ACV TRANSPORTATION, LLC BROKER/SHIPPER TERMS OF SERVICE
THESE TERMS OF SERVICE OF PROPERTY BROKER SERVICE (“TOS”) APPLY TO THE ARRANGEMENT BY ACV TRANSPORTATION LLC (“BROKER”) OF FOR-HIRE MOTOR CARRIER SERVICE OF ONE OR MORE MOTOR VEHICLES UNLESS SUCH SERVICE IS SPECIFICALLY CONTEMPLATED BY, AND ADDRESSED IN, A CONTRACT SIGNED BY AN OFFICER OF BROKER, IN WHICH CASE THE TERMS OF SUCH AGREEMENT GOVERN TO THE EXTENT OF A CONFLICT WITH THESE TOS. THESE TOS MAY BE AMENDED BY BROKER FROM TIME TO TIME. FOR PURPOSES OF AND SUBJECT TO THESE TOS, “SHIPPER” SHALL MEAN THE PARTY REQUESTING THAT BROKER ARRANGE FOR TRANSPORTATION GOVERNED BY THESE TOS, AND ALSO INCLUDING ANY CONSIGNOR, CONSIGNEE, OR ANY OTHER ENTITY CLAIMING AN INTEREST IN THE VEHICLE(S).
THESE TOS SET FORTH THE LEGALLY BINDING TERMS GOVERNING FOR-HIRE MOTOR CARRIER SERVICE ARRANGED BY BROKER. BY ARRANGING FOR SERVICE VIA THE WEBSITE WWW.ACVAUCTIONS.COM (THE “WEBSITE”) OR MOBILE APPLICATION ACV AUCTIONS (THE “MOBILE APP”), EACH OF WHICH IS OPERATED BY BROKER’S AFFILIATE, ACV AUCTIONS, INC., OR BY OTHERWISE REQUESTING OR RECEIVING THE BENEFIT OF FOR-HIRE MOTOR CARRIER SERVICES ARRANGED BY BROKER, SHIPPER ACCEPTS THESE TOS. BY REQUESTING SUCH SERVICE, YOU INDIVIDUALLY, REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THIS AGREEMENT, ON BEHALF OF YOURSELF OR THE COMPANY, ENTITY OR ORGANIZATION THAT YOU REPRESENT. ANY TERMS AND CONDITIONS ON ANY TRANSACTIONAL OR SHIPMENT-SPECIFIC DOCUMENT, INCLUDING, BUT NOT LIMITED TO, ANY BILL OF LADING OR SIMILAR DOCUMENTATION EXCHANGED BETWEEN THE PARTIES OTHER THAN THESE TOS SHALL NOT APPLY TO ANY SERVICE PERFORMED UNDER THIS AGREEMENT AND SHALL NOT BE BINDING ON OR APPLICABLE TO BROKER. YOU MAY NOT ACCESS OR USE THE SERVICE OR ACCEPT THIS AGREEMENT IF YOU ARE NOT AT LEAST 18 YEARS OLD.
- SERVICES. The “Service” consists of BROKER arranging, but not actually performing, for-hire motor carrier transportation of the vehicle(s) identified in the Auction ID and associated VIN presented to SHIPPER along with the transportation quote via the Website or Mobile App (the “Vehicle”). SHIPPER understands and agrees that BROKER functions as an independent entity, and not as a motor carrier, in arranging for transportation for compensation, and that the actual transportation of shipments shall be performed by third-party motor carriers (“Servicing Motor Carriers”). The origin and destination locations for the transportation of the Vehicle shall be the pick-up and drop-off locations identified in the transportation quote provided to SHIPPER via the Website or Mobile App.
- BROKER’S COMPLIANCE WITH LAW. BROKER represents and warrants that it is duly and legally qualified to operate as a property BROKER and to provide the transportation services contemplated herein. BROKER agrees to comply with all federal, state and local laws regarding the provision of such brokerage services. The Parties understand and agree that BROKER functions as an independent entity, and not as a carrier, in selling, negotiating, providing and arranging for transportation for compensation, and that the actual transportation of shipments tendered to BROKER shall be performed by third-party motor carriers (“Servicing Motor Carriers”).
PAYMENT AND CHARGES.
- With respect to SHIPPER’s request for BROKER to arrange for transportation of the Vehicle, BROKER will provide to SHIPPER via the Website or Mobile App a quote which shall include the amount to be paid to the Servicing Motor Carrier to perform the actual transportation of the Vehicle and Broker’s charge for providing the Service (together, the “Broker Charges”), which Broker Charges may be confirmed in a follow-up writing provided by BROKER to SHIPPER. By checking “YES” to or otherwise accepting the quoted Broker Charges on the Website or Mobile App, SHIPPER is thereby accepting and agreeing to pay the quoted BROKER Charges.
- SHIPPER agrees to and shall pay via the Website or Mobile App, and at the time payment is due to ACV Auctions, Inc. with respect to the purchase of the Vehicle, the Broker Charges accepted by SHIPPER. The Broker Charges shall be invoiced together with whatever amount SHIPPER owes ACV Auctions, Inc. in connection with SHIPPER’s purchase of the Vehicle through ACV Auctions, Inc., and SHIPPER shall pay the Broker Charges directly to ACV Auctions, Inc.; ACV Auctions, Inc. will in turn remit the Broker Charges to BROKER. The Broker Charges are refundable to SHIPPER until the time that the Services is commenced. SHIPPER shall be liable for any expenses, including attorney fees, BROKER incurs in collecting its rates and charges.
INDEMNIFICATION. The provisions of this section shall not apply to claims for cargo loss, damage or delay.
- BROKER shall indemnify, defend, pay, reimburse, and save SHIPPER, its employees, and agents harmless from and against any and all liability, claims, loss, costs, fines, penalties, expenses (including attorney’s fees), judgments, or demands on account or damage of any kind whatsoever, including but not limited to personal injury, property damage, or any combination thereof, suffered or claimed to have been suffered by any person or persons, arising out of BROKER’s services provided in connection with these TOS to the extent such claim is directly and proximately caused by (i) the negligence or intentional misconduct of BROKER; (ii) BROKER’s or its employees’ violation of applicable laws or regulations; or (iii) BROKER’s or its employees’ or agents’ breach of these TOS. The foregoing notwithstanding, BROKER shall have no liability to SHIPPER under this provision, or otherwise owe any obligation to SHIPPER under this provision, to the extent such liabilities or obligations arise from the negligence or other wrongful conduct of SHIPPER. The total liability of BROKER with respect to any claims or damages arising from or related to services provided pursuant to these TOS will be for the amount charged by BROKER with respect to the services specifically giving rise to such claims or damages.
- SHIPPER shall indemnify, defend, pay, reimburse and save BROKER, its employees, and agents harmless from and against any and all liability, claims, loss, costs, fines, penalties, expenses (including attorney’s fees), judgments, or demands on account or damage of any kind whatsoever, including but not limited to personal injury, property damage, cargo damage, or any combination thereof, suffered or claimed to have been suffered by any person or persons, arising out of SHIPPER’s performance under these TOS to the extent such claim is directly and proximately caused by (i) the negligence or intentional misconduct of SHIPPER; (ii) SHIPPER’s or its employees’ or agents’ violation of applicable laws or regulations; or (iii) SHIPPER’s or its employees’ or agents’ breach of these TOS, except to the extent such liability, claims or loss are the result of the negligence or other wrongful conduct of BROKER.
- In the event that such claims, liabilities, losses, damages, fines, penalties, payments, costs and expenses (including without limitation, reasonable attorney fees) are caused by the joint and concurrent negligence or other fault of the Parties, or the Parties and a third party, the indemnity obligations for such claims, liabilities, losses, damages, fines, penalties, payments, costs, and expenses shall be borne by each Party in proportion to its degree of negligence or other fault.
- BROKER shall also indemnify, defend, and save SHIPPER harmless from and against any and all claims of payment made by Servicing Motor Carriers as long as SHIPPER has made timely payment in accordance with the provisions of these TOS to BROKER of the full amount owing to BROKER for the services underlying the Servicing Motor Carrier’s claim.
- Any indemnified Party shall promptly tender the defense of any claim to the indemnifying Party.
- In no event shall either Party be responsible for any special, consequential, incidental, indirect, punitive or exemplary damages with respect to any matter arising from or related to these TOS or any operations hereunder regardless of whether such Party had notice of the possibility of such damages.
- INDEPENDENT CONTRACTOR. BROKER represents and warrants that it is an independent contractor and that its employees are under BROKER’s exclusive management and control, and that SHIPPER neither exercises nor retains any control over BROKER, its operations or employees in any manner whatsoever.
- CONTRACT CARRIERS. BROKER shall make reasonable efforts to place SHIPPER’s vehicle(s) with responsible Servicing Motor Carriers authorized to perform the services required by SHIPPER for the purposes of transporting the vehicle(s) with reasonable dispatch under the direction of SHIPPER. In no event will BROKER tender any vehicle(s) of SHIPPER to a Servicing Motor Carrier holding an “unsatisfactory” safety rating. BROKER also agrees to utilize only Servicing Motor Carriers that possess all insurance coverages required by applicable law. However, the Parties understand and agree that BROKER makes no express or implied warranties or guarantees concerning delivery time or the locating of a Servicing Motor Carrier to provide the transportation services requested by SHIPPER. Moreover, SHIPPER acknowledges and agrees that such Servicing Motor Carriers might limit SHIPPER’s recovery for claims for cargo loss, damage or delay.
- BROKER INSURANCE. BROKER shall comply with all insurance and bonding requirements imposed upon it by law, including its obligation to maintain a surety bond to benefit the SHIPPER.
- CARGO LOSS, DAMAGE, OR SHORTAGE. In the event of a cargo loss, damage or shortage claim, BROKER may facilitate claims filing and processing with the Servicing Motor Carrier if SHIPPER submits to BROKER, within six (6) months of the date of delivery, a written claim, fully supported by all relevant documentation, including but not limited to the signed delivery receipt, listing the nature and cause of the claim for cargo damage. SHIPPER understands and agrees that the underlying Servicing Motor Carrier may have a limitation of liability in place that limits SHIPPER’s recovery with respect to such claims. BROKER may, in its sole discretion and without liability to SHIPPER, discontinue pursuit of claims with the Servicing Motor Carrier if such claim is not resolved within sixty (60) days of receipt by BROKER. BROKER shall have no liability for cargo loss, damage, or shortage except to the extent such claims are caused directly and proximately by BROKER’s negligent acts or omissions, in which event, BROKER’s liability shall be limited to the amount owed to BROKER by SHIPPER with respect to the services provided by BROKER that relate to the commodities at issue. BROKER shall have no liability for delay in delivery of cargo except to the extent that BROKER’s negligence or intentional misconduct directly and proximately causes an unreasonable delay, which delay results in loss or damage to the cargo. In no event will BROKER or the Servicing Motor Carrier be responsible for any chargebacks or other penalties or assessments imposed by the consignor or consignee with respect to late deliveries. SHIPPER acknowledges and agrees that its sole recourse with respect to cargo loss, damage or shortage shall be pursuant to this provision. SHIPPER further acknowledges and agrees that if SHIPPER is not the owner of such cargo, then SHIPPER is authorized to bind the owner to the provisions set forth herein regarding loss, damage or shortage. With respect to the standard for BROKER negligence with respect to Servicing Motor Carrier’s insurance, BROKER shall be deemed to be negligent only if the Servicing Motor Carrier fails to maintain insurance as required by law.
- SHIPPING DOCUMENTS. Unless otherwise agreed in writing, all shipments tendered shall be accepted on a bill of lading which shall function as a receipt of the vehicle(s) only; the terms and conditions of such bill of lading will not apply to transportation provided pursuant to these TOS. Upon request of SHIPPER, BROKER shall instruct Servicing Motor Carriers to obtain a delivery receipt from the consignee, showing the products delivered, condition of the shipment and the date and time of such delivery. SHIPPER is solely responsible for properly identifying and describing the vehicle(s) to be transported on any shipping documentation, as well as for complying with all laws, rules and regulations regarding tender of vehicle(s) for transportation including, but not limited to, those applicable to shipping papers required with respect to shipments of hazardous materials. SHIPPER acknowledges and agrees that BROKER is under no obligation to arrange for any special handling or other services unless expressly requested in writing by SHIPPER receipt of which is acknowledged in writing by BROKER.
- NOTIFICATION OF ACCIDENTS OR DELAYS. BROKER agrees to notify SHIPPER of any accident or other event of which BROKER is apprised and which prevents the motor carrier from making a timely or safe delivery.
- LEGAL RESTRAINT OR FORCE MAJEURE. In the event performance by one Party is affected by any cause beyond the reasonable control of such Party, including without limitation, fire, labor strife, riot, war, weather conditions, acts of the public enemy, acts of God, acts of terrorism, local or national disruptions to transportation networks or operations, fuel shortages, governmental regulations, or governmental request or requisition for national defense, and provided that the applicable cause is not attributable to the acts or omissions of such Party, and such Party is taking reasonable measures to remove or mitigate the effects of the applicable cause, then the performance of all obligations required herein shall, with the exception of payment of invoices, be suspended during the continuance of such interruption, and such Party shall promptly notify the other Party of such interruption. Such period of suspension shall not in any way invalidate these TOS, but on resumption of operations, any affected performance by such Party shall be resumed. No liability shall be incurred by either Party for damages resulting from such suspensions.
- COMMUNICATIONS. Communications between BROKER and SHIPPER, including, but not limited to, invoicing, payment, and proofs of delivery, will be electronic in a format (BROKER may, in its sole discretion, accept alternative communication methods proposed by SHIPPER). The Parties hereby waive any objection to the authenticity of such electronic communications as long as such communications comply with the Electronic Signatures in Global and National Commerce Act, the Uniform Electronic Transactions Act, or related legislation as applicable.
- BROKER’S RECORDS. To the extent allowable under Applicable Law, SHIPPER hereby waives its right to obtain copies of BROKER’s records as provided for under 49 C.F.R. Part 371. Notwithstanding the foregoing, to the extent that SHIPPER obtains records set forth in 49 C.F.R. § 371.3 by any means whatsoever, SHIPPER agrees to refrain from utilizing such records in negotiating for the provision of services with any third party, including Servicing Motor Carriers. SHIPPER further agrees and understands that all such records comprise BROKER’s confidential information and trade-secrets.
- CONFIDENTIALITY. Neither party may disclose the terms of these TOS to a third party without the written consent of the other party except (i) as required by law or regulation; (ii) disclosure is made to its accountants, tax advisors, attorneys, or any parent, subsidiary or affiliate company; or (3) as is reasonably necessary to the performance of operations hereunder.
- ASSIGNMENT/MODIFICATION/BENEFIT OF AGREEMENT. This agreement may not be assigned or transferred in whole or in part. These TOS shall be binding upon and inure to the benefit of the Parties hereto.
- SEVERABILITY. In the event that the operation of any portion of these TOS results in a violation of any law, the Parties agree that such portion shall be severable and that the remaining provisions of these TOS shall continue in full force and effect.
- DISPUTE RESOLUTION AND LIMITATION. These TOS shall be deemed to have been drawn in accordance with the statutes and laws of the state of New York and in the event of any disagreement or dispute, the laws of New York shall apply and suit must be brought in the jurisdiction of Buffalo, New York as each party specifically submits to the exclusive personal jurisdiction of such courts for disputes involving these TOS.
- COMPLETE AGREEMENT. These TOS constitute the entire agreement of the Parties with reference to the subject matters herein, and may not be changed, waived, or modified except in writing signed by both Parties.