Terms of Service - Shipper

The following Terms of Service – Shipper, when accepted and in combination with the additional accepted sections of the Terms of Service shall constitute a legally binding agreement between Mothership Technologies, Inc. (“Mothership”) and the user (Shipper) accepting the Terms of Service (“Agreement”). The effective date of the Agreement shall be the date the user completes its acceptance of all sections required to form the complete Agreement.

1. SHIPPER REPRESENTATION AND RESPONSIBILITIES

1.1 Shipper hereby represents, warrants and covenants that:

a. Shipper owns the shipped items or has the necessary rights to ship such items.

b. Shipper uses the Service to ship items at its own risk through the motor carriers that use the Service and agrees that Mothership will have no liability for any Freight or any claims, demands, loss or damages related to the Freight.

c. Shipper is solely responsible for obtaining any insurance to cover any of its own potential losses.

d. Shipper is solely responsible for any and all liability, which results or is alleged as a result of the Freight, including, but not limited to, property damage, personal injury, and death.

e. if Shipper is loading, bracing and securing its goods, Shipper understands that it is liable for any claims, loss, or damage as a result of Shipper doing so improperly or unsafely. Shipper understands that Mothership is in no way responsible for the securing, lading, packaging, or compliance with shipping instructions for your shipments.

f. Shipper understands that Mothership is not a motor carrier, and as such, is not liable as a motor carrier to Shipper or the recipient of the Freight shipped under this Agreement.

g. Shipper understands that tracking the locations of your shipments through the Service does not guarantee that such shipments will be delivered to you at the time specified.

h. Shipper represents that, with respect to Shipments under this Agreement, Shipper is not acting as a property broker or arranging for transportation for the account of others. Any entity acting as a licensed property broker must instead accept the Terms of Service – Co-Broker.

1.2 Shipper shall not contact any Carrier to solicit, offer, or book shipments with the Carrier for 12 months from the last date of a Shipment between you and the Carrier. Mothership reserves the right to terminate your Account or this Agreement in its sole discretion for a breach or suspected breach of this Section.

1.3 Shipper shall not use the Service to ship contraband or items that are illegal, dangerous, radioactive, harmful, unsafe, infringe upon a trademark, copyright, or privacy rights, or are offensive or objectionable.

1.4 To the extent Shipper uses the Service to ship the below items, and any damage, destruction, loss, or other liability arises during transit, Shipper acknowledges that they bear all risk for any damage, claim or losses thereto to the extent that Carriers’ insurance policies and Carriers are unable to do so. This provision in no way limits or affects Shipper’s, Mothership’s, or Carrier’s liabilities related to other items. This applies, but is not limited to, the following items:

a. bullion, precious metals, precious metal objects, gold, silver, platinum, precious or semi-precious stones (including but not limited to diamonds, emeralds, sapphires and rubies), and precious jewelry which includes jewelry made from precious metals and stones.

b. money, securities, accounts, bills, currency, food stamps, lottery tickets, notes, bank notes, coins, bonds, negotiable instruments or evidence of debt, passports, tickets, documents, manuscripts, records, or other valuable papers.

c. tobacco products and processed tobacco.

d. bottled or canned spirits.

e. cellular phones and PDAs.

f. valuable works of art which includes antiques, paintings, sculptures, tapestries, collectibles or other objects for display; or

g. Bloodstock and live animals including cattle or poultry.

2. REQUIREMENTS FOR MOTOR CARRIERS

2.1 Mothership represents that it has entered into or will enter into a bilateral electronic written Terms of Service (“TOS - MC”) with each Carrier it utilizes in the performance of this Agreement to transport the Freight. Shipper agrees that Mothership may arrange for the transportation of the Freight through another licensed property broker, in which case Mothership will require such broker to impose on its motor carriers requirements equivalent to those set forth in this Section 2. Mothership further represents that the TOS-MC contractually requires the Carriers to:

a. Hold valid licenses issued by the FMCSA, with a “Satisfactory” or “Unrated” status.

b. Comply with all applicable federal and state laws and regulations pertaining to the transportation of freight, including safety regulations and environmental regulations, regulations under the Food Safety Modernization Act (where applicable), Hazardous Material regulations (where applicable) and state employment laws and regulations.

c. Ensure that all drivers used by the Carrier have been qualified as required by the applicable laws, including 49 CFR § 391, 395; 21 CFR §1308.

d. Maintain the following insurance coverage:

- Automobile Liability with a minimum policy limit of $1,000,000

- Cargo Liability with a minimum policy limit of $100,000

- Worker’s Compensation as required by the law of the applicable state.

e. Agree that the provisions contained in 49 CFR 370.1 et seq. shall govern the processing of claims for loss, damage, injury or delay to the Freight and the processing of salvage.

2.2 Mothership shall verify the FMCSA licensing of each Carrier and shall maintain current Certificates of Insurance from each carrier listing the insurance coverage stated herein.

2.3 For Freight of any kind delivered directly to consumer’s homes, (“Consumer Deliveries”), Mothership represents that in addition to the foregoing, Mothership further represents that the TOS-MC-CONSUMER DELIVERIES contractually requires Carriers to conduct background screenings of its drivers, in addition to the requirements of 49 CFR § 391, 395; 21 CFR §1308:

a. In compliance with all applicable laws Carrier will conduct background screening on each driver that will be assigned to perform the Consumer Deliveries that include at least the following:

(i) review of criminal background at the federal level and in all counties in which the driver resided in the preceding seven (7) years;

(ii) verification of prior employment for the preceding five (5) years;

(iii) verification of highest educational level reported;

(iv) military service verification through review of DD-214 or other military issued paperwork;

(v) Global Terrorist Watch List search; and

(vi) verification of residency for the past two (2) previous residencies or seven (7) years.

b. To the extent permitted by Law, and in accordance with any regulations or administrative guidance, after conducting an individualized assessment, the Carrier will be contractually prohibited from assigning or permitting a driver to make Consumer Deliveries if the criminal background screen results reveal

(i) a conviction for any crimes involving violence or abuse,

(ii) any job-related felony crime in the preceding seven (7) years,

(iii) any misdemeanor crimes related to theft, fraud, dishonesty, violence or drugs in the preceding seven (7) years, or

(iv) any motor vehicle related offenses that involve driving under the influence, reckless or careless driving, injury to persons or property or series of offenses that indicate an unsafe driver.

c. Carriers will accept sole responsibility and liability for compliance with all laws related to the conduct of background checks.

3. INDEMNIFICATIONS

3.1 Shipper agrees to defend, indemnify, and hold harmless Mothership (and its officers, employees, and agents) with respect to any and all claims, demands, loss, damage, expenses, or liability, including costs and attorneys’ fees, made by any party due to or arising out of Shipper’s or its agents’: (i) use of the Service; (ii) User Content; (iii) interaction with any other User; (iv) violation of this Agreement; (v) violation of applicable laws or regulations; or (vi) your shipment contents.

3.2 Mothership reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. Shipper agrees not to settle any matter without the prior written consent of Mothership.

3.3 Mothership will use reasonable efforts to notify Shipper of any such claim, action or proceeding upon becoming aware of it.

3.4 This indemnification with respect to Mothership applies regardless of any provisions in separate contracts between Mothership and third parties.

3.5 Shipper also hereby waives any claims or demands by Shipper against Mothership related to any costs, loss, expenses or liability arising from the above-listed actions by you or your agents.

4. FREIGHT CLAIMS – LIMITATION OF LIABILITY

4.1 Mothership’s and the Carrier’s maximum liability to Shipper, any involved consignor or consignee, and any beneficial owner of the Freight, shall be no more than $100,000 for any loss, damage, or injury to property resulting from any cause, including Mothership’s performance of or failure to perform the broker services provided herein.

4.2 In the event of loss or damage to cargo, Mothership provides Shippers with two options, Basic or FreightProtect.

a. Selection of the Basic service confirms:

(i) that Mothership bears no liability for cargo loss or damage, and that Carrier is the party liable for such loss or damage pursuant to Section 14706 of Title 49 of the United States Code as in effect on the date of this Agreement, up to the amount of $100,000 per shipment. If the actual value of a shipment exceeds $100,000, Shipper ships such excess value at its own risk under the Basic option; Shipper’s sole means of covering value in excess of $100,000 is selection of FreightProtect with an accurate declared value.

(ii) Shipper, Consignor, or Consignee shall endeavor to submit a claim to Mothership within ninety (90) days of the incident, and in no event later than nine (9) months from the delivery date or, in the event of non-delivery, the scheduled delivery date.

(iii) Mothership shall transmit the claim to the Carrier, or its insurance company, and will assist but will not take responsibility for the claims handling.

(iv) Unless agreed in a separate written contract, Shipper is not entitled to offset the amount of any claims which remain unpaid or unresolved against amounts owed by Shipper to Mothership.

(v) Carriers’ resolution of claims may take up to 120 days.

(vi) Shipper acknowledges that the rates it is charged for each shipment are dependent upon this limitation of liability and that if such limitation were not in place, the freight charges would be higher, depending upon the value of the freight. This limitation shall apply to the benefit of the Carriers.

b. Selection of the FreightProtect coverage:

(i) will cause Mothership to have the shipment covered by cargo insurance obtained by Mothership, up to the declared value, subject to the per-conveyance limits and commodity eligibility of the applicable policy (higher limits may be available upon request, subject to underwriting approval). This coverage will entitle the Shipper to a refund of the shipment charges, plus re-shipment if applicable. FreightProtect claims must be reported to Mothership promptly upon discovery of loss or damage and, where the Proof of Delivery was signed without notation of loss or damage, no later than five (5) days after the executed Proof of Delivery. FreightProtect coverage proceeds are insurance proceeds and are not subject to the limitation of liability set forth in Section 4.1.

(ii) The FreightProtect coverage also provides additional and faster claims handling services by Mothership, and faster reimbursement compared to the Basic service.

(iii) All claims submitted under the FreightProtect coverage will be subject to a $100 deductible.

4.3 Shipper must file claims for cargo loss or damage with Mothership within nine (9) months from the date of such loss, shortage or damage, which for purposes of this section shall be the delivery date or, in the event of non-delivery, the scheduled delivery date. Shipper must file any civil action against Mothership within two (2) years from the date the Carrier or Mothership provides written notice to Shipper that the Carrier has disallowed any part of the claim in the notice.

4.4 Shipper shall assist Mothership in providing information for the filing and processing of claims with the Carrier. If payment of claim is made by Mothership to Shipper, for any reason, Shipper automatically assigns its rights and interest in the claim to Mothership and shall provide to Mothership an assignment of claims by the beneficial owner of the Freight so that Mothership may pursue a claim against the Carrier in the position of a shipper or beneficial owner of the Freight.

4.5 In no event shall Mothership or any Carrier be liable to Shipper for special, incidental, consequential, or punitive damages that relate to loss, damage, or delay to a shipment. This waiver of liability applies even if Shipper has informed Mothership prior to or when tendering a shipment or series of shipments of the potential nature, type, and approximate amount of such damages.

4.6 Under either option to be selected by Shipper, the Carrier’s liability shall remain subject to all other terms and conditions set forth in Section 14706 of Title 49 of the United States Code as in effect on the date of this Agreement, as required of the Carrier under the TOS-MC.

5. PAYMENT

5.1 Mothership shall provide Shipper with proof of acceptance and delivery in the form of a signed Bill of Lading or Proof of Delivery. If any party inserts Mothership or Shipper as the carrier on any Bill of Lading or Proof of Delivery, such designation shall not change the fact that Mothership is a licensed freight broker. The terms and conditions of any freight documentation used by Shipper or any Carrier may not supplement, alter, or modify the terms in this Agreement.

5.2 For each Shipment, Shipper is obligated to pay Mothership the fees listed to Shipper when the applicable Shipment was accepted for posting on the Service (“Shipment Fee”). Mothership reserves the right to amend or adjust the original quoted amount or re-invoice the Shipper if the original quoted Shipment Fee was based upon incorrect information received at the time of the original quote, if additional services by the Carrier were required, or as otherwise necessary to perform the pickup, transportation and delivery functions therein. Shipper agrees they will be responsible for all charges payable, including any adjustments, on account of such Shipper’s shipment.

5.3 The Shipment charges and adjustments, if any, will be automatically debited to the Shipper’s credit card, bank account, prepaid funds or approved net payment terms along with applicable payment processing fees. Adjustment charges (re-bills), meaning amounts billed by the Carrier after the fact for additional required services or freight, including, but not limited to, charges resulting from incorrect weight, dimensions, or commodity descriptions, are subject to a $10 administration fee. If the Shipper disputes an adjustment charge within the ten (10) day window set forth below, the administration fee will not be charged until the dispute is adjudicated by the Carrier, and will not be charged if the dispute is resolved in the Shipper’s favor. If the Shipper does not dispute the adjustment charge within such window, the adjustment charge and the administration fee will be charged. Shipper shall be permitted ten (10) days from the date of the invoice to dispute any invoiced charges. If Mothership does not receive a dispute within the allowable ten (10) days, the invoiced charges shall be deemed accepted and any subsequent dispute will be denied.

5.4 If Shipper has provided a valid credit card, YOU HEREBY AUTHORIZE Mothership Technologies, Inc. TO BILL YOUR CREDIT CARD FOR SHIPMENT FEES AND YOU AGREE THAT NO ADDITIONAL NOTICE OR CONSENT IS REQUIRED. If you have provided Mothership with your bank account information instead of a credit card, YOU HEREBY AUTHORIZE Mothership Technologies, Inc. TO PROCESS A DEBIT FROM YOUR BANK ACCOUNT FOR SHIPMENT FEES AND YOU AGREE THAT NO ADDITIONAL NOTICE OR CONSENT IS REQUIRED. In the event a debit is subsequently returned for non-sufficient funds, you agree that we may add a returned check fee of $25.00 to the amount of the debit and take any action available to us at law or in equity to collect such a full amount. YOU AGREE TO PAY THE RETURNED DEBIT FEE, THE INITIAL AMOUNT AND ANY COLLECTION CHARGES INCURRED BY US. If Shipper has funded a prepaid balance, Shipper authorizes Mothership to apply the prepaid balance to Shipment Fees, adjustments, and re-bills as they are incurred.

5.5 If you wish to dispute a charge, you may do so via the Dispute feature on the Site. In the event that Mothership charges any convenience fee for making a payment via a credit card or electronic check, these fees will be stated at the time of payment before you finalize your charge. In the event of an unauthorized charge using a credit card or electronic check, please consult your bank’s rules regarding refunds and reversals.

5.6 Mothership complies with all legal requirements of your state’s applicable laws regarding providing refunds for unauthorized charges. When you make a charge, Mothership shall display a completed charge screen and email you a link to your receipt. You should print or save this electronic receipt for your records. YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL RIGHT TO USE ANY CREDIT CARD(S), CHECKS, OR OTHER PAYMENT MEANS USED TO INITIATE ANY TRANSACTION. All information that you provide to our third party payment processor or us must be accurate, current and complete. You agree to immediately notify Mothership of any change in your billing address or the credit card or bank account used for payment hereunder.

5.7 Payment is due upon receipt by the Shipper of the signed Bill of Lading or Proof of Delivery. However, if Shipper requests and Mothership agrees, the payment due date may be extended by up to thirty (30) days from the completion of the Shipment.

5.8 Approved net payment terms are solely an accommodation as to the time of payment of charges for Services rendered and do not constitute a loan, extension of credit, credit line, or financing arrangement. Prepaid balances funded by Shipper are advance payments for Services; they may be applied only to charges for Services provided by Mothership, are not transferable to any third party, do not accrue interest, do not constitute a deposit account, stored value, or money transmission, and are not insured by the FDIC. Unused prepaid balances are refundable upon Shipper’s written request or upon closure of Shipper’s Account, and dormant or abandoned balances will be handled in accordance with applicable unclaimed property laws.

6. DETERMINATION OF RATES

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

6.2 Truckload rates are based on dock door pickup/dock door delivery and shipper load/consignee unload and are state to state and mileage based. Additional fees may apply for charges including but not limited to, tractor detention, trailer detention, and driver assistance. Once Mothership has contracted with a carrier to move a truckload shipment, the scheduled load must be tendered to the carrier as requested on the bill of lading at the agreed upon price, or equipment not used (EON) fee will be assessed.

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

6.4 All displayed transit times are estimates only and do not include day of pickup. Pickup dates are not guaranteed.

7. LTL GUARANTEED SERVICES

7.1 LTL Guaranteed Services are inclusive of transit times only as noted by the carrier selected. Guaranteed Service transit times do not include holiday and/or no service days as defined by the individual carrier. Shipments not delivered within date/time specified on the bill of lading may not be considered a service failure when the reason for the delivery delay is deemed as no fault of the carrier. These reasons could include, but are not limited to, the following conditions: (i) acts of God; (ii) the existence of violence, riots, military action or such possible disturbance as creating reasonable apprehension of danger; (iii) acts or omissions by shipper, consignee, owner of goods or public authority; (iv) delays due to customs clearance or documentation required for movement of shipment; (v) closure of federal, state, city or local roads, streets, or highways resulting in travel delays by carrier; (vi) shipments not accepted by the consignee when offered for delivery.

7.2 This service is not a guarantee for pickup. Pickup Day is not included in the qualification and calculation of LTL transit time. The Shipper is liable for all charges related to the shipment. In the event of carrier failure to comply with the guaranteed service requested, the Shipper is permitted ten (10) business days from the actual delivery date of shipment to file a claim request in writing with Mothership. If Mothership does not receive a claim request or receives the request after the allowable ten (10) business days, the service provided by the LTL carrier will be deemed to have met all guaranteed service standards and the claim request will automatically be considered invalid and denied.

7.3 In the event of carrier failure to comply with the guaranteed service requested and after the carrier has agreed to liability, Mothership will credit the account of Shipper for freight charges according to the carrier’s guaranteed refund policy only.

7.4 In no event shall Mothership be liable, nor will any account be credited if the Shipper does not use the Form Bill of Lading provided by Mothership. To the extent Mothership is found negligent in connection with an LTL Guaranteed Service under this Section 7, Mothership’s liability is limited to no greater than a refund of the total freight charge payment related to the specific Bill of Lading in question.

Related Terms and Policies
- Terms of Service - General Terms
- Terms of Service - Concluding Terms - Shipper