These terms and conditions of service (the “Terms and Conditions”) constitute a legally binding contract among the Parties (defined below), and shall apply solely to services provided by Shaker Group, Inc (Shaker) for surface transportation in North America, U.S. air transportation (origin and destination in U.S.) and Auxiliary Services described herein. The Terms and Conditions are subject to change by Shaker upon posting on Shaker’s website from time to time. The most current and controlling version of the Terms and Conditions are published at www.theshakergroup.com. Shaker’s terms and conditions for International Air and Ocean Shipments and warehousing services are provided separately from the Terms and Conditions and are published at www.theshakergroup.com.
(a) “Auxiliary Services” are those services which are performed prior or subsequent to transportation such as local cartage, loading, unloading, crating, uncrating, packing, unpacking and storage which are requested by Customer and arranged by Shaker as an additional service. “Auxiliary Services” shall not include warehousing services which is governed by separate terms and conditions of service.
(b) “Bill of Lading” is the reference to the official shipping document, sometimes completed by Customer or in some cases by the Carrier, Shaker, or other authorized person or entity, accepting the Shipment, authorizing Shaker to carry the Shipment to said destination, and containing pertinent information about the Shipment such as piece count, weight, quantity, and the like; The Bill of Lading may include, but not be limited to, shipping documents directly referred to and titled as a Bill of Lading, and also other shipping documents commonly used in the industry such as Shippers Letter of Instruction, Air Waybill, etc., which duly authorize Shaker to accept the Shipment.
(c) “Bill to Party” is the person or entity to whom the Bill of Lading instructs Shaker to issue the invoice to for the Shipment.
(d) “Carrier” is the person or entity actually performing the carriage of the Shipment with its own means of transport as the performing carrier, and subject to carrier liability as a result of an express or implied undertaking to assume such liability from the contracting carrier.
(e) Consignee” is the person or entity listed as the “ship to” party or to whom the Bill of Lading instructs Shaker to deliver the Shipment.
(f) “Customer” or “Shipper” includes the Person with whom Shaker has contracted to move the Shipment and any Person whom directly benefits from services performed pursuant to the Terms and Conditions.
(g) “Package” or “Packages” are the customary shipping units as listed on the Bill of Lading including, but not limited to, packages, cartons, pallets, tubes, etc.
(h) “Parties” include the Customer, the Consignee, the consignor, Shaker, and any other Person having a present or future interest in the Shipment or any Person acting on behalf of any of the above mentioned parties with respect to a Shipment.
(i) “Person” means any individual, corporation, limited liability company, joint venture, trust, partnership or other entity.
(j) “Shaker” means Shaker Group Inc, Shaker’s employees, officers, directors, agents, subcontractors, carriers and independent contractors performing services pursuant to the Terms and Conditions.
(k) “Shipment” is the total of the Packages and their contents listed and described on the Bill of Lading, or as amended in subsequent written documentation provided to Shaker.
2. AGREEMENT TO TERMS AND CONDITIONS. In tendering a Shipment to Shaker or otherwise engaging the services of Shaker in any other fashion, Customer agrees that the version of the Terms and Conditions in effect at the time the shipment is tendered to Shaker will apply to the Shipment, its transportation and the Auxiliary Services, which no agent or employee of the Parties may alter. To the extent the Terms and Conditions conflict with a Bill of Lading or other shipping document, the Terms and Conditions shall control. If the services provided are for international air, international ocean, or warehousing, then the separate terms and conditions for each respective service shall govern and control. Further, except to the extent the Terms and Conditions conflict with any written agreement between the Parties, the Terms and Conditions shall supersede any alleged or asserted oral agreement, promise, representation, or understanding between the Parties.
3. CUSTOMER’S WARRANTY. Customer warrants that each Package and Shipment is properly classified and completely described on the Bill of Lading or other relevant shipping documentation furnished by Customer, that each Package and Shipment is properly marked and addressed, is packaged properly and adequately to protect the contents in the normal course of transportation for each surface and air transport, and except as otherwise noted on the Bill of Lading, is in good order and condition. Customer also warrants its compliance with all applicable laws, rules, and regulations including, but not limited to, customs laws, import and export laws. Customer shall furnish such information and attach to the Bill of Lading such documents as are necessary to comply with all laws, rules and regulations.
4. QUOTATIONS NOT BINDING. Except as set forth in a written agreement between the Customer and Shaker, quotations as to fees, rates of duty, freight charges, insurance premiums or other charges provided by Shaker to Customer are for informational purposes only and are subject to change without notice. No quotation shall be binding on Shaker unless Shaker agrees in writing to undertake the handling and transportation of the Shipment at a specific rate. Customer understands that quotations are provided to Customer in reliance on the information furnished to Shaker at the time the quotation is provided, and are subject to change based on actual weights, commodity, contents, mode of transportation, dimensions, and volumes tendered by the Customer, as well as due to unforeseen or unanticipated costs, occurrences or events which are beyond the control of Shaker.
5. RATES AND CHARGES. Except as provided in any written agreement between the parties, rates and charges for Shipments will be based on actual or dimensional weight, whichever is greater.
(a) Notice of Claims. A timely notice to Shaker of a claim in accordance with the requirements set forth in this section is a prerequisite to the institution of a suit pursuant to Section 6 (b) of the Terms and Conditions as follows:
(i) Apparent Damage Upon Delivery. If the loss or damage to a Shipment is apparent at the time of delivery, Consignee must immediately note such loss or damage on the delivery receipt or other documentation or platform utilized to sign for delivery of a Shipment (i.e. signature on android application, tablet, truck pro, or other shipping documentation utilized as evidence of goods received by Consignee). Apparent loss or damage shall include, without limitation, shortage in the shipment, damage to the package(s), or possible damage to the contents which is ascertainable without inspection of the contents itself. Consignee may not open package(s) and inspect the contents of the package(s) until Consignee signs for the shipment on the delivery receipt. NOTE: Notations such as “subject to inspection” and “subject to count” are not valid. Failure to note exceptions of actual product loss or damage at the time of delivery on the delivery receipt is prima facie evidence of delivery in good order and condition and shall be an absolute bar to a claim for apparent damage.
(ii) Concealed Damage Upon Delivery. If the loss or damage to a Shipment is not apparent (concealed), Shaker must be given written notice within 14 days from the date of delivery, or in the case of non-delivery, within 14 days from the date on which delivery should have occurred. Notwithstanding the foregoing, in the case of perishables, Shaker must be notified of all claims within 48 hours of delivery. If Customer gives Shaker notice of Customer’s intention to make a concealed loss or damage claim, Shaker shall have the right to inspect the Shipment and all materials used to package or protect the Shipment for transportation at the location where the Shipment was delivered.
(iii) Timeliness of Notice. Unless otherwise provided in an applicable statute, the failure to give timely notice of any loss or damage in accordance with this Section 6 (a) or the failure to permit or arrange inspection as required herein shall constitute an absolute bar to recovery for any claim for loss or damage. Failure to keep all product and packaging of damaged product, unless otherwise instructed in writing by Shaker, may result in non-payment of claim. Further, it is incumbent upon the claimant and all other interested parties to mitigate the damages to the extent that is reasonably possible under the circumstances.
(b) Claims Process.
(i) Time Limit for All Claims. Unless otherwise provided in an applicable statute, all claims for loss, damage, or overcharges must be received in writing by Shaker no later than one hundred and eighty (180) days from the date of delivery for U.S. Air Transportation; and for Surface Transportation, no later than nine (9) months from the date of delivery for damage claims and nine (9) months from the date of shipment for shortage claims, as the case may be. All such claims must include copies of the Bill of Lading, delivery receipt, invoice and any other documents supporting the claim or such claims shall be barred. Further, there shall be no offsetting of claims and any claimed amounts shall not be deducted from transportation charges due to Shaker. Shaker will not process or consider any claim until all transportation charges have been paid in full.
(ii) Salvage Right. In the event Shaker pays a claim, Shaker shall be entitled to possession of the portion of the Shipment for which the claim was made and shall be under no obligation to return any portion of the Shipment to Customer or other Parties. Shaker shall be entitled to salvage any such portion of the Shipment, and shall be under no obligation to return any salvaged proceeds to Customer or other Parties. The failure to provide the salvage shall be a bar to recovery of such claim. Finally, if Shaker pays a claim and Customer or a third party later salvages that portion of the Shipment for which the claim was made, Shaker shall be entitled to a refund, up to the amount of the claim paid by Shaker.
(iii) Lawsuits Arising From Denied Claims. Unless otherwise provided in an applicable statute, suit to recover for any loss or damage claims must be instituted within two (2) years from the date the claim has been denied in writing, in whole or in part, by Shaker, and must be filed in accordance with Section 10 herein.
(iv) Address for Notice and Claims. ALL COMMUNICATIONS REGARDING A CLAIM, INCLUDING DISPUTED DEBTS AND INSTRUMENTS TENDERED AS FULL SATISFACTION OF A DEBT ARE TO BE SENT IN WRITING TO SHAKER GROUP INC, 862 ALBANY SHAKER RD, LATHAM, NY, 12110 ATTN: CLAIMS MANAGER.
7. PICK UP AND DELIVERY TIMES. Due to the inherent nature of the transportation business, Shaker does not guarantee pick up, transportation, or delivery by a stipulated time.
8. LIMITATION OF LIABILITY.
(a) Force Majeure. Shaker shall not be liable for loss, damage, delay or monetary losses of any type caused by: acts of God; public authorities acting with actual or apparent authority; strikes; labor disputes; cyber attacks; weather; mechanical failures; aircraft failures; civil commotions; acts or omissions of customs or quarantine officials; acts of carriers related to security; the nature of the freight or any defects thereof; inherent vice of the goods; public enemies; hazards incident to a state of war; and acts of terrorism.
(b) Exclusions. In no event shall Shaker be liable for any loss or damage caused by:
(i) Acts, defaults or omissions of the Customer or Consignee, including but not limited to, inadequate or improper packaging, marking, addressing, or providing incomplete/inaccurate shipping instructions, documents or information; or from Shaker’s compliance with instructions received by Customer or from any other person authorized to give them;
(ii) The handling, loading, stowage, or unloading when not performed by Shaker;
(iii) For Return Shipments, Shaker shall not be liable for any claims for shipments which have been previously unpackaged by Consignee or Customer, are no longer in their original sealed condition, or where Shaker did not deliver the original shipment to Consignee; or
(iv) The selection of Carriers for Shipments or service providers for Auxiliary Services.
(c) Monetary Maximum Liability. The monetary maximum liabilities set forth herein shall be imposed in all instances, unless the Customer has declared a higher value for the Shipment and paid an excess valuation charge and then only to such declared higher value, subject to Section 19. In the event that Shaker is deemed liable for loss or damage in accordance with the Terms and Conditions, such claims shall be subject to the following maximum monetary recovery(s):
(i) Surface Shipments in the U.S.. Shaker’s liability is limited to the greater of USD$50.00 per Shipment or USD$0.50 per pound, per Package whichever is greater.
(ii) Surface Shipments between the U.S. and Mexico. Shaker’s liability is limited to a maximum of USD$50.00 per Shipment or USD$0.50 per pound, per Package, whichever is greater. In the event that this limit of liability is deemed unenforceable, Customer and Shipper acknowledge that Mexican law limits the liability of a motor carrier to the equivalent of fifteen (15) times the minimum daily wage then in effect in the Federal District of Mexico, per metric ton or the proportional part thereof.
(iii) Surface Shipments between the U.S. and Canada. Shaker’s liability is limited to a maximum of $2.00 Canadian per pound computed on the total weight of the lost or damaged goods by the Shipper.
(d) Average Declared Value. For purposes of calculating Shaker’s monetary maximum of liability set forth in Section 8(c) herein, unless each Package in a larger Shipment has a separate declared value stated on the Bill of Lading at the time of shipment and Customer has paid an excess valuation charge to the extent of such declared value, Shaker shall be liable, subject to applicable Terms and Conditions in effect at the time of the Shipment, for the average declared value of the Shipment multiplied by the weight of the Packages (or pieces) adversely affected. The average declared value of the Shipment shall be determined by dividing the total declared value of the Shipment by the total weight of the Shipment. The declared value amount for the entire Shipment must be inserted on the face of the Bill of Lading for this provision to apply.
(e) No Consequential Damages. IN NO EVENT SHALL SHAKER BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS OR LOSS OF MARKET, LOSS OF INCOME, DAMAGES ARISING FROM LOSS, ATTORNEYS’ FEES OR PUNITIVE DAMAGES, WRONG DELIVERY, OR DAMAGE TO PROPERTY, DELAYED DELIVERY OR FAILURE TO ATTEMPT DELIVERY, WHETHER OR NOT SHAKER HAD KNOWLEDGE THAT SUCH DAMAGES OR LOSSES MIGHT OCCUR.
(f) Bill of Lading. Shaker reserves the right to rely on the Bill of Lading, as defined herein, as Customer’s letter of instruction for all other modes of transportation including LTL or FTL truck brokerage (U.S. and international), rail, and U.S. air.
(g) THIRD PARTIES AND ROUTES. Shaker is authorized to select and engage carriers, truckmen, custom brokers, agents, warehousemen and other third parties, as required, and the Shipments may be entrusted to such agents subject to all limitations of liability set forth in the Terms and Conditions. Every Shaker party, including without limitation, every employee, agent carrier, or subcontractor of Shaker shall be entitled to the same rights, exemptions and/or limitations of liability, defenses and immunities to which Shaker is entitled. It is expressly intended that all Shaker parties and subcontractors (and subcontractors’ subcontractors) shall have the benefit of the Terms and Conditions. Finally, unless express instructions are agreed upon in a signed writing between the Parties, Shaker has complete discretion to select the means, route and procedure to be followed in the handling, transportation and delivery of the Shipment.
9. LTL SHIPMENTS. Notwithstanding anything herein to the contrary, all shipments handled via Less Than a Truck Load (“LTL”) truck brokerage are arranged by Shaker acting as a broker, and not as a freight forwarder. As such, Shaker accepts no cargo liability, and all reports correspondence, claim filing and settlement issues are to be pursued with the carrier whom the LTL shipment has been brokered, and are subject to the terms and conditions of that carrier.
10. GOVERNING LAW, VENUE, JURISDICTION. The Terms and Conditions, and any action or contract to which they apply, shall be governed and interpreted by the laws of the State of New York, U.S., without reference to its choice of law provisions. All suits to recover a claim must be exclusively submitted to the jurisdiction of a state or federal court located in Albany County, New York to which the Parties irrevocably consent to personal jurisdiction and waive all objections thereto. Where claims are not filed or suits are not instituted in accordance with the foregoing provisions, such claims shall be deemed waived and will not be paid.
11. SEVERABILITY. If any provision of the Terms and Conditions may be construed in two ways, one of which would render the provision illegal or otherwise voidable or unenforceable and the other which would render it valid and enforceable, such provision shall have the meaning which renders it valid and enforceable. The language of all provisions of the Terms and Conditions shall be construed according to fair meaning and not strictly construed against any party. The provisions of the Terms and Conditions are severable and shall be interpreted and enforced as if all completely invalid or unenforceable provisions are not contained herein, and partially valid and enforceable provisions shall be enforced to the extent that they are valid and enforceable.
12. PROHIBITED CARGO. There are certain types of articles that are either on the list of prohibited items which will never be accepted for transport by Shaker, or which will not be accepted for carriage without the prior knowledge and written approval from Shaker. The following is a list of such prohibited cargo(s) any Shipment prohibited by law; firearms; certain types of dangerous goods; original works of art, antiques; bonds; coins of any kind; currency; currency equivalents; furs; fur clothing; gems or stones (cut or uncut); industrial diamonds; gold or silver; coined concentrates; jewelry (other than costume jewelry); pearls; precious metals; securities (negotiable); time sensitive written material (e.g. bids, contract proposals, etc. when the declared value exceeds USD$0.50 per pound); one-of-a-kind articles or models; prototypes; valuable rugs (i.e. Oriental rugs, Persian rugs) and prints or lithographs and household goods and/or personal effects when the total declared value of the Shipment exceeds USD$500 or when the declared value exceeds USD$0.50 per pound, per piece. Shaker shall not be liable for any loss, damage, delay, liabilities, penalties or fines resulting from the transportation of any of the foregoing articles, however described or mis-described in the Bill of Lading (including unacceptable descriptions such as “FAK”), and no employee or agent of Shaker has any authority to waive the limitations herein contained. Shaker retains the right to refuse any such Shipment prior to acceptance. In the event Shaker discovers, after acceptance of a Shipment, that the Shipment contains any of the herein mentioned articles, it reserves the right to refuse the Shipment, or if already in transit, to refuse to deliver the Shipment to the Consignee. Customer agrees to pay all expenses, freight charges, fines and penalties for said Shipment. Customer further agrees to indemnify and hold harmless Shaker from any and all loss, damage, delay, liabilities, penalties or fines arising out of or related in any way to Shipments containing any of the items described in this Section 11.
13. COMPLIANCE WITH LAWS. Shaker conducts its business ethically and in compliance with all laws in the countries where Shaker does business. Shipments are subject to all applicable international, federal, state and local laws and regulations, including all anti-corruption laws such as the U.S. Foreign Corrupt Practices Act of 1977, as amended and the UK Bribery Act, as amended (collectively, the “Laws”). Customer shall not send any Shipment in any manner that violates any Law or is in violation of Shaker’s Anti-Corruption and Foreign Corrupt Practices Act Policy which can be found at: www.theshakergroup.com Exporting Shipments to companies, organizations, or persons listed on the Specially Designated Nationals List, the U.S Debarred List, the U.S. Entity List, and other governmental lists are prohibited, including those on other lists of denied parties. Customer agrees not to use Shaker’s services to transport cargo in any manner that violates any embargoes of countries or persons, including U.S. embargoes against Burma, Cuba, Iran, Libya, North Korea, Sudan and Syria.
14. C.O.D. SHIPMENTS. Collect on Delivery (C.O.D.) service is provided under the following conditions: (a) Customer must identify the shipment as a C.O.D. Shipment by entering the amount to be collected on the front of the Bill of Lading or other shipping document, (b) Customer must specify the type of payment to be received (e.g. check, money order or cashier’s check) on the front of the Bill of Lading or other shipping document, and (c) Shaker and Customer agree that Shaker does not guarantee nor verify that a check, money order, cashier’s check or other such financial instrument is valid or negotiable. All payments are collected at Customer’s risk. Unless otherwise stated on the Bill of Lading or other shipping document, the C.O.D. amount of the Shipment shall be deemed to be the declared value of the Shipment. A declared value amount in excess of USD$0.50 per pound, per Package, shall be subject to an excess valuation charge. Unless prior arrangements are made, payment of freight charges and/or C.O.D. amounts must be remitted by cashier’s check, certified check, money order, or Consignee’s check as authorized by the Customer in writing.
15. INSPECTION & SECURITY. All Shipments are subject to inspection by Shaker, including by Shaker’s performing carriers and by any duly authorized government entities, including but not limited to the U.S. Transportation Security Administration, U.S. Customs and Border Protection, and like entities. Notwithstanding the foregoing right to inspect shipments, Shaker is not obligated to perform such inspection except as mandated by law. Further, Shaker reserves the right to unilaterally reject any Shipment that it deems unfit for transport after inspection.
16. INDEMNITY. Customer, Consignor, and Consignee shall be jointly and severally liable for all unpaid charges payable on account of the Shipment pursuant to the Terms and Conditions and shall pay or indemnify Shaker for claims, fines, penalties, damages, costs (storage, handling, re-consignment, return of freight to shipper, etc.) or other sums which may be incurred by Shaker by reason of any violation of the Terms and Conditions, any other default of Customer, Consignor, Consignee or claims arising in connection with or related to the selection of service providers for Auxiliary Services.
17. GENERAL LIEN. Shaker or its agents, as herein defined, shall have a general lien on any and all property (and documents relating thereto) within its care, custody or control for all charges and expenses advanced by Shaker, including any charges due for prior unrelated shipments, invoices or services performed by Shaker. Shaker may refuse to surrender possession of the goods until all such charges are paid in full. If such amounts remain unpaid for 30 days after Shaker’s demand for payment, Shaker may sell such property at public auction or private sale. The proceeds of such sale shall be applied to the amounts owed to Shaker, and any surplus shall be paid to the Customer. Customer shall remain responsible for any deficiency.
18. PAYMENT TERMS. Customer shall pay Shaker within 21 days of the invoice date unless otherwise agreed by the Parties in writing. All invoices not paid within 21 days of invoice date will be subject to a late fee charge of 1.5% per month, or the maximum rate then allowable pursuant to applicable law.
19. COLLECTION EXPENSES. If it becomes necessary for Shaker to utilize a collection agency and/or attorneys to collect any unpaid amount owed, then the Customer shall be obligated to pay the actual collection agency fees, attorneys’ fees, litigation fees and other expenses, including but not limited to court costs, incurred by Shaker, regardless of whether litigation is actually filed.
20. INSURANCE. Insurance is available to Customer upon request only. The amount and type of available coverage is based on Shaker’s open cargo insurance policy in effect on the date the Shipment is tendered to Shaker. In order to obtain coverage under that policy, Customer must properly complete the “Insurance Option” section on the face of the Bill of Lading and pay an additional charge. Failure to insert a full value insurance amount shall reduce any insurance payment proportionately. NOTWITHSTANDING ANYTHING IN THE TERMS AND CONDITIONS TO THE CONTRARY, INSURANCE PROCEEDS SHALL BE LIMITED TO THE LESSER OF (A) THE INSURED VALUE OF THE GOOD(S) AND (B) THE SUM OF THE ACTUAL COST TO THE CUSTOMER OF THE DAMAGED OR LOST GOOD(S) SHIPPED AND FREIGHT CHARGES. Insurance coverage and/or special insuring conditions are subject to the insurance option and related coverage and will be limited thereby.
21. CUSTOMER USE OF SHAKER SOFTWARE. Customer shall have a limited, personal, revocable, non-transferable and non-exclusive right to use Shaker Software as set forth in this Section 20. Shaker shall make the Shaker Software available to Customer for the sole purpose of allowing Customer to track and obtain information about Shipments during transit and for a reasonable period of time after delivery has been made, and for no other purpose Customer agrees to only use the Shaker Software for the limited scope of use and purpose described herein. Customer further agrees to keep all passwords to the Shaker Software confidential and to limit its disclosure only to those employees with a need-to-know and who are bound by written confidentiality obligations for such information. Customer will not provide its login or password to any third party and will not alter or remove any copyright notice or other proprietary rights that may appear in the Shaker Software. Customer will not reproduce, copy, modify, translate, enhance, decompile, disassemble, reverse engineer, or create derivative works of the Shaker Software and will not challenge Shaker’s rights in the Shaker Software. The Shaker Software shall at all times remain the sole and exclusive property of Shaker. Shaker reserves the right to terminate Customer’s password and its access to the Shaker Software, at its convenience without notice or cause. Shaker makes no warranties, whether express, implied, or statutory regarding or relating to the Shaker Software. SHAKER HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND WITH RESPECT TO THE SHAKER SOFTWARE INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR TITLE. Shaker will not be liable for any indirect, direct, special or consequential losses or damages, including but not limited to, loss of business or lost profits. Customer hereby releases, forever discharges and hold Shaker harmless from and against all claims, actions, suit, proceedings, obligations, liabilities, losses, costs or expenses resulting from, related to or in connection with Customer’s access to or usage of Shaker Software or breach of this Section 20. As used herein, the term “Shaker Software” means Shaker’s shipping information system, including without limitation Prophesy, Cargowise and all translations (including translation into any other computer languages), conversions, partitions, corrections, additions, extensions, enhancements, upgrades, improvements, modifications, compilations, abridgements, or other forms in which any portion thereof may be recasted, transformed and/or adapted.
22. LOGO/TRADEMARK. Customer shall not use Shaker’s name, logo, trademarks or trade names in publicity releases, promotional material, customer lists, advertising, marketing or business generating efforts, whether written or oral, without obtaining Shaker’s prior written consent, which consent shall be given at Shaker’s sole discretion.