OptiVia Terms & Conditions

The enrolled customer, shipper and/or consignee (hereinafter collectively referred to as “Customer”) hereby agrees to these TERMS AND CONDITIONS which shall apply to all shipments scheduled by Customer and accepted by OptiVia, LLC, an Ohio limited liability company (the “Company”), on behalf of Customer, unless and until these TERMS AND CONDITIONS are altered or amended by the Company as provided herein.

1. Authority

The Company is licensed by the Department of Transportation (DOT), Federal Motor Carrier Safety Administration (FMSCA) as a property broker operating under Certificate No. MC 586261. THE COMPANY IS NOT A FREIGHT CARRIER OR AN AGENT FOR A FREIGHT CARRIER. Shipper shall not represent to any person or entity or represent upon any document that the Company is anything other than a property broker.

2. Scope of Services

Company agrees to arrange for transportation of Customer’s freight pursuant to the terms and conditions of this Agreement and in compliance in all material respects with all federal, state and local laws and regulations relating to the brokerage of the freight covered by these Terms and Conditions. Company’s responsibility under these Terms and Conditions shall be limited to arranging for, but not actually performing, transportation of Customer’s freight. The parties may, upon written mutual agreement, include additional service terms conditions. Notwithstanding anything contained herein to the contrary, the Company shall be under no oblitgation to accept any particular shipment or load offered to it by Customer.

3. Carrier Rules and Regulations

The General Rules Tariffs, and any other conditions and terms of service maintained by the carriers utilized by the Company, will in every instance take precedence over the Company’s TERMS AND CONDITIONS stated herein. If not in conflict with the carrier’s General Rules Tariff, or other terms and conditions of service, the Company’s TERMS AND CONDITIONS as stated herein shall control. Where a customer enters into a separate contractual agreement with the Company, that agreement will, subject to the carrier’s General Rules Tariff, take precedence over these TERMS and CONDITIONS.

4. Bills of Lading/Shipping Documentation

All Bills of Lading are NON-NEGOTIABLE and shall be prepared by the enrolled Customer or by the Company on behalf of the Customer in a form as provided by the Company and shall be deemed, conclusively, to bind Customer. Any unauthorized alteration or use of Bills of Lading or tendering of shipments to any carrier other than that designated by the Company, or the use of any Bill of Lading form not authorized or approved by the Company shall VOID the Company’s obligations to make any payments relating to this shipment and VOID all rate quotes.

If the Customer does not complete all the documents required for carriage, or if the documents which they submit are not appropriate for the services requested, the Customer hereby instructs the Company, where permitted by law, to complete, correct or replace the documents for them at the expense of the Customer. However, the Company is not obligated to do so. If a substitute form of Bill of Lading is needed to complete delivery of this shipment and the Company completes that document, the terms of such substitute Bill of Lading will govern. The Company is not liable to the Customer or to any other person for any actions taken or not taken on behalf of the Customer under this provision.

Customer’s insertion of the Company’s name on the bill of lading shall be for Customer convenience only and shall not change the Company’s status as a property broker. The terms and conditions of any freight documentation used by the Customer shall not supplement, alter, or modify these Terms and Conditions.

5. Customer’s Warranties

The Customer is responsible for and warrants its compliance with all applicable laws, rules, and regulations relating to the packaging and shipment of its goods including but not limited to customs laws, import and export laws and governmental regulation of any country to, from, through or over which the shipment may be carried. Customer further warrants that to the extent required, it is registered and in compliance with the security plan and training requirements, and any amendments related thereto, relating to hazardous materials, 49 C.F.R. #172.701¬704, and 49 C.F.R. #172.800-804. Customer further warrants that it will immediately advise Company in the event that its registration and/or compliance with these regulations expires or is otherwise terminated. The Customer agrees to furnish such information and documentation as is necessary to establish its compliance with such laws, rules and regulations. 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 hereunder warrants that it has the right to act on behalf of the Customer and the right to legally bind Customer. Customer agrees to indemnify Company for any and all claims or damages incurred as a result of Customer’s failure to comply with the provisions of this section.

6. Payment

In exchange for providing its services and systems to Customer, Customer agrees to pay the Company, without offset, for said services in accordance with the Schedule of Rates shown in the Company’s database or as otherwise agreed to by the parties through a Rate Confirmation Agreement. All Customers are subject to credit approval. Upon credit approval, all charges are payable in US Dollars and are due upon receipt or such other agreed-upon terms. Any payment which is past due shall be subject to an additional charge at the rate of 1½% per month of the average outstanding balance due, or the highest rate of interest permitted by applicable law, whichever is less. In the event the Company retains an attorney or collection agency to collect unpaid charges or for the enforcement of these Terms and Conditions, Customer shall also be liable for all attorney and collection agency fees incurred, together with related costs and expenses. The Customer and any participating shippers, consignors, consignees, freight forwarders or freight brokers are jointly and severally liable for the freight charges owed to the Company relating to each shipment.

The Company reserves the right to amend or adjust the original quoted amount or re-invoice the Customer if the original quoted amount was based upon incorrect information received at the time of the original quote, if additional services by the carrier were required, or as otherwise necessary to perform the required pick up, transportation and delivery functions. Customer is permitted thirty (30) business days from the date of the invoice to dispute any invoiced charges. If the Company does not receive notice of a dispute within the allowable thirty (30) business days, the invoice in question will be deemed correct and otherwise due and payable in accordance with its terms.

7. Claims and Limitations of Liability

It is understood and agreed that the Company is not a carrier or freight forwarder, and the Company shall not be liable for any loss, damage or delay in the transportation of Customer’s cargo. The Company agrees to assist Customer in the filing and/or processing of claims with the applicable carriers. As a part of this, Customer shall assist the Company in this process by providing notice of the claim and all relevant documentation to the Company in time sufficient to allow the Company to adequately present such claims within the time limits required by law or contract. If the Company, in its sole discretion, elects to pay a claim to Customer, Customer shall assign its rights and interest in the claim to the Company in writing in a form reasonably satisfactory to the Company so as to allow the Company to subrogate the loss. Claims will be processed in accordance with 49 C.F.R. 370. The Company will use commercially reasonable efforts to assist and cooperate with Customer to investigate and process any freight loss or damage claims and any claim for damage to Customer’s property occurring in the course of the transportation services rendered to Customer. Subject to the limitations contained herein and those set forth in any individual carrier’s governing General Rules Tariff, the liability for any cargo damage, loss, or theft from any cause shall be determined in accordance with the Carmack Amendment, 49 U.S.C. 14706.

Notwithstanding the foregoing, if a shipment contains freight with a predetermined exception value, as determined by the selected carrier, or is otherwise subject to a released value rate, such limitation of liability will override the otherwise applicable liability coverage.

The filing of a claim does not relieve the responsible party for payment of freight charges. Freight payment is necessary in order to process a claim. Customer may not offset freight or other charges owed to Company against claims for any loss, delay, damage, mis-delivery or non-delivery. The Company has a lien on funds recovered through the processing of damage claims and reserves the right to apply recovery amounts to open past due invoices on account.

8. Damages

Notwithstanding anything contained herein to the contrary, the parties hereto specifically agree that neither party shall be liable to the other party for incidental, consequential (including lost profits), punitive or exemplary damages in connection with this Agreement or the performance or omission of performance or termination hereof, even if the other party has been advised of the possibility of such damages and without regard to the nature of the claim or the underlying theory or cause of action (whether in contract, tort, or otherwise).

9. Rates and Charges

LTL rates are based on the freight class as determined by the NMFC (National Motor Freight Classification) which are based on the actual description, size, and weight of the shipment. Additional fees may apply for other charges including appointment delivery, reweighs and reclassifications, liftgate services, inside delivery or various other accessorial services.

TL rates are based on Dock Door Pickup/Dock Door Delivery and Shipper Load/Consignee Unload and are, unless otherwise stated, mileage based. Additional fees may apply for charges including but not limited to, tractor detention, trailer detention, and driver assistance. Once the Company has contracted with a carrier to move a truckload shipment, the scheduled load must be tendered to the carrier as requested on the bill of lading at the agreed upon price, or an equipment not used fee will be assessed.

Air Freight rates are based on the greater of actual or dimensional weight. If an Air Freight shipment contains oversize freight, additional charges and transit days may apply. Van Line rates are driven by state to state/mileage, weight (actual or density) and commodity/product type.

Flatbed rates are based on equipment type, mileage and weight. If a flatbed shipment contains oversize freight, additional charges and transit days may apply.

10. Transit Times

Unless otherwise specifically noted, all displayed transit times are estimates only and do not include day of pickup. Pickup dates are not guaranteed.

LTL Guaranteed Transit Times, as specifically shown in the Company’s database, represent guaranteed services offered by certain carriers and are subject to all of the carrier’s terms and conditions relating to such services. This service is not a guarantee of pickup and the pickup day is not included in the calculation of LTL Guaranteed Transit Times. Customer acknowledges that additional carrier charges may apply for this service and Customer is liable for all such additional charges related to the shipment. The Company does not guaranty transit times. LTL Guaranteed Transit Times generally do not include holiday and/or no service days as defined by the individual carrier. In the event of carrier failure to comply with the guaranteed service requested and after the carrier has agreed to liability, the Company will credit the account of the Customer for freight charges only, to the extent previously paid by the Customer.

11. Use of Company’s Rates and Systems

The Company grants to the Customer the limited right to use the Company’s proprietary rates and systems during the time of Customer’s enrollment. Such rates and systems are for the use of Customer only and only for use in connection with shipments originating from or destined to Customer’s facilities or Customers. Under no circumstances shall Customer have the right to utilize such rates and systems to arrange for the freight transportation of others. The Company reserves the right to terminate a Customer’s limited right to use the Company’s rates and systems and to otherwise deny access to its database in the event Customer fails to pay the Company’s invoice when due or in the event Customer otherwise breaches any of its obligations under these Terms and Conditions.

12. Carrier Invoices

The Company shall be responsible for payment of the invoices of carriers utilized by the Company to transport Customer’s freight. The parties agree that the Company shall have no obligation to make payment upon a carrier’s invoice until such time as the Customer has made payment to the Company for the transportation involved.

13. Third Party Billing

In those instances where the Customer requests that the Company invoice the Customer’s customer or other third party, the Company agrees to do so, however, Customer guarantees full payment to the Company in the event the customer, consignor, or consignee or other party to which the Customer directed the Company to invoice fails or refuses to make payment within the time provided in paragraph 6 hereof.

14. Applicable Law

These Terms and Conditions and the services to be provided by the Company shall be governed by the laws of the State of Ohio, except where such laws are preempted by federal law.

15. Entire Agreement

These Terms and Conditions may be changed, waived, or modified at anytime by the Company. These Terms and Conditions set forth the entire agreement between the parties with respect to the subject matter herein, and any prior understanding, proposal, representation, or agreement between the parties shall be deemed to have merged into this Agreement.

16. Misc.

THE COMPANY MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH REGARD TO THIS WEBSITE, INFORMATION PROVIDED ON THIS WEBSITE OR SERVICES RELATED TO TRANSACTIONS CONDUCTED ON THIS WEBSITE. THE COMPANY CANNOT GUARANTEE PICKUP OR DELIVERY BY ANY SPECIFIC TIME OR DATE. IN ANY EVENT, THE COMPANY SHALL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY 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.