Neverland Enterprises, LLC., a truckload brokerage service (DOT#4285199) (“Neverland”) is in the business of arranging transportation of property by third-party motor carriers and Neverland holds authority from the Federal Motor Carrier Safety Administration to engage in operations as a transportation broker of general commodities (except Household Goods) in interstate or foreign commerce for Neverland customers (“Shipper”). Neverland and Shipper may be referred to herein individually as a “Party” and collectively as the “Parties.”
Shipper understands and acknowledges that: (1) Neverland is not a motor carrier, (2) Neverland is a broker which arranges for the transportation of freight by third-party motor carriers, and (3) Neverland intends to engage and contract with one or more motor carriers (as defined below), for purposes of satisfying obligations under these Terms and Conditions.
By tendering freight to Neverland, arranging for freight to be tendered to Neverland, or otherwise requesting services from Neverland, Shipper agrees to be legally bound by these Terms and Conditions, as amended from time to time, by Neverland in its sole discretion.
These Terms and Conditions, as amended from time to time, apply to any services of Neverland, unless expressly waived in a writing signed by an officer of Neverland. In addition, Shipper specifically waives access to Broker’s records pursuant to 49 C.F.R. § 371.3.
AGREEMENT
1. SERVICE. Neverland agrees to arrange for transportation of Shipper’s freight (“Goods”) by third-party motor carriers (“Carrier(s)”). Neverland’s responsibility is limited to arranging for, but not actually performing, transportation carriage of Goods. Nothing in these Terms and Conditions shall be deemed to require Neverland to provide services upon request of Shipper, and Neverland reserves the right to accept or decline, in its sole discretion, any particular request for services.
2. SHIPPER RESPONSIBILITIES.
o Compliance with Laws. Shipper warrants that it is the beneficial owner or agent authorized to bind the beneficial owner with respect to these Terms and Conditions. Furthermore, Shipper warrants and represents that Shipper is in compliance with all laws, regulations and requirements applicable to Shipper’s business and requested services. Shipper is responsible for complying with all applicable export and import laws and regulations.
o Special Handling. Unless specialized handling instructions are provided by Shipper in accordance with these Terms and Conditions, Shipper acknowledges and agrees that no specialized handling (including, but not limited to, controlled temperature service or protection from cross contamination) will be provided and Shipper further warrants and represents that any and all cargo has been packaged, so as to ensure cargo shall remain in safe and sanitary condition, without the need for any specialized handling by the Carrier. If Shipper wishes to request specialized handling, Shipper must do so in writing provided to Neverland with the initial request for services with respect to the specific consignment, to which such request relates (“Written Instructions”). Shipper acknowledges and agrees that Neverland’s sole obligation, with respect to any requested special handling, is to pass through to the Carrier the instructions contained in such a notice. Any failure or alleged failure to comply with specialized instructions shall not, in and of itself, result in any presumption that the shipment is unsafe, contaminated, adulterated, or otherwise unfit for its intended purpose or use, nor shall it be otherwise grounds for rejection of a shipment or filing of a claim for cargo loss and damage without proof of actual loss or damage. Under no circumstances shall Neverland, or any Carrier, be obligated to perform the duties of a “shipper” as that term is defined in any applicable law, rule or regulation. BY TENDERING ANY SHIPMENT WHICH CONTAINS FOOD INTENDED FOR HUMAN OR ANIMAL CONSUMPTION, INCLUDING ARTICLES USED FOR COMPONENTS THEREOF, SHIPPER WARRANTS AND REPRESENTS THAT IT HAS INSPECTED THE TRANSPORTATION EQUIPMENT IN QUESTION AND DETERMINED THAT THE EQUIPMENT IS IN COMPLIANCE WITH ANY AND ALL STANDARDS APPLICABLE TO THE GOODS IN QUESTION. ANY THIRD-PARTY MAKING SHIPPER’S GOODS AVAILABLE FOR TRANSPORTATION IS FULLY AUTHORIZED TO ACT ON BEHALF OF SHIPPER WITH RESPECT TO DETERMINING WHETHER THE TENDERED TRANSPORTATION EQUIPMENT IS ACCEPTABLE.
o Hazardous Materials and Dangerous Goods. Shipper will not tender for transportation or storage any hazardous materials or dangerous goods (as defined by applicable international convention or code, or otherwise applicable federal, state or provincial legislation or regulations, including but not limited to those set forth in DOT regulations, 49 C.F.R. Parts 100 to 185, and the Transport Dangerous Goods Regulations/Canada) without first giving written notice to Neverland at the time of the initial request for services with respect to the specific consignment to which such notice relates. Shipper is solely responsible for complying with any and all applicable laws and regulations imposed on the offeror of any such cargo, including with respect to classifying, tendering, packaging and labeling such hazardous materials as dangerous goods.
o Shipper Written Instructions.
- Shipper warrants and represents that it is authorized to tender the Goods to Neverland and that all descriptions of the Goods are complete, accurate, and include all information required by applicable law, rules, or regulation. Shipper must provide necessary shipping instructions and properly identify all Goods in the bill of lading. Shipper will not tender any prohibited or restricted commodities.
o Cargo Loading and Securement.
- Shipper is responsible for ensuring that Goods are properly and safely packaged and loaded. If Carrier is not allowed on the dock during loading, Shipper is responsible for ensuring that Goods are supported, blocked, braced, and secured. If Shipper is loading the Goods into the motor vehicle, Shipper must inspect the vehicle or other transportation equipment provided by the Carrier, to ensure it meets the requirements specified in the Written Instructions and is in an appropriate sanitary condition for transporting the Goods.
- Shipper must reject any equipment that is not in apparent suitable condition to protect and preserve the Goods during transportation. Vehicles and other transportation equipment used to transport the Goods will be deemed acceptable to Shipper upon loading.
3. NEVERLAND’S RESPONSIBILITIES.
o Neverland’s sole responsibility, with respect to selection and retention of Carriers, is to make reasonable efforts to place Shipper’s loads with responsible Carriers. However, Neverland makes no express or implied warranties or guarantees concerning delivery time or the locating of a Carrier to provide the transportation services requested by Shipper. Neverland will select Carriers, using criteria no less stringent than the following:
- Verifying the Carrier’s operating authority;
- Verifying the Carrier’s insurance coverage, with coverage not less than:
1. $1,000,000 per occurrence for Commercial Auto Liability;
2. $100,000 per occurrence for Motor Truck Cargo Liability;
o Neverland will require by written contract, that each Carrier providing transportation services agrees:
- That it is and shall remain duly and legally licensed under applicable state, providential, and federal law, to provide transportation services;
- That it does not have a “conditional” or an “unsatisfactory” safety rating issued by the United States Department of Transportation or any state or provincial authority with jurisdiction over its operations, and that it will comply with all applicable federal, state, provincial laws;
- That it is performing services pursuant to a written contract; and,
- That it will obtain a receipt showing the kind and quantity of goods delivered to the consignee of each shipment at the destination.
4. INCIDENTAL, CONSEQUENTIAL, AND OTHER INDIRECT DAMAGES. Neither Neverland nor Carriers shall be liable and each hereby disclaims responsibility, for any indirect, incidental, special, punitive, consequential, or multiplied damages, or other indirect costs, lost profits, chargebacks, fees, charges, or delays of any kind, whether or not foreseeable or disclosed including, but not limited to, lost profits or damages due to business interruption or shut down. Additionally, no breach of these Terms and Conditions, whether material or immaterial, or material deviation will extend Neverland’s or Carriers’ liability beyond the limitations specified herein.
5. RECEIPTS AND BILLS OF LADING. Shipper’s insertion of Neverland’s name on the bill of lading will be for Shipper’s convenience only and will not change Neverland’s status as a property broker. The terms and conditions of any freight documentation used by Shipper or Carrier will not supplement, alter, or modify these Terms and Conditions.
6. PAYMENT. All charges are payable in US Dollars and are due and payable thirty (30) days from the date of delivery (net-30) or within thirty (30) days after a reasonable time for delivery has elapsed without offset or deduction. Past due invoices shall be subject to an additional charge at the rate of 1½% per month of the average outstanding balance due. All funds received by Neverland will be applied to the oldest (based on pick-up date) invoiced BOL outstanding. Overpayments do not accrue interest. In the event past due invoices are given to an attorney or collection agency for collection, Customer agrees to pay, in addition to the account balance, all interest payments, and collection costs including reasonable attorney's fees.
7. CREDIT APPROVAL. Payment terms and credit limits are subject to credit approval, which shall be determined from time to time, in the sole and absolute discretion of Neverland. The Customer grants Neverland the right to perform such credit and background searches as Neverland deems necessary. When paying by credit card or electronic funds, the Customer agrees it will be responsible for all charges due and owing, including any adjustments, on account of such Customer's shipment. The Customer authorizes Neverland to charge the Customer's credit card or bank account for any charges. Where allowed by state law, the Customer’s credit card payments are subject to a surcharge of up to 3%, which will not be greater than Neverland’s cost of acceptance.
8. DETERMINATION OF CHARGES. The Customer shall be liable for all charges payable on account of such Customer's shipment. Such charges may include transportation, fuel and other applicable accessorial charges, any charges made by the carrier(s) after the shipment, and all duties, customs assessments, governmental penalties, fines and taxes. Neverland reserves the right to amend or adjust charges and to re-invoice the Customer in the following events: (i) if the original quoted amount was based upon incorrect information provided by the Customer; or (ii) if additional services by the carrier were required; or (iii) if the Customer authorized the carrier to perform the pick-up, transportation and delivery functions other than contemplated by the BOL. Any dispute by customer of any invoice issued by Neverland shall be made in writing, specifically indicating the nature of the dispute and made within 30 days from the date of the invoice. In the event Neverland does not receive timely written notice of the dispute, the charges will be conclusively presumed to be valid.
9. LIEN. Neverland shall have a lien on the shipment for all sums due it relating to this shipment or any other amounts owed by Customer. Customer authorizes Neverland to advise third parties of asserted liens and to hold possession of any shipment against which a lien is asserted.
10. CLAIMS.
o Cargo Claims. Neverland is acting as a property broker, not a motor carrier or freight forwarder, and has no liability for loss, damage and/or delay to Goods except to the extent such claims are caused by Neverland’s negligent acts or omissions, in which case, Neverland’s liability shall be limited in accordance with subparagraph (C) below. Shipper is responsible for filing a claim with Neverland, alleging Neverland’s liability for cargo loss and damage within six (6) months of the date of delivery of the Goods (or, if none, within six (6) months of the date the Goods should have been delivered). Failure to do so will result in an absolute bar to any such claim and will relieve Neverland of any and all liability with respect thereto. Neverland shall require Carrier to agree to assume the liability of a motor carrier (i.e. “Carmack Amendment” liability) for loss, damage and/or delay to the Goods while in transit, subject to a maximum liability of $100,000 per shipment, unless otherwise agreed to in writing between the Parties. Shipper acknowledges that liability is limited in consideration of a lower rate than would otherwise be applicable and that Shipper has the option to request a higher valuation of liability at the time of booking. Neverland may assist Shipper in the filing and/or processing of claims with Carrier, if Shipper submits claims for cargo loss, damage and/or delay, fully supported by all relevant documentation, including but not limited to the signed delivery receipt, with Neverland (which Neverland will forward such cargo claim to the Carrier) within nine (9) months from the delivery date or, in the event of non-delivery, the scheduled delivery date. Shipper must file any civil action in a court of law within two (2) years from the date that any part of the claim is disallowed. Shipper acknowledges and agrees that the sole liability of Neverland, with respect to loss, damage or delay to cargo, shall be as set forth in this provision and Shipper warrants and represents that if it is not the owner of such cargo, Shipper holds authority from such owner to bind the owner to the provisions of these Terms and Conditions.
o All Other Claims. The Parties shall notify each other of all known material details of any claims in writing within 60 days of receiving notice of any claims other than cargo loss or damage claims and shall update each other promptly thereafter as more information becomes available. Civil actions must be commenced within 2 years from the date either Party provides written notice to the other Party of such a claim. Neverland agrees to notify Shipper of any accident or other event of which Neverland is apprised and which prevents the Carrier from making a timely or safe delivery.
o Limit of Liability. Neverland’s aggregate liability to Shipper, or any third party, for all claims, losses, and damages related to the services provided pursuant to these Terms and Conditions, and any loss or damage to Goods for which shipment is arranged by Neverland, whether based on an action in contract, equity, negligence, tort, statute, or other theory, will not exceed an amount equal to the total charges specifically charged by Neverland for the service or shipment giving rise to such claims or damages. Neverland’s services are provided “as is” and “as available,” without warranties of any kind, either express or implied, including, but not limited to warranties of fitness for a particular purpose. Neverland is not liable for the consequences of identify theft or fraudulent conduct of third parties, including utilizing the services of entities representing themselves to be Carriers or representatives thereof.
o Trailer Seals. Unless otherwise agreed by Neverland, Shipper is responsible for applying the seal to any trailer tendered for services. If the seal originally applied to the trailer is intact upon delivery, neither Neverland nor the Carrier will be liable for shortage or theft unless there is physical evidence of unauthorized entry into the trailer while it was in the possession of the Carrier and proof of actual damage or loss of Goods. Shortage or theft claims must be supported by seal records and actual loading and unloading records. Additionally, neither Neverland nor the Carrier will be liable for shortage or theft if the seal is broken: (1) at the direction and under the supervision of a Governmental Authority and is resealed after inspection by such Governmental Authority; or, (2) because it becomes reasonably necessary to do so to inspect, reposition, or protect the cargo or the trailer or to comply with applicable laws or regulations. In both instances, Neverland will request the Carrier to document the breaking of the original seal and application of a new seal in such circumstances. In the absence of any other evidence, a missing, unreadable, or broken seal will not create a presumption of loss to or contamination of the Goods, nor otherwise be grounds for rejection of a shipment or filing of a claim for cargo loss and damage without proof of actual loss or damage. The consignee may not refuse delivery of a shipment, even for food grade loads, due to broken, unreadable, or missing seals, unless there is direct physical evidence of product tampering or contamination beyond the broken, unreadable, or missing seal. Contamination claims must be supported by appropriate quality inspections outlining the full actual loss.
o Mitigating Damages. None of the provisions in these Terms and Conditions in any way limits Shipper’s obligation to mitigate damages, including by salvaging all portions of a shipment for which there is a secondary market.
11. INSURANCE.
o Neverland agrees, at its own expense, at all times during the term of these Terms and Conditions, to maintain all insurance required by law for interstate property brokers.
o Shipper is responsible for maintaining property insurance covering the Goods, both for the Goods and in transit, including loading and unloading.
o Neverland may consult an insurance broker to arrange insurance appropriate to Shipper’s specific needs. Upon request by the Shipper, Neverland may offer, for an additional cost and through its designated insurance carrier or insurance broker, to arrange for shipment-specific cargo policies to be issued in Shipper’s name. Following the issuance of any such policy through their insurance underwriter, Neverland will have no further duty regarding cargo insurance and no liability for loss of, delay of, or damage to the Goods during transport or storage, whether covered by insurance on the Goods or not, and whether such loss, delay or damage has been caused or contributed to by its negligence or breach of these Terms and Conditions, or otherwise. Any coverage on the Goods will be subject to the terms and conditions of the specific policy or policies procured. Neverland is not liable if Shipper for any reason whatsoever, fails to recover a loss, in whole or in part, from the insurer under any applicable policy, even though the premium charged by the insurer may be different from what Neverland charges Shipper. Any difference in charges between actual premium and premium stated on the invoice is a reasonable administrative charge for the cost incurred by Neverland for arranging such shipment-specific insurance for and on behalf of Shipper. Shipper acknowledges and agrees that Neverland’s role is limited to facilitating placement of insurance coverage with entities licensed to sell or broker cargo insurance, and that Neverland is not in the business of selling insurance or insuring risk.
12. DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, NEVERLAND MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH REGARD TO SHIPMENTS, WAREHOUSED GOODS, ITEMS IN TRANSIT OR DELIVERIES OR WITH REGARD TO THE INFORMATION PROVIDED ON THE WEBSITE OR SERVICES RELATED TO TRANSACTIONS CONDUCTED ON THIS WEBSITE. NEVERLAND CANNOT GUARANTEE DELIVERY BY ANY SPECIFIC TIME OR DATE. IN NO EVENT, SHALL NEVERLAND BE LIABLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES RELATING TO LOSS OF PROFITS OR INCOME, WHETHER OR NOT SUCH DAMAGES WERE REASONABLY FORESEEABLE OR MADE KNOWN TO NEVERLAND.
13. INDEMNIFICATION. Shipper must defend, indemnify, and hold Neverland, Neverland’s employees and agents harmless from and against, and shall pay and reimburse for, any and all claims, losses, damages, liabilities, fines, judgments, penalties and amounts (including reasonable attorney fees) arising from or related to: (i) Shipper’s or Shipper’s employees’ or agents’ negligence or intentional misconduct; (ii) Shipper’s breach of these Terms and Conditions; (iii) Shipper’s or Shipper’s employees’ or agents’ violation of applicable laws, rules, or regulations; (iv) Shipper’s failure to provide, or Neverland’s or the Carrier’s compliance with or reliance on, instructions, directions, or request of Shipper; or (v) claims by Shipper, Shipper’s customers, or any party to a bill of lading seeking to impose liability on Neverland in excess of the liabilities expressly assumed by Neverland herein or in excess of limitations on or exclusions from liability as set forth herein. Shipper must also indemnify Neverland from any attempts to recover from Neverland by Shipper’s insurance carrier. The obligation to defend includes payment of all reasonable costs of defense, including attorney fees, as they accrue. The foregoing notwithstanding, Shipper’s obligation to hold harmless, defend, indemnify, pay and reimburse shall not apply to the extent any claim is caused by the negligence or intentional misconduct of Neverland. Shipper may not enter into any third-party agreements that would, in any manner whatsoever, constitute an admission of fault by Neverland or bind Neverland in any manner, without Neverland’s prior written consent.
14. ASSIGNMENT/MODIFICATIONS OF AGREEMENT. These Terms and Conditions may not be assigned or transferred by Shipper, in whole or in part, for any reason whatsoever without Neverland’s prior written consent, and any such action or conduct in violation of the foregoing will be void and without effect. Neverland expressly reserves the right to assign these Terms and Conditions and to delegate any of its duties and obligations hereunder.
15. SEVERABILITY/SURVIVABILITY. In the event that the operation of any portion of these Terms and Conditions results in a violation of any law, or any provision is determined by a court of competent jurisdiction to be invalid or unenforceable, the Parties agree that such portion or provision shall be severable, and that the remaining provisions of these Terms and Conditions shall continue in full force and effect. The representations and obligations of the Parties shall survive the termination of these Terms and Conditions for any reason.
16. INDEPENDENT CONTRACTOR. It is understood between Neverland and Shipper that Neverland is not an agent for Carrier or Shipper and shall remain at all times an independent contractor. Shipper does not exercise or retain any control or supervision over Neverland, its operations, employees, or Carrier. Neverland does not exercise or retain any control or supervision over Carrier, its operations, employees, or Shipper.
17. NONWAIVER. Failure of either Party to insist upon performance of any of the terms, conditions or provisions of these Terms and Conditions, or to exercise any right or privilege herein, or the waiver of any breach of any of the terms, conditions or provisions of these Terms and Conditions, shall not be construed as thereafter waiving any such terms, conditions, provisions, rights or privileges, but the same shall continue and remain in full force and effect as if no forbearance or waiver had occurred.
18. NOTICES. Excluding service of process, any notices to Neverland must be sent to Neverland, Attn: Member, 2115 E Cedar St, Suite 6, Tempe, AZ 85281 and must be delivered either by certified or registered mail, return receipt requested and postage prepaid, or by overnight courier service, and are deemed given upon receipt by Neverland or Shipper.
19. FORCE MAJEURE. Neither Party shall be liable to the other for failure to perform any of its obligations under these Terms and Conditions during any time in which such performance is prevented by fire, flood, or other natural disaster, war, pandemic, embargo, riot, civil disobedience, or the intervention of any government authority, or any other cause outside of the reasonable control of Shipper or Neverland, provided that the Party so prevented uses its best efforts to perform under these Terms and Conditions and provided further, that such Party provide reasonable notice to the other Party of such inability to perform. Performance requirements are extended by the amount of the delay except for payment obligations.
20. CHOICE OF LAW AND VENUE. All questions concerning the construction, interpretation, validity and enforceability of these Terms and Conditions, whether in a court of law or in arbitration, shall be governed by and construed and enforced in accordance with the federal laws regarding transportation, where applicable, and otherwise by the laws of the State of Arizona, without giving effect to any choice or conflict of law provision or rule that would cause the laws of any other jurisdiction to apply. The Parties agree to the exclusive personal jurisdiction and venue in a federal or state court in Maricopa County, Arizona.
21. ENTIRE AGREEMENT. These Terms and Conditions constitute the entire agreement intended by and between the Parties and supersedes all prior agreements, representations, warranties, statements, promises, information, arrangements, and understandings, whether oral, written, expressed or implied, with respect to the subject matter hereof. No terms and conditions stated in Shipper’s purchase order or in any other Shipper order or tender documentation shall be incorporated into or form any part of this agreement, and all such terms and conditions shall be null and void. Notwithstanding anything to the contrary herein, Neverland reserves the right, at its sole discretion to modify and amend these Terms and Conditions at any time. In the event these Terms and Conditions are modified, the updated Terms and Conditions will be posted on Neverland’s website. The current version shall be applicable at the time of shipment. By booking services with Neverland or tendering shipments to Neverland, Shipper agrees to be bound by these Terms and Conditions at the time of tender.
22. RATES. "Less than Load" Rates ("LTL") rates are based on the calculated density and/or freight class as determined by the National Motor Freight Classification ("NMFC") and are weight based. All displayed transit times are estimates only and do not include day of pickup. LTL pickup dates are not guaranteed. Truckload ("TL") rates are based on Dock Door Pickup/Dock Door Delivery and Shipper Load/Consignee Unload and are mileage based. Additional fees may apply for charges including, Tractor Detention, Trailer Detention, and Driver Assistance. Customer must tender this load to carrier at the agreed upon rate, or pay a "truck ordered, not used" penalty at cost. 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 delays may apply. Van Line rates are based on mileage, weight (actual or density) and commodity/product type. Flatbed rates are based on transport equipment type, mileage and weight. If a shipment includes over- dimensional freight, additional charges and transit days may apply. All displayed transit times are estimates only and do not include day of pickup. Pickup dates are not guaranteed.
23. GUARANTEED SERVICES. Neverland will provide LTL guaranteed services for additional charge, if requested by the Customer. LTL delivery times generally do not begin to run until the day after the pickup of the shipment, except as otherwise noted by the carrier selected. Guaranteed service transit times do not include holiday and/or "no service" days as defined by the individual carrier. The Customer is liable for all charges related to the shipment. In the event of a carrier's failure to comply with the guaranteed service requested, the Customer shall have fourteen (14) days from the actual delivery date of shipment to file a written claim request with Neverland. If Neverland does not timely receive a claim request within fourteen (14) days, the service provided by the LTL carrier will be deemed to have met all guaranteed service standards and the claim request will be considered invalid and denied. In the event of the carrier's failure to comply with the guaranteed service requested and after the carrier has agreed to liability and has paid the amount owed to Customer to Neverland, Neverland will credit the account of Customer with such amount and paid by the carrier. In no event shall Neverland be liable, nor will any account be credited if the Customer does not use Neverland's BOL.
24. ATTORNEYS’ FEES. Should any legal proceeding be commenced between the Parties concerning the terms of this Agreement, or the rights and duties of the Parties, the prevailing party in such proceeding shall be entitled, in addition to such other relief as may be granted, to costs, expenses and reasonable attorney fees.
25. SURETY BOND. Neverland, in its capacity as a broker, shall maintain a surety bond or trust fund agreement, as required by the FMCSA, and shall furnish Shipper with proof upon written request.