Freight Forwarding Terms & Conditions

1. If Customer and Nissin International Transport USA, Inc. and its parent, subsidiaries and affiliates (collectively herein, “Nissin” or “Forwarder”) are parties to a corporate purchasing or supply agreement, then the terms of such agreement shall govern this quotation and the purchase of the freight forwarding described herein. If such an agreement does not exist, then the freight forwarding services described in the quotation are offered by Nissin only on the following terms and conditions. Any additional or different terms or conditions contained in Customer’s purchase order or otherwise proposed by Customer are objected to by Nissin without a need of further notice of objection and shall not be binding on Nissin unless agreed to in writing by an authorized officer of Nissin. In the absence of a written acceptance of the quotation and these terms and conditions by Customer, an acceptance of any services covered by this quotation shall constitute an
acceptance of these terms and conditions (the “Agreement”).

2. Freight Forwarding Services.

2.1 Services. Nissin agrees to arrange for transportation of Customer’s freight pursuant to these terms and conditions and the attached quotation. Nissin’s responsibility under this Agreement shall be limited to arranging with third-party carriers to transport Customer’s freight; Nissin will not be responsible for the actual transportation of the freight and will not be deemed a carrier of the freight. The parties may, upon written mutual agreement, include additional service terms to be attached as part of the quotation to which this Agreement is attached. In the absence of a written agreement to the contrary, transit time shall be established as reasonable dispatch. For each shipment, Customer shall be responsible to Nissin for timely and accurate delivery instructions, accurate description of the freight to be shipped, and any special handling requirements.

2.2 Non-exclusivity. Nissin and Customer agree that this is a non-exclusive agreement. Except as otherwise provided in this Agreement, Customer is not restricted from engaging the services of other forwarders, brokers, or engaging directly with carriers. Nissin is not restricted from providing freight forwarding services for other parties.

2.3 Bills of Lading. Nissin shall, within seven days of Customer’s request, provide Customer with proof of acceptance and delivery of goods in the form of a signed bill of lading.

2.4 Hazardous Materials. Customer shall comply with all applicable laws and regulations relating to the transportation of hazardous materials as defined in 49 CFR § 172.800 and § 173 et seq. to the extent that goods in any shipments constitute hazardous materials. Customer shall notify Nissin immediately if any such shipments contain hazardous materials. Customer shall defend and indemnify, and hold harmless, Nissin from any liability, loss, damage, or penalties of any kind (including reasonable attorney fees) resulting from Customer’s (a) failure to notify Nissin of any shipments containing hazardous materials, and (b) any failure by Customer to comply with all applicable hazardous materials laws and regulations.

2.5 Carrier Selection. Nissin shall use third party carriers that comply with the following requirements:

(a) Carriers must maintain a “satisfactory” safety rating as determined by the FMCSA and Carriers are prohibited from having an “unsatisfactory” rating. If a Carrier’s safety rating becomes unsatisfactory, Nissin will cease using such carrier to perform transportation services under this Agreement until its safety rating becomes satisfactory.

(b) All drivers assigned by a carrier to transport cargo will have sufficient time remaining under the hours of service regulations to complete the assigned transportation.

(c) In performing the transportation services to the extent any shipment contains hazardous materials, the carrier shall be certified to transport such hazardous materials and maintain all applicable regulatory certifications.

(d) A carrier’s liability for cargo loss or damage shall be limited to $100,000 for the replacement cost of the entire container.

(e) Each shipment handled by a carrier shall be evidenced by a written document initiated by the consignor at the point of origin of the shipment and will be legibly signed by the carrier showing the kind and quantity of the cargo received at the loading points specified. Such form will be evidence of the receipt of such cargo by the carrier in apparent good order and condition or as may otherwise be noted on the face of such form. Upon delivery, carrier must obtain a delivery receipt signed by the consignee showing the kind, quantity and condition of the cargo delivered at the specified destination and the time of delivery.

(f) Carriers shall maintain the insurance set forth in Section 9 below.

3. Compliance with Laws.

Customer shall comply with all government requirements pertaining to the freight, including all applicable regulation of Federal, state, and local agencies that apply to the freight. Nissin shall not be responsible for any liabilities, fines, or penalties resulting from the Customer’s failure to comply with the legal or regulatory requirements of any governmental agency or with a notification issued to the Customer by any governmental agency. Nissin shall comply with all laws applicable to this Agreement and its obligations under this Agreement, including its provision of freight forwarding. Without limiting the generality of the foregoing, Nissin shall at its own expense, maintain all certifications, credentials, licenses, and permits necessary to conduct its business relating to the freight forwarding services, including those required by the FMCSA.

4. Warranties.

4.1 Nissin warrants to Customer that it shall perform the freight forwarding services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services. Customer’s exclusive remedy for Nissin’s breach of the service warranty contained in Section 4 regarding any shipment is Nissin’s refund of the fees paid by Customer in connection with the corresponding shipment.

THIS SECTION SETS FORTH CUSTOMER’S SOLE REMEDY AND NISSIN’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN THIS SECTION 4.1. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 4.1, NISSIN MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER REGARDING THE SERVICES, AND EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER IMPLIED, STATUTORY, ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.

5. Freight Loss and Damage Claims and Liability.

5.1 Freight claims are governed by 49 USC Section 14706 and 49 CFR Part 370, et seq. Customer is required to file in writing with Nissin any claims for freight loss or damage within one hundred and eighty (180) days from the earlier of (i) the delivery date, or (ii) in the event of non-delivery, the scheduled delivery date. In the event the applicable carrier disallows any part of Customer’s claim, Customer must file legal action in a court of law within two (2) years and a day from the date the carrier or Nissin first provides written notice to Customer that the carrier has disallowed any part of Customer’s claim. The carrier’s freight liability for any shipment shall not exceed $100, unless Customer requests an increased amount because of the nature of the freight, in which event Nissin and/or the applicable carrier will seek to obtain additional insurance coverage for an agreed upon additional fee. Customer agrees that Nissin shall not be liable for loss, damage or delay in the transportation of Customer’s freight except for any loss, damage or delay caused by the gross negligence of Nissin in the performance of this Agreement and, in such case, the liability of Nissin shall be limited to $100. Nissin shall provide reasonable assistance to Customer in its filing and processing of claims against the applicable carrier.

THIS SECTION 5 SETS FORTH CUSTOMER’S SOLE REMEDY AND NISSIN’S ENTIRE LIABILITY FOR ANY FREIGHT CLAIMS OF CUSTOMER HEREUNDER.

Any claims other than freight loss or damage claims require (1) written notification by the claiming party within sixty (days) after of learning of the events that give rise to the claim, and (2) filing of the claim within one hundred and eighty (180) days after the date of such notice.

IN NO EVENT IS EITHER PARTY LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THIS AGREEMENT, REGARDLESS OF (A) WHETHER THE DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT A PARTY WAS ADVISED OF THE POSSIBILITY OF THE DAMAGES AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE) ON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

EXCEPT FOR OBLIGATIONS TO MAKE PAYMENT UNDER THIS AGREEMENT, LIABILITY FOR BREACH OF CONFIDENTIALITY IN NO EVENT SHALL NISSIN’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID TO NISSIN UNDER THIS AGREEMENT IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS APPLY EVEN IF REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.

6. Relationship of the Parties; Solicitation of Carriers by Customer.

The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, franchise, business opportunity, joint venture, or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. Notwithstanding anything in this Agreement to the contrary, Customer agrees that it will not solicit carrier services from any carrier that (a) first became known to Customer as a result of Nissin’s services and related correspondence; or (b) where Customer freight was first transported by a carrier in connection with services provided by Nissin. If Customer breaches this agreement and contracts directly with such a carrier for the transportation of its freight, Nissin shall be entitled to the fees from Customer set forth in this Agreement as if Nissin provided its services in connection with such freight for a period of twelve (12) months after Customer first contracts directly with carrier for shipment of its freight.

7. Fees and Payment Terms.

Prices are valid for a period of thirty days following the date of the quotation unless otherwise stated on the quotation. Nissin shall be entitled to the fees for providing freight forwarding services set forth in the quotation to which this Agreement is attached or in a separately agreed writing between Nissin and Customer. Promptly after each job completion, Nissin shall invoice Customer for its fees, including the freight and other charges imposed by the carrier for such shipment. Customer shall pay Nissin’s invoice within thirty days after the invoice date. All payments hereunder must be in US dollars. Customer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law. Customer shall also reimburse Nissin for all costs incurred in collecting any late payments, including, without limitation, reasonable attorneys’ fees.

8. “Confidential Information” means any non-public information that relates to the actual or anticipated business and/or products, research, development, trade secrets, or know-how of the parties hereto, their affiliates or subsidiaries, including, but not limited to research, product plans, or other information regarding a party’s, its affiliates’ or subsidiaries’ products or services and markets therefor, customer lists and customers, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances, and other business information disclosed by a party, its affiliates or subsidiaries, either directly or indirectly, in writing, orally or by drawings or inspection of premises, parts, equipment. Notwithstanding the foregoing, Confidential Information shall not include any such information which the receiving party can establish (i) was publicly known or made generally available prior to the time of disclosure to the receiving party; (ii) becomes publicly known or made generally available after disclosure to the receiving party through no wrongful action or inaction of the receiving party; or (iii) is in the rightful possession of the receiving party, without confidentiality obligations, at the time of disclosure as shown by its then-contemporaneous written records.

During and after the term of this Agreement, the receiving party will hold in the strictest confidence, and take all reasonable precautions to prevent any unauthorized use or disclosure of Confidential Information of the disclosing party, and will not (i) use the Confidential Information for any purpose whatsoever other than as necessary for the performance its obligations under this Agreement, or (ii) disclose the Confidential Information to any third party without the prior written consent of an authorized representative of the disclosing party. The receiving party may disclose Confidential Information to the extent compelled by applicable law; provided however, prior to such disclosure, it shall provide prior written notice to the disclosing party and seek a protective order or such similar confidential protection as may be available under applicable law. The receiving party agrees that no ownership of Confidential Information is conveyed to it. Nissin and Customer agree that their obligations under this Section  shall continue after the termination of this Agreement.

9. Insurance.

Customer shall maintain property insurance covering the value of its freight. Nissin shall maintain and shall require that each carrier procure and keep in force continuously during the term of this Agreement, the insurance types and coverage amounts specified on Exhibit A hereto. Nissin shall furnish to Customer, with certificates from the insurers evidencing such coverages and providing for not less than thirty (30) days’ advance written notice of cancellation or non-renewal of coverage.

10. Miscellaneous.

This Agreement, the applicable quotation, together with any separately agreed rate sheet, represents the entire agreement and understanding of the parties with regard to its subject matter. No prior understandings or agreements of the parties, whether written or oral, nor any documents not specifically incorporated into this Agreement, nor any course of conduct of the parties before or after the Effective Date of this Agreement, shall have the effect of modifying the parties’ rights and obligations under this Agreement in any way. To the extent that any provision of this Agreement may be held to be invalid or unenforceable by a court of competent jurisdiction, such provision shall become ineffective as to all matters within the jurisdiction of that court. The court’s holding, however, shall not be treated as affecting the validity or enforceability of any other provision of this Agreement, nor as affecting the validity or enforceability of any part of this Agreement in other jurisdictions.

Neither the failure of a party to exercise any right, power or privilege under this Agreement, nor its delay in any such exercise, shall operate as a waiver of that right, power or privilege. No such waiver shall be binding on either party unless it is in writing and signed by an authorized representative of the party against which the waiver is asserted. No such waiver on one occasion shall preclude subsequent full enforcement of a party’s rights, powers and privileges under this Agreement or at law or in equity.

This Agreement shall be binding on, and shall inure to the benefit of, both parties as well as their respective successors and permitted assigns. This Agreement may be executed in one or more counterparts, any and all of which shall constitute one and the same instrument. This Agreement may be executed or delivered by facsimile or e-mail (pdf). Any such facsimile or e-mail (pdf) transmission shall constitute the final agreement of the parties and conclusive proof of such agreement. Nissin shall not be liable or responsible to Customer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Nissin including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers, or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.

All matters arising out of or relating to this Agreement shall be governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule (whether of the State of California or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of California. Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of California in each case located in the City and County of Los Angeles, California. Each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. The prevailing party in any litigation shall be entitled to recover its reasonable legal fees and costs.

Exhibit A

INSURANCE COVERAGE REQUIREMENTS

Nissin and Carrier shall maintain, at its sole cost and expense, and before commencement of any Services to be performed, all insurance required by applicable laws, from insurers with an A.M. Best Rating of A- VIII or better throughout the term of this Agreement, the following coverages:

1. Workers’ Compensation in accordance with the provisions of applicable laws and regulations, and Employer’s Liability insurance with limits of $1,000,000 each accident, $1,000,000 disease – each employee, and $1,000,000 disease – policy limit. If Carrier uses independent contractor drivers that are not covered by workers’ compensation, then Carrier will ensure that such drivers are covered by an occupational-accident or analogous policy of insurance providing benefits in
the event of work-related injury.

2. Commercial General Liability insurance, on an occurrence basis, endorsed to cover premises operations, products/completed operations, personal injury and contractual liability, including any and all liability assumed under this Agreement with limits of $1,000,000 per occurrence, $2,000,000 general aggregate, and $1,000,000 products/completed operations aggregate. The insurance shall cover all of carrier’s operations.

3. Business Automobile Liability covering the use of all owned, non-owned and hired vehicles with a combined single limit of liability of $1,000,000 each accident.

4. Motor Truck Cargo Legal Liability coverage in the minimum amount of $100,000 per container for the actual loss of, or damage to, cargo in the care, custody, or control of Carrier. (applicable to carrier only).

Applicable to Nissin only: Contingent Cargo Liability Insurance (Coverage for cargo losses up to minimum $100,000 per container or truck). Carrier’s insurance shall be primary as respects any claims, losses or liability arising directly or indirectly from Carrier’s operations.