1. Agreement to Terms:
By giving us (“Optima”) your shipment to transport, you (“Shipper/Customer”) agree to these Terms and Conditions which supersede any contrary terms or conditions in any bill of lading or other shipment document. By giving us your shipment you also agree to these Terms and Conditions on behalf of any third party, including any insurance company, having or claiming to have an interest in the shipment. If there is a conflict between these Terms and Conditions and those stated in any receipt, bill of lading or other shipment document, these Terms and Conditions will control. No one is authorized to change these Terms and Conditions.
2. Responsibility for Accurate Shipment Information
a) Shipper/Customer is responsible for properly describing each article in the shipment on the bill of lading, shipping order, receipt or other shipment document and warrants and represents to Optima that the goods are properly prepared, packaged and labeled for transportation in accordance with the packaging rules and requirements of the U.S. Department of Transportation. Shipper/Customer also is responsible for and warrants that it has complied with all applicable laws, rules, regulations, including but not limited to import and export laws and government regulations of any country to or from which the shipment may be transported.
b) Shipper/Customer shall be bound by and does hereby warrant the accuracy of all invoices, documents and other information furnished to Optima by the Shipper/Customer or its agent for export, entry or other purposes and the Shipper/Customer agrees to indemnify, defend and hold harmless Optima against any increased duties, penalties, fines or expenses, including reasonable attorney’s fees, resulting from any inaccuracy or omission or any failure to make timely corrections even if not due to any negligence of the Shipper/Customer.
3. Liability in General.
Optima shall be liable only under federal law, 49 U.S.C. §14706, or federal common law where applicable, for any loss, damage or delay to the shipment, except as hereinafter provided and limited. Optima shall not be liable for any loss or damage to a shipment or for any delay caused by an Act of God, acts of public enemies, the authority of law, or the act or default of Shipper/Customer, perils of air, weather conditions, mechanical delays, war, strikes, civil commotions, international or national or local disruptions to air or ground transportation networks or acts or omissions of public government authorities (including, but not limited to customs or quarantine officials) with actual or apparent authority. Optima shall not be liable for loss, damage or delay which results: when the property is stopped and held in transit upon request of Shipper/Customer, owner or party entitled to make such request; or from a faulty or impassible highway; or lack of capacity of a highway bridge or ferry; or from a defect or vice in the property; or from riots or strikes; or from improper packaging or an act or omission on the part of Shipper/Customer or from an act of God. Optima is not bound to transport any shipment by a particular schedule or for a particular market, but is responsible only to transport with reasonable dispatch. In case of physical necessity, Optima may forward a shipment via another carrier.
4. Responsibility for Packaging.
Shipper/Customer is responsible for adequately packaging and labeling its goods and properly filling out a receipt or bill of lading for transportation. If Shipper/Customer omits the number of packages and/or weight per package, Optima’s billing will be based on its best estimate of the number of packages it received and/or an estimated “default” weight per package as determined by Optima. In tendering a shipment for carriage, Shipper/Customer agrees and warrants that the shipment is properly packaged to protect the enclosed goods and to insure safe transportation with ordinary care and handling in accordance with the packaging rules and requirements of the U.S. DOT.
5. Right to Refuse.
All shipments tendered to Optima are subject to refusal for transportation, carriage and/or handling by Optima or its designated agent(s).
6. Limitation of Optima’s Liability.
a) In consideration of Optima’s rates and charges, Optima’s liability for any loss, damage or delay to any shipment shall be limited to the sum of $100.00 (One Hundred Dollars) per shipment or the actual value of the shipment, whichever is less, unless Shipper/Customer declares a higher value, up to a maximum of $25,000, in writing on the shipping receipt or bill of lading prior to shipment and agrees to pay an additional valuation charge for such added value declaration. Contact Optima at (781) 935-7979 for declared value/added valuation charges. The declared value or added valuation for a shipment is not insurance, and Optima does not provide or sell cargo liability insurance.
b) It is the intention of the parties that the limitations of Optima’s liability for cargo loss, damage or delay claims as described in these Terms and Conditions shall apply to any and all cargo claims against Optima. Therefore, in the event Optima pays Shipper/Customer for any cargo claim hereunder and subsequently receives another claim or lawsuit from or by the consignee, beneficial owner of the goods or their subrogating insurance company seeking damages that are duplicative of or in excess of the limit of Optima’s liability hereunder (“duplicate claim or lawsuit”), then Shipper/Customer agrees to defend, indemnify and hold Optima harmless from and against all damages, costs and attorney’s fees incurred by Optima in defending or settling such duplicate claim or lawsuit.
7. No liability for Special or Consequential Damages.
Under no circumstances will Optima be liable for any special, incidental, indirect or consequential damages of any kind, including but not limited to loss of income, lost profits or market, lost opportunity, loss of business, antique or sentimental value, attorney’s fees or any other forms of damage, whether direct, incidental, indirect, consequential or special, regardless of whether Optima had knowledge that such damage(s) might be incurred.
8. “Collect-on Delivery” Shipments.
Where Shipper/Customer tenders to Optima a “Collect on Delivery” (“COD”) shipment, Optima’s responsibility shall be only to collect any form of payment (cash or any form of check) from the consignee, and Optima shall not be liable for insufficient funds, “stop payments” or other defects in the form, accuracy or effectiveness of the consignee’s payment method. Shipper/Customer agrees to hold Optima harmless and free from any liability for the failure of the consignee’s payment instrument or improper collection of COD funds.
9. Rates and Charges.
a) Quotations as to fees, rates, duties, freight charges, added valuation charges and any other charge or fee related to Optima’s services are given by Optima for information purposes only, are subject to change without notice and shall not under any circumstances be binding upon Optima unless Optima agrees in writing to the specific rate and undertakes the handling or transportation of the shipment at the specific rate.
b) All charges are due and payable upon receipt of the invoice. Any payment which is past due shall subject to an additions charge of 1½% per month of the outstanding balance due or the maximum interest permitted by applicable law, whichever is less.
c) In the case of international shipments, the Shipper/Customer or it’s/his consignee is responsible for all duties, taxes or fees as they relate to U.S. Customs or foreign government authorities (including, but not limited to customs officials).
d) All rates are based on a per package/piece basis and are assessed by the greater weight at actual or dimensional (in pounds) weight. It is an industry procedure to round up to the next weight level for any fraction of a pound. Dimensional weight is calculated by multiplying the unit (inches) measurements of the length by width by height and dividing this result total by the current dimensional factor.
e) All packages are subject to reweigh by Optima, and if additional charges are due, the Shipper/Customer agrees to pay them upon receipt of notice from Optima of any such additional charges.
f) Optima reserves the right to assess additional charges for any “special service” required by the Shipper/Customer in connection with any shipment. Special services include, but are not limited to, late night pick-ups, multiple pick-ups, weekend service and special pick-ups and deliveries. All such charges shall be in addition to Optima’s basic rates and charges.
g)Carrier’s Lien. Optima shall have a general lien on any and all property (and documents related thereto) of the Shipper/Customer in its possession, custody or control for all unpaid charges, expenses or advances due Optima in connection with any shipments of the Shipper/Customer if such charges remain unpaid for thirty (30) days after demand for payment is made. Optima may sell at public auction or private sale, upon ten (10) days’ written notice via registered mail (R.R.R.) to the Shipper/Customer, the property, goods, wares and/or merchandise in Optima’s possession, or so much thereof as may be necessary to satisfy such lien, and apply the net proceeds of such sale to the payment of the amounts due to Optima. Any surplus from such sale shall be transmitted to the Shipper/Customer, who shall remain liable to Optima for any deficiency in the sale.
h) Shipper/Customer shall remain liable for transportation charges where there has been an erroneous determination of the freight charges assessed based upon incomplete or incorrect information provided by Shipper/Customer.
i) Nothing shall limit Optima’s right to require the prepayment or guarantee of any charges at the time of shipment or prior to delivery. If the description of articles or other information on the shipment receipt or bill of lading is found to be incorrect or incomplete, the freight charges must be assessed and paid based upon the articles actually shipped.
j) The confiscation or detention of a shipment by any governmental authority shall not affect or diminish Shipper/Customer’s the liability for and obligation to pay Optima all charges or other monies due promptly on demand.
10. Importation/Exportation Liability.
In no event shall Optima be liable for any act, omission or default in connection with an exportation or importation shipment unless a claim therefore shall be in writing with Optima within one hundred eighty (180) days from date of exportation or importation of the goods in a written statement to which a sworn proof of claim shall be attached. No suit to recover for any claim or demand on an import or export shipment shall in any event be maintained against Optima unless instituted within (6) months after presentation of the said claim, as above provided. No agent or employee of the company shall have authority to alter or waive any of the provisions of this clause.
11. Indemnification.
In the event any third party – including but not limited to another shipper, an insurance company, other person, entity or any governmental agency – makes a claim or institutes legal action against Optima for cargo loss, damage or delay, air or other freight charges, duties, fines, penalties, liquidated damages or other claimed damages related to or arising from Optima’s transportation or handling of a shipment of goods of the Shipper/Customer, then Shipper/Customer agrees to indemnify, defend and hold Optima harmless from all such claims, damages, costs and expenses and any amount Optima may be required to pay such claimant plus reasonable expenses, including reasonable attorney’s fees, incurred by Optima in connection with defending such claim or legal action and in obtaining reimbursement from the Shipper/Customer.
12. Claims.
a) As a condition precedent to recovery, claims for loss, damage or delay must be filed in writing with Optima and must include sufficient information to identify the shipment, assert Optima’s liability, and must set forth a specified or determinable amount of money claimed.
b) Claims for loss or damage must be in writing and must be filed within nine (9) months after the delivery of the shipment, except that claims for failure to make delivery must be filed within nine (9) months after a reasonable time for delivery has elapsed.
c) The claim-filing regulations of the Federal Motor Carrier Safety Administration at 49 C.F.R. §370, et seq. are hereby adopted and incorporated herein by reference and shall apply to all loss, damage and delay claims filed with Optima.
d) Lawsuits for loss, damage, injury or delay must be instituted against Optima no later than two (2) years and one day from the day when written notice is given to the claimant that Optima has disallowed the claim or any part or parts of the claim specified in the in the notice. Where claims are not filed or suits are not instituted thereon in accordance with the foregoing provisions, Optima shall not be liable, and such claims will not be paid.
e) Where a shipment is received damaged and the consignee has signed the delivery receipt as such, the consignee must make the original shipping/packing materials available for inspection for up to thirty (30) days at the original delivery location.
f) Optima shall have the full benefit of any insurance that may be effected upon or on account of said shipment, so far as this shall not void the policies or contracts of insurance, PROVIDED, that Optima, receiving the benefit of such insurance, will reimburse the claimant for the premium paid on the insurance policy or contract for the shipment.
13. Concealed Damage Claims.
a) Receipt of a shipment by the consignee without written notification of loss, damage or delay on the delivery receipt will constitute a presumption that the shipment was delivered in good condition and in a timely manner.
b) In the event of a claim for concealed damage which is not discovered at the time of delivery, the Shipper/Customer or the consignee must notify Optima in writing within five (5) days of the date of delivery. If more than five (5) days elapse between date of delivery and Optima’s receipt of such notification, the burden shall be on the Shipper/Customer or the consignee to show good cause why timely notification of damage was not made at the time of delivery and that the damage did not occur after delivery. At the discretion of Optima concealed damage claims may be conclusively denied for delay in notification.
14. Refusal at Destination.
a) If a consignee refuses a shipment tendered for delivery by Optima or its agent, or if Optima is unable to deliver a shipment due to fault or mistake of Shipper/Customer or consignee, Optima’s liability immediately shall become that of a warehouseman. Optima shall attempt to provide notice, by telephonic or electronic communication, to Shipper/Customer or the identified party, if any, designated to receive notice on the bill of lading or shipment receipt. Shipper/Customer shall be liable to Optima for additional delay charges of $100 per day or any portion thereof, which shall start to accrue immediately following Optima’s notice as referenced above. At Optima’s option, Optima may place a refused shipment in storage or other repository – at owner’s or Shipper/Customer’s expense and without liability to Optima – in any commercially reasonable location.
b) Where Optima has reasonably attempted to follow the procedures set forth in subsection 14.a. above Optima, at its option, may sell the property under such circumstances and in such manner as may be authorized by law.
c) Where Optima is directed by Shipper/Customer or consignee to unload or deliver a shipment at a particular location where Shipper/Customer, consignee or the agent of either is not regularly located, Optima shall not be liable for any risk of loss, damage or harm to the goods.
15. Explosives and Dangerous Goods.
Every party, whether principal or agent, who ships explosives or dangerous goods without prior full written disclosure to Optima of their nature, shall be liable for and indemnify Optima against all losses, costs, damages and expenses caused by such goods. Such goods may be warehoused at owner’s risk and expense or destroyed without compensation.
16. Waiver of Subrogation.
Shipper/Customer understands and agrees that Optima’s rates do not include insurance or other compensation for loss, damage or delay other than as expressly provided herein and limited hereby. Accordingly, Shipper/Customer agrees that in the event it desires insurance coverage for any loss, it will obtain its own insurance, and that said insurance will contain a waiver of subrogation provision waiving any subrogation rights for and on behalf of such insurance company. In the event Shipper/Customer fails to obtain a waiver of subrogation, Shipper/Customer, at its expense, will defend, indemnify and hold harmless Optima and any of its agents or subcontractors with respect to any claims made by Shipper/Customer or any third parties acting as subrogees of Shipper/Customer.
17. Overcharge or Undercharge Claims.
The time limit for filing of claims for alleged undercharges or overcharges shall be twelve (12) months from the date of delivery of the shipment. Failure to file a claim challenging initial charges within the twelve (12) month period shall forever bar any action at law for recovery of such charges. Any action at law by either party to collect alleged undercharges or overcharges shall be commenced not later than eighteen (18) months after delivery of the Shipment. Expiration of the eighteen (18) month term shall be a complete and absolute defense against any such claim, regardless of any extenuating or mitigating circumstances or excuses of any nature.
18. Subcontracting.
If Optima is unable for any reason to perform the requested Services with its own motor vehicle equipment, it may fulfill its obligations by brokering or subcontracting the transportation Services to other motor carriers. When Optima arranges for the transportation of Shipper’s property under its broker authority, Optima shall remain liable to Shipper as if Optima transported the shipment as a motor carrier and subject to the terms of this Agreement.
19. Miscellaneous.
The foregoing terms and conditions shall be construed according to the laws of the United States and Title 49, United States Code insofar as applicable to the transportation of property, otherwise according to the laws of the Commonwealth of Massachusetts.
