TERMS AND CONDITIONS
TRANSPORTATION SERVICES
The entire agreement between Kelly Mobile Services, Inc., Inc. (“Company”) and the customer, shipper and/or consignee, as the case may be (“Customer”), consists of: (i) the terms on the Transportation Quote prepared by Company and signed by Customer, (ii) these Terms and Conditions of Transportation Services, and (iii) any additional terms and conditions proposed by Company in writing and signed by Customer ((i) through (iii) collectively, the “Agreement”). The Agreement shall become binding upon the earlier of (i) the Transportation Quote is signed by Customer; or (ii)upon initiation of performance by Company.
These Terms and Conditions of Transportation Services shall apply to all shipments scheduled by Customer and may be amended from time to time by Company, in its sole discretion. Any terms and conditions proposed by Customer which are additional to or inconsistent with the terms and conditions contained in the Agreement shall be void, unless specifically agreed to by Company in writing, signed by Company’s duly authorized representative.
1. Customer Warranties
Customer covenants, represents and warrants, as applicable, that (i) Customer is the legally documented owner of all Equipment tendered to Company, and/or is authorized to cause such Equipment to be transported by Company (ii) Customer will comply with all applicable laws, rules, and regulations including, but not limited to, customs laws, import and export laws, dangerous or hazardous materials laws/rules/regulations, and governmental regulation of any country to, from, through or over which the shipment may be carried; (iii) Customer will provide complete, accurate and timely information regarding each shipment; and (iv) Customer’s authorized representative(s) shall be identified to Company’s agent or coordinator and shall be available at all times at the point of origination to sign, and shall sign, all documents evidencing pick-up of the equipment to be shipped by Company.
The Company assumes no liability to the Customer or to any other person for any loss or expense due to the failure of the Customer to comply with this provision. Any individual or entity acting on behalf of the Customer in scheduling shipments warrants that he/she/it has the right to act on behalf of the Customer and the right to legally bind Customer. Customer understands and agrees that, unless otherwise expressly agreed to by Company in the Agreement, Company shall not acquire title to or assume risk of loss for any of the Equipment on behalf of Customer, and shall not, in the course of providing the services in accordance with the Agreement, acquire title to or assume risk of loss for, or be deemed to have acquired title to or assumed risk of loss for, the Customer’s Equipment. Customer indemnifies, defends, and holds Company harmless against any liability, loss, damage, cost, expense, including attorneys’ fees, claim, or penalty whatsoever arising from Company acting in accordance with Customer’s instructions, from any breach by Customer of any warranty contained in this Agreement, or from the negligence, gross negligence, or willful misconduct of Customer or its employees or agents.
2. Payment
All charges are payable in US Dollars, due and payable NET fifteen (15) days from the date of invoice by Company. Any payment which is Thirty (30) days or more past due shall accrue interest daily at the rate of 1.5% per month (18% per annum) on the outstanding balance due, or the highest rate of interest permitted by applicable law, whichever is less. All funds received by the Company will be applied to the oldest (based on pick-up date) invoice.
3. Claims
Any claims of Customer against Company which are not filed with a court of competent jurisdiction within the earlier of: (a) six (6) months of the date upon which the alleged damage or claim occurred; or (b) within the time statutorily provided by law, are barred.
4. Limitations of Liability
THE COMPANY MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE WITH RESPECT TO THE SERVICES PERFORMED HEREUNDER. THE COMPANY CANNOT GUARANTEE DELIVERY BY ANY SPECIFIC TIME OR DATE. IN ANY EVENT, THE COMPANY SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS OR INCOME, WHETHER OR NOT THE COMPANY HAD KNOWLEDGE THAT SUCH DAMAGES MIGHT BE INCURRED.
COMPANY SHALL FURTHER NOT BE HELD LIABLE FOR ANY CONSEQUENTIAL OR INCIDENTAL DAMAGES SUCH AS DELAYS, EXPEDITED SHIPPING, INCOMPLETE SERVICES, LOSS OF CURRENT OR FUTURE INCOME BEYOND THE ACTUAL COSTS FOR ITS SERVICES. COMPANY IS NOT LIABLE FOR DAMAGE TO ANY EQUIPMENT THAT IS NOT PROPERLY PREPARED FOR MOVE AND TRANSPORT. COMPANY IS NOT LIABLE FOR FUNCTIONAL FAILURE OF ELECTRONIC EQUIPMENT IN THE ABSENCE OF PHYSICAL DAMAGE TO HAVE REASONABLY CAUSED THE FAILURE.
5. Independent Contractor
Company shall be an independent contractor with respect to Customer, and nothing herein contained shall be construed to be inconsistent with such relationship or status. Company’s agents and employees shall under no circumstances be deemed to be agents, employees or representatives of Customer. Customer shall have no control and direction of the persons providing services hereunder. Similarly, in no event shall any person engaged or employed by Customer be considered an employee or agent of Company.
Company shall engage and/or subcontract with such entities and/or individuals as it may deem necessary or appropriate in connection herewith, it being understood and agreed that such entities or individuals shall be subcontractors of Company only and shall be subject to discipline and control solely and exclusively by Company.
6. Cancellation Fee
If Customer cancels a pickup either: (a) less than twenty-four (24) hours of the scheduled pickup time; or (b) after Company’s truck has begun traveling to the pickup location, a cancellation fees will be applied. The cancellation fee will be equal to the greater of: (a) fifty percent (50%) of the amount set forth in the accepted Transportation Quote; or (b) Company’s customary rate based on hours of service and distance travelled prior to cancellation.
7. Force Majeure
Any delay or failure of performance of Company under these Terms and Conditions of Transportation Services shall not constitute a breach or default hereof or of any Transportation Document, or give rise to any claims for damages, if and to the extent that such delay or failure is caused by an occurrence beyond the reasonable control of the Company, including, but not limited to, acts of God, acts of governmental authorities, public enemies, acts or omissions of Customs or quarantine officials, war, riots, rebellions, strikes, sabotage, fire, explosions, accidents, floods, strikes, lockouts, labor disputes, weather conditions, mechanical delay or failure of aircraft or other equipment, the discovery of materially different site conditions, or changes in laws, regulations, or ordinances.
8. Non-Exclusivity
Customer understands and agrees that this Agreement is non-exclusive and that Company shall be free to provide similar services to companies other than Customer and that Customer shall be free to utilize logistics services from companies other than Company provided that these actions do not interfere with the parties’ ability to perform under this Agreement.
9. Permits and Registrations
Company shall be responsible for any permits and registration required by state or federal rules or regulations related to Company’ owned or leased equipment. Customer’s responsibility is to either (a) provide properly registered mobile diagnostic units for transport; or (b) reimburse Company for the cost of any temporary trip permits required to legally move such mobile units.
10. Insurance
Company shall provide normal and adequate insurance to cover its equipment and driver. Customer shall be responsible for coverage of its mobile diagnostic units and any other owned equipment. Customer understands and agrees that Company carries $2,000,000.00 cargo coverage and that Customer is responsible for any loss beyond this amount, which may not be covered by Customer’s policies. Company is not responsible for scanner performance, helium loss or image quality, or loss of income.
11. Preparation of Equipment
Company shall spot, level, install shore power and ready van for service. This does not include ramping of scanners. It is Customer’s responsibility to inspect and assure proper placement of all detachable accessories before use. Company will not be held liable for any incident occurring after Company’ departure from specified delivery site. The Company shall not accept any liability in relation to the medical system lock down procedure unless the Customer has provided clear, complete and written instructions regarding such procedure.
12. Additional Expenses
Company shall provide notification to proper Customer personnel as soon as possible regarding any additional expenses or observed mechanical problems. Customer pre-authorizes Company for expenditures of up to $1,500.00 should emergency repairs be required. Customer agrees to reimburse Company for any state-required permits or levies assessed by municipal agencies for mechanical failures or non-compliance with any rules or regulations pertaining to the equipment. This paragraph applies only to expenses incurred by the mobile diagnostic units provided to Company for transport.
13. Governing Law/Jurisdiction/Venue
This Agreement shall be construed under and in accordance with the laws of the State of California and the parties hereto submit to the jurisdiction of the Superior Court of the State of California for the County of Ventura, and agree that Ventura County, California, shall be the proper venue for any litigation or other proceeding arising from this Agreement.
14. Cooperation
The parties agree that they will execute any additional instruments and documents necessary to carry out the purpose of this agreement.
15. Attorneys Fees
If any legal action arises pursuant to this Agreement, the prevailing party will be entitled to recover its reasonable attorneys’ fees and costs, which may be set by the court in the same action or in a separate action brought for that purpose, in addition to any other relief to which that party may be entitled.
16. Compliance with Law
Both parties understand, acknowledge, and agree that they are bound by and will comply with any and all federal and state rules and regulations that may apply to the matters covered by this Agreement.
17. Miscellaneous
This Agreement is binding and for the benefit of both Company and Customer and their respective representatives, successors and permitted assigns. Neither party may assign this Agreement without the written consent of the other party. Except for the prohibition on assignment contained in the preceding sentence, this Agreement shall be binding upon and inure to the benefits of the heirs, successors and assigns of the parties hereto. Either party’s failure to strictly enforce any provision of this Agreement will not be construed as a waiver of that provision or as excusing the other party from future performance. The Agreement completely and exclusively states the agreement of the Company and Customer regarding the subject matter hereof and supersedes all prior negotiations, representations or agreements with respect to the subject matter hereof, written or oral, and may be amended only by written instruments signed by the Company and Customer. If any part of these Terms and Conditions of Transportation Services is found unenforceable, it will not affect the validity or enforceability of any other provision of these Terms and Conditions of Transportation Services.