTELLECTUAL PROPERTY
Broker’s intellectual property provided, demonstrated or used in connection with any services, including databases, software, web pages, programs, processes and procedures, reports, manuals, presentations, patents, trademarks, copyrights, trade secrets, service marks, know-how and any other similar rights or intangible assets recognized under applicable law (all of the foregoing ,including source codes and similar information, “Intellectual Property”), was developed and maintained at great expense, is of great value to Broker, is confidential and proprietary, and shall remain the sole and exclusive property of Broker at all times. Without Broker’s prior written consent, Customer shall neither directly nor indirectly attempt to or actually disclose, use, re-create, duplicate, decode, alter, change, disassemble, decompile, or reverse engineer any Intellectual Property. Customer acknowledges and agrees that a violation of any of the foregoing shall cause irreparable harm to Broker.
20. PARTIAL INVALIDITY
If any provision of these Brokerage Terms shall for any reason be held to be invalid or unenforceable by any court or regulatory body, then the remainder of these Brokerage Terms shall be unaffected thereby and remain in full force and effect.
21. MANDATORY LAW, VENUE, AND JURISDICTION
These Brokerage Terms shall be construed according to the laws of the State of Washington, without regard to conflict of law principles. Customer irrevocably consents to non-exclusive jurisdiction and venue for all proceedings related to disputes involving Customer and Broker in the federal or state courts sitting in King County, Washington. Customer irrevocably consents to the commencement and transfer of all proceedings to such courts. Customer also irrevocably consents to the commencement and to the transfer of venue in any action to any other venue in which Broker is party to an action brought by itself or another person. Customer waives all defenses based on inconvenience of forum in all actions commenced in or transferred to the venues agreed to above.
22. MISCELLANEOUS
Notwithstanding any course of dealing, course of conduct, course of performance, or usage of trade, (a) whenever reference is made to the Broker’s agreement, acceptance, approval or consent, even if not specifically so stated such agreement, acceptance, approval or consent is not effective unless in writing and signed by a duly authorized officer of Broker, (b) neither failure nor delay by Broker to exercise any right, remedy, power, or privilege operates as a waiver, (c) no single or partial exercise of any right, remedy, power, or privilege by Broker precludes any other or further exercise thereof or the exercise of that or any other right, remedy, power, or privilege, (d) no amendment, modification, rescission, waiver or release of all or part of these Brokerage Terms is effective without the Broker’s specific prior written approval, and (e) these Brokerage Terms shall be construed without regard to any presumption or rule requiring that they be construed against the party causing all or part of them to be drafted. Broker may from time to time change these Brokerage Terms. The applicable Brokerage Terms can be found on Broker’s website at https://www.gokoho.com/legal/road-freight-brokerage-terms-and-conditions, are effective fifteen (15) days after such publication, and may differ from the pre-printed terms. In the event of a conflict between these Brokerage Terms and the updated version on Broker’s website in effect on the date that Broker commences services, the updated version controls.
