SAY Cargo Express - Conditions of Contract of Carriage

1. As used in this Contract of Carriage (the “Agreement”) “SAY CARGO EXPRESS, INC” and “SAY CARGO EXPRESS” shall mean SAY CARGO EXPRESS, INC and its authorized agents.  “Shipper” shall mean the party providing freight to SAY CARGO EXPRESS, INC for shipping.  “Consignee” shall mean the party who accepts delivery of freight.  “Payor” shall refer to the party who orders the shipping services from SAY CARGO EXPRESS, INC and who is responsible for payment.  The Payor may be the Shipper, Consignee, or a third party.  SAY CARGO EXPRESS, INC, Shipper, Consignee, and Payor are collectively referred to herein as the “Parties.”
2. By executing this Agreement, the Parties hereby agree to all the conditions set forth herein (the “Conditions”).  Further, any third party Payor who orders shipping services from SAY CARGO EXPRESS, INC also expressly consents to the Conditions, and such consent may be evidenced through an electronic confirmation sent by SAY CARGO EXPRESS, INC to Payor. 
3. The Parties certify and represent that the information inserted on the face of this shipping document is accurate and complete. The Parties agree to the rates, rules and classification set forth in SAY CARGO EXPRESS, INC’s currently effective tariff, which is available for inspection and incorporated into this contract by reference.
4. This Agreement contains the entire agreement and understanding between the Parties, and supersedes and replaces all prior negotiations, proposed agreements and written or oral agreements.  Each of the Parties hereto acknowledges that no other Party, nor any agent or attorney of any Party, has made any promise, representation, or warranty whatsoever, expressed or implied, not contained herein, to induce it to execute this Agreement and acknowledges that it has not executed this Agreement in reliance on any such promise, representation or warranty not contained herein.
5. In the event of a conflict between verbal instructions and those spelled out on the front of this document, the latter will take precedence and will be used to determine how the shipment will be handled.
6. Shipper hereby warrants that each package in this shipment is properly and completely described in this document, is properly marked, labeled and addressed, and is packaged adequately to protect the enclosed goods and to insure safe transportation with ordinary handling, and except as noted is in good order and condition and that each package does not violate existing federal or state transportation regulations. For articles shipped in unenclosed containers, SAY CARGO EXPRESS, INC shall not be liable after delivery is completed.
7. At time of delivery the Consignee must note on delivery receipt any exceptions to the shipping containers that would indicate a discrepancy (including, without limitation, shortage in the shipment, damage to the containers, or possible damage to the contents of the container). The Consignee may not inspect the contents of the shipping containers until the Consignee signs for the shipment on the delivery receipt. Such notations as “subject to inspection” and “subject to recount” are not exceptions. A shipment in which delivery is made in exchange for a clear delivery receipt shall be prima facie evidence of having received ordinary care in handling.
8. SAY CARGO EXPRESS, INC shall not be liable in any event for any special, incidental, or consequential damages, including but not limited to loss of profits, interest, utility, income, or loss of market, whether or not SAY CARGO EXPRESS, INC had knowledge that such damages might be incurred.
9. SAY CARGO EXPRESS, INC shall not be liable for any loss, damage, delay, misdelivery, non-delivery or other result not caused by its negligence. SAY CARGO EXPRESS, INC shall not be liable for special or consequential damages, acts of God, strikes, civil commotions, acts of war, weather, aircraft failures, mechanical failures, acts or omission of customs or quarantine officials, the nature of the freight or any defects thereof, public enemies, acts of terrorism or omissions of the Shipper or Consignee for the failure to observe the terms and conditions of this Agreement, including but not limited to improper packaging, marking, incomplete/inaccurate shipping instructions and the rules relating to freight not acceptable for transportation or freight acceptable only under certain conditions as outlined below.
10. Due to the inherent nature of the transportation business, SAY CARGO EXPRESS, INC does not guarantee pick up, transportation, or delivery by a special date or a special time, and shall not be liable for the consequences of failure to do so.
11. If each piece of the shipment’s weight is not specifically identified on the SAY CARGO EXPRESS, INC shipping document at the time of the shipment and is so identified on the delivery receipt as being lost, damaged, destroyed or otherwise adversely affected at the time of delivery, SAY CARGO EXPRESS, INC shall be liable subject to tariff provisions in effect at the time of the shipment for the average weight of the shipment which will be calculated by dividing the total weight of the shipment by the number of pieces in the shipment. The total weight amount must be inserted in the “Weight” box on the face of this shipping document for this provision to apply.
12. All claims for overcharge must be made in writing to SAY CARGO EXPRESS, INC within 30 days from the date of shipment. All other claims (except concealed loss/damage claims) for loss or visible damage must be in writing to SAY CARGO EXPRESS, INC within 30 days from date of delivery of shipment. Claims for concealed damage must be reported in writing to SAY CARGO EXPRESS, INC within 7 days of delivery, of shipment, and all merchandise must be retained in the original shipping container with all packaging materials available for inspection by SAY CARGO EXPRESS, INC at place of delivery for period of 30 days after SAY CARGO EXPRESS, INC has written notice of damage. No claim for loss or damage will be entertained until all transportation charges thereon have been paid. The amount of claims may not be deducted from transportation charges. Legal action to enforce a claim must be brought within one year after claim has been denied in writing by SAY CARGO EXPRESS, INC.
13. Unless otherwise expressly provided in SAY CARGO EXPRESS, INC’s tariffs, and subject to any conditions or restrictions contained therein, the following articles will not be accepted for carriage: any shipment prohibited by law, original works of art, antiques, bond, coins of any kind, currency, currency equivalents, glass, 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 (when declared value exceeds $0.50 per pound), household goods and/or personal effects, one of a kind articles or models, prototypes, valuable rugs (i.e. Oriental Rugs, Persian Rugs) and prints or lithographs when the total declared value of the shipment exceeds $500 or when declared value exceeds $0.50 per pound, per piece, and such other articles provided in SAY CARGO EXPRESS, INC’s tariff. SAY CARGO EXPRESS, INC shall not be liable for any loss, damage, delay, liabilities or penalties resulting from the transportation of any of the foregoing articles, however described or misdescribed in this shipping document, and no employee or agent of SAY CARGO EXPRESS, INC has any authority to accept for transportation such articles or to waive the limitation herein contained.
14. Shipper and Consignee shall hold SAY CARGO EXPRESS, INC and its agents harmless for loss/delay/damage or any monetary losses which are a result of auxiliary services including but not limited to local cartage of unpackaged/uncrated freight, crating, uncrating, packing, and unpacking which are requested by the Shipper or Consignee and arranged by SAY CARGO EXPRESS, INC, as a customer service unless such services are actually performed by SAY CARGO EXPRESS, INC or its agents. Such limitations of liability shall extend to the selection by SAY CARGO EXPRESS, INC of the providers of auxiliary services. Auxiliary services are those which are performed prior or subsequent to transportation and which may be billed directly by the provider of the service or by SAY CARGO EXPRESS, INC. Providers of auxiliary service are contractors for the Shipper and Consignee and are not agents for SAY CARGO EXPRESS, INC. Under no circumstances will the liability of SAY CARGO EXPRESS, INC for any monetary loss which is a result of any auxiliary services performed by SAY CARGO EXPRESS, INC or its agents be greater than the liability contained in this contract.
15. This Agreement is made under and shall be governed by and constructed in accordance with the laws of the State of California.  If any action is filed to enforce or interpret any of the terms or provisions of this Agreement, or otherwise, the Parties agree that the appropriate venue shall be a state or federal court of competent jurisdiction located in the state of California, County of Orange.  If any action at law or in equity, or any motion, is brought between the Parties regarding this Agreement or the services provided hereunder, the prevailing Party shall be entitled to all of its costs in bringing and prosecuting said action or motion, including reasonable attorneys’ fees.
16. For shipments having a declared insurance value over $25,000 SAY CARGO EXPRESS, INC must be given advance notice prior to pickup.
17. SAY CARGO EXPRESS, INC’s liability for loss or damage is limited to $0.50 per pound. This limitation is subject to provisions as published in SAY CARGO EXPRESS, INC’s tariff in effect at the time of this shipment. Declared value is available upon request, in writing, by placing on the front of this shipping document the declared value requested in the “Declared Value” box. The charge for declared value for domestic shipments is $0.75cents for each $100 of value, or fraction thereof, whichever is greater, for general commodities and is subject to change without notice. For “unusual” commodities or “high risk” commodities, higher insurance charges, minimum, and deductibles may apply. SAY CARGO EXPRESS, INC reserves the right to determine which commodities are considered “general commodities” and which are considered “unusual or high-risk commodities.”
18. Declared value coverage is based on the open SAY CARGO EXPRESS, INC insurance policy in effect on the date of the shipment. Failure to properly complete the declared value option box on the face of this shipping document shall void the coverage this option affords. Failure to insert the full value of the shipment shall reduce any insurance payment proportionately.
19. SAY CARGO EXPRESS, INC will assess transportation charges based on the actual or dimensional weight, whichever is greater. Dimensional weight will be based on length times width times depth (in inches) divided by a cubic factor of 194 for domestic air shipments. For ground shipments whose destination is outside of California in the U.S., a factor of 194 shall also apply. A factor of 194 will apply for SAY CARGO EXPRESS, INC California Ground Services. The dimensions as well as the actual weight of a shipment are subject to SAY CARGO EXPRESS, INC’s confirmation of the dimensions and actual weight.
20. Shipments may be diverted to surface transportation if required at SAY CARGO EXPRESS, INC’s sole discretion because of size, to expedite its delivery, or other operational reasons. In any case, air freight charges from origin to destination will apply.
21. Shipper authorizes consent to SAY CARGO EXPRESS, INC to screen all cargo tendered on their behalf, on this shipment.  
22. Collect on Delivery (C.O.D.) service is provided under the following conditions; A) A $20 charge will apply for collection of C.O.D.  B) Shipper must identify the shipment as a C.O.D. shipment by entering the amount to be collected in the “Shipper’s C.O.D.” box on the front of this shipping document,  C) Shipper must specify the type of payment to be received (e.g., company check, or cashier’s check) in the “C.O.D.” box and  D) Shipper agrees that SAY CARGO EXPRESS, INC does not guarantee nor verify that a check, cashier’s checks, or other such financial instrument is valid or negotiable. All payments are collected at Shipper’s risk. It is agreed upon and understood that the C.O.D amount of the shipment is not the declared value for carriage.
23. Unless prior arrangements are made, the acceptance of cash by SAY CARGO EXPRESS, INC and its agents for payment of freight charges and/or C.O.D. amounts is limited to a maximum of $1,000 per shipment and/or per stop.
24. SAY CARGO EXPRESS, INC shall not be liable to collect C.O.D. amounts, failure to collect an instrument, specified or collection of an instrument in the wrong amount. All instruments of payment are collected at Shipper’s risk, including but not limited to dishonor, non-payment, and forgery. It is understood that the C.O.D. fee is for handling only.  C.O.D. checks will be sent via regular mail (United States Postal Service). SAY CARGO EXPRESS, INC does not assume liability for failure of USPS to deliver in a timely period nor does SAY CARGO EXPRESS, INC assume liability for loss within the USPS System, the responsibility for tracing shall be assumed by the shipper.
25. All freight charges are due and payable upon receipt of an invoice from SAY CARGO EXPRESS, INC. Any charges not paid within 20 days from date of shipment will be deemed delinquent and subject to collection. SAY CARGO EXPRESS, INC will be entitled to recover all reasonable collection and legal cost from shipper, consignee or payer. A $25 service charge will be assessed on any check returned from the bank for insufficient funds or any other reason.  All invoices not paid within 30 days of invoice date will be subject to a charge of 1.5% per month.
26. All freight charges are the obligation of shipper unless otherwise requested by shipper at the time of receipt of shipment by SAY CARGO EXPRESS, INC, and agreed upon by SAY CARGO EXPRESS, INC.  SAY CARGO EXPRESS, INC reserves the right to refuse to change the payer on any shipment.
27. The Shipper and Consignee shall be liable, jointly and severally, A) for all unpaid charges payable on account of a shipment pursuant to this contract, and B) to pay or indemnify SAY CARGO EXPRESS, INC for all claims, fines, penalties, damages, collection and legal expenses, cost or other sums which may be incurred by SAY CARGO EXPRESS, INC by reason of violation of this contract or any other default of the Shipper, Consignee, Payer or their agents.
28. SAY CARGO EXPRESS, INC reserves the right to impose a lien on the freight of Shippers with delinquent charges on previous shipments, including the cost of storage and security, until such charges have been paid within the terms agreed upon between Shipper, Consignee and Carrier.
29. SAY CARGO EXPRESS, INC shall have a lien on the shipment for all sums due and payable to SAY CARGO EXPRESS, INC pursuant to this contract. SAY CARGO EXPRESS, INC may refuse to surrender possession of the goods until such charges are paid. If complete payment is not made within 30 days of lien, merchandise will become property of SAY CARGO EXPRESS, INC and payment will still be required.
30. Cargo items tendered for air transportation are subject to aviation security controls by air carriers and when appropriate, other government regulations. Copies of all relevant shipping documents showing the cargo’s Consignee, consignor, description, and other relevant data will be retained on file until the cargo completes its air transportation.
31. Each individual executing this Agreement on behalf of any Party expressly represents and warrants that he/it has authority to execute and thereby bind the Party on behalf of which he/it executes this Agreement to the terms of this Agreement and agrees to indemnify and hold harmless each other Party from any claim that such authority did not exist.
32. Except for the electronic confirmation discussed in Paragraph 2, this Agreement may only be modified by a subsequent document in writing, signed by the Party to be charged thereunder.
33. The provisions for this Agreement shall for all purposes be construed according to their fair meaning and not strictly for or against any Party hereto.
34. If any provision of this Agreement is determined by a court of competent authority to be unenforceable, for any reason, the remaining provisions shall nevertheless be of full force and effect.