Performance Plus Global Logistics Terms & Conditions
The Customer (“Customer”) and Performance Plus, LLC, a Missouri corporation (“Performance Plus”) hereby agree as follows:
1. Parties. Customer is a Shipper and/or Consignee of certain goods it wishes to have transported. Performance Plus is a freight broker. Performance Plus is not acting as either a Motor Carrier, or a Common Carrier within the meaning of USC Title 49. Performance Plus contracts with various freight carriers (“Carriers”) on behalf of the Customer for the purpose of obtaining discounted rates for transportation. Performance Plus reserves the right, in its sole discretion, to refuse any shipment at any time. Performance Plus and the Customer may be collectively referred to as the “Parties” or individually either may be referred to as “Party” in this Agreement.
2. Tariffs. In the event of a conflict in the terms of this Agreement and an applicable Tariff (“Tariff”) then in effect with a selected carrier, in every instance the Tariff shall take precedence and control in the interpretation of the rights and obligations of the Parties. If no conflict exists with respect to the Carrier’s Tariff, this Agreement shall control. Customer is responsible for requesting and reviewing Tariffs in effect with a designated Carrier. Performance Plus is not obligated to provide copies of Tariffs, or any information contained therein, to Customer.
3. Bills of Lading. The Customer shall use Performance Plus’s provided Bill of Lading (“BOL”). The Customer shall cause to be completed all the appropriate documents required for carriage, in light of the services being sought, and the pick up or destination requested. In the event the Customer fails to timely and properly complete the appropriate documents, the Customer hereby instructs Performance Plus, where permitted by law, and Performance Plus may at its option, but without obligation, complete, correct or replace the documents for them at the expense of the Customer. If a substitute form of BOL is needed to complete delivery of this shipment for any reason and Performance Plus completes that document, the terms of the completed BOL will govern and Performance Plus will be exonerated from all liability for undertaking such actions on behalf of the Customer including specifically liability for, in whole or in part, negligence by Performance Plus. All Bills of Lading are non-negotiable and have been prepared by the Customer or by Performance Plus on behalf of the Customer in accordance with the Customer’s instructions and approved by the Customer, and shall be deemed conclusively, to have been prepared by the Customer. The Customer is required to provide the BOL to the Carrier designated by Performance Plus. Any failure to provide the proper BOL to the designated Carrier shall render the entire transaction void ab initio. Performance Plus shall have no obligation to make any payments or honor any rate quotes in any of the following instances: (i) the unauthorized alterations or use of bill of lading, or (ii) tendering of shipments to any carrier other than that designated by Performance Plus, or (iii) the use of any bill of lading not authorized or issued by Performance Plus.
4. Customer Representations and Warranties to Performance Plus. The Customer represents and warrants that at all times during the term of this Agreement, it will be in compliance with all applicable laws, rules, and regulations (“Laws”) including applicable Laws relating to customs, import and export required by country to, from, through or over which the shipment may be carried. The Customer agrees to furnish such information and complete and attach to the BOL such documents as are necessary to comply with such Laws. Any individual or entity acting on behalf of the Customer in scheduling shipments or undertaking any other performance hereunder warrants and represents that he, she or it has the right to act on behalf of and legally bind the Customer. Performance Plus assumes no liability for any loss or expenses due to the failure of the Customer to comply with this paragraph and Customer shall indemnify and hold Performance Plus harmless for any claims or damages resulting from violation of this paragraph, including attorney’s fees and costs.
5. Payment. All charges are payable in US Dollars and are due and payable fifteen (15) days from the date of billing (net/15). Past due payments shall be subject to an additional charge at the rate of 1-1/2% per month of the average outstanding balance due, or the highest rate of interest permitted by applicable law, whichever is less. All funds received by Performance Plus will be applied to the oldest (based on pick-up date) invoiced BOL that is outstanding. Overpayments do not accrue interest. In the event this Agreement is placed by Performance Plus in the hands of an attorney or collection agency for collection, Customer agrees to pay, in addition to the account balance, all collection costs including reasonable attorney’s fees, (including such fees and costs incurred in the successful defense of any crossclaim or counterclaim brought against Performance Plus).
6. Credit Approval. Payment terms and credit limits are subject to credit approval, which shall be determined from time to time, in the sole and absolute discretion of Performance Plus. The Customer grants Performance Plus the right to perform such credit and background searches as Performance Plus deems necessary. When paying by credit card or electronic funds, the Customer agrees it will be responsible for all charges due and owing, including any adjustments, on account of such Customer’s shipment. The Customer authorizes Performance Plus to charge the Customer’s credit card or bank account for any charges.
7. Determination of Charges. The customer shall be liable for all charges payable on account of such Customer’s shipment. Such changes may include transportation, fuel and other applicable accessorial charges, all adjustments issued by the carrier(s) after the shipment, and all duties, customs assessments, governmental penalties, fines and taxes. Performance Plus reserves the right to amend or adjust charges and to re-invoice the Customer in the following events: (i) if the original quoted amount was based upon incorrect information provided by the Customer, or (ii) if additional services by the carrier were required, or (iii) if the Customer authorized the carrier to perform the pick up, transportation and delivery functions other than contemplated by the BOL. Any disputes by the customer of any invoice issued by Performance Plus shall be made in writing, specifically indicating the nature of the dispute and received by Performance Plus at their offices within 30 days from the date of the invoice. In the event Performance Plus does not receive timely written notice of the dispute, the charges will be conclusively presumed to be valid. Customer authorizes Performance Plus to advise third parties of asserted liens and to hold possession of any shipment against which a lien is asserted.
8. Lien. Performance Plus shall have a lien on the shipment for all sums due it relating to this shipment or any other amounts owed by Customer.
9. Claims and Limitations of Liability. Performance Plus is not liable for any loss, damage, mis-delivery or nondelivery caused by: (i) the act, default or omission of a Carrier, the Customer or any other party who claims interest in the shipment, or (ii) the nature of the shipment or any defect therein, or (iii) a violation by the Customer of any provision of this Agreement, the BOL, the carrier’s Tariff, including, improper or insufficient packing, securing, marking or addressing, or (iv) failure to observe any of the rules relating to shipments not acceptable for transportation or shipments acceptable only under certain conditions, or (v) acts of God, perils of the air, public enemies, public authorities, acts or omissions of Customs or quarantine officials, war, riots, strikes, labor disputes, shortages, weather conditions or mechanical delay or failure of vehicles, aircraft or other equipment, or (vi) the acts or omissions of any person other than employees of Performance Plus; or (vii) the selection of carrier for a particular shipment. Customer acknowledges that in order to provide competitive rates for the services, that the parties have agreed as a material term of this Agreement that the burden of any loss or damage incurred as a result of Performance Plus’s alleged liability has been shifted to the Customer, and that in any event the maximum amount of Performance Plus’s liability is limited to the fees that Performance Plus has earned with respect to the subject shipment.
Customer specifically acknowledges that Performance Plus shall have no liability for negligent acts or omissions of its employees except to the extent such actions or omissions constituted gross negligence.
The filing of a claim does not relieve the responsible party for payment of freight charges. Freight payment is necessary in order to process a claim. Customer may not offset freight or other charges owed to Company against claims for any loss, delay, damage, mis-delivery or non-delivery. The Company shall have a lien on funds recovered through the processing of damage claims and reserves the right to apply recovery amounts to open past due invoices on account.
10. Insurance. The Customer will look solely to insurance provided by the carrier for damage to goods in transit. Each carrier’s governing Tariff will determine the standard liability cargo insurance coverage offered on any shipment, subject to any exception value. If the shipment contains freight with a predetermined exception value, as determined by the selected carrier, the maximum exception liability will override the liability coverage otherwise provided by the Tariff. The Customer acknowledges a claim for damages does not relieve it for payment under the terms of this Agreement. Timely payment is a condition precedent to the processing of a damage or insurance claim. All freight cargo claims should be submitted immediately to Performance Plus to help ensure timely resolution. Performance Plus will attempt to assist in the resolution of freight claims, but has no responsibility or liability therefore. Where a damage claim is submitted with carrier on behalf of
Customer, Performance Plus has a lien on any amounts recovered to the extent of open past due invoices on the Customer’s account. Performance Plus may have optional Shippers Interest Contingent Cargo Liability Insurance (“Third Party Insurance”) available for purchase by the Customer. Performance Plus has no responsibility or liability with respect to the issuance or denial of Third Party Insurance, or in the payment or denial of claims.
11. Disclaimer of Warranties. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, PERFORMANCE PLUS MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH REGARD TO SHIPMENTS, WAREHOUSED
GOODS, ITEMS IN TRANSIT OR DELIVERIES OR WITH REGARD TO THE INFORMATION PROVIDED ON THIS WEBSITE OR SERVICES RELATED TO TRANSACTIONS CONDUCTED ON THIS WEBSITE. PERFORMANCE PLUS CANNOT GUARANTEE DELIVERY BY ANY SPECIFIC TIME OR DATE. IN NO EVENT, SHALL PERFORMANCE PLUS BE LIABLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES RELATING TO LOSS OF PROFITS OR INCOME, WHETHER OR NOT SUCH DAMAGES WERE REASONABLY FORESEEABLE.
12. Rates. “Less than Load” Rates (“LTL”) rates are based on the freight class as determined by the National Motor Freight Classification (“NMFC”) and are weight based. All displayed transit times are estimates only and do not include day of pickup. LTL pickup dates are not guaranteed. Truckload rates (“TL”) 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, Tractor Detention, Trailer Detention, and Driver Assistance. Customer must tender this load to carrier at the agreed upon rate, or pay a $ 150.00 “truck ordered, not used” penalty. Air Freight rates are based on the greater of actual or dimensional weight. If an Air Freight shipment contains oversize freight, additional charges and transit days may apply. Van Line rates are driven by state to state/mileage, weight (actual or density) and commodity/product type. 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. All displayed transit times are estimates only and do not include day of pickup. Pickup dates are not guaranteed.
13. Guaranteed Services. Performance Plus will provide LTL Guaranteed Services for additional charge, if requested by the Customer. LTL delivery times generally do not begin to run until the day after the pickup of the shipment, except as otherwise noted by the carrier selected. Guaranteed Service transit times do not include holiday and/or “no service” days as defined by the individual carrier. The Customer is liable for all charges related to the shipment. In the event of a carrier’s failure to comply with the guaranteed service requested, the Customer shall have fourteen (14) days from the actual delivery date of shipment to deliver a written claim request to Performance Plus. If Performance Plus does not timely receive a claim request within said fourteen (14) 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. In the event of the carrier’s failure to comply with the guaranteed service requested and after the carrier has agreed to liability and has paid the amount awarded to Customer to Performance Plus, Performance Plus will credit the account of the said Customer with such amount awarded and paid by the carrier. In no event shall Performance Plus be liable nor will any account be credited if the Customer does not use Performance Plus’s BOL.
14. Attorneys’ Fees. Should any proceeding (including arbitration) or litigation be commenced between the Parties hereto concerning the terms of this Agreement, or the rights and duties of the Parties hereto, the prevailing party in such proceeding or litigation shall be entitled, in addition to such other relief as may be granted, to a reasonable sum as and for the prevailing party’s attorneys’ fees.
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16. Binding Nature of Agreement; Assignment. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective heirs, personal representatives, successors and assigns, except that no party may assign, delegate or transfer any of its obligations under this Agreement without the prior written consent of the other parties hereto, which consent shall not be unreasonably withheld.
17. Headings. The headings used in this Agreement are used for administrative purposes only and do not constitute substantive matter to be considered in construing the terms of this Agreement.
18. Execution. This Agreement shall become binding upon written acceptance by Performance Plus of Customer’s acknowledgement of its intent to be bound thereby, as evidenced by its designation of acceptance on Performance Plus’s web page or by its execution of the BOL, or by acknowledgement by the Customer.
19. No Other Parties to Benefit. This Agreement is made for the sole benefit of the Parties hereto and their successors and permitted assigns. Except as expressly provided herein, no other person or entity is intended to or shall have any rights or benefits hereunder, whether as third-party beneficiaries or otherwise.
20. Remedies. In the event of a breach of this Agreement or any term hereof by any party, the other Party, shall have all rights and remedies available at law, in equity, or under the terms of this Agreement, except as otherwise limited herein.
21. Construction. This Agreement is intended to express the mutual intent of the Parties hereto, and irrespective of the identity of the Party or counsel who prepared this document, no rule of strict construction shall be applied against any Party.
22. Governing Law; Forum; Venue. This Agreement is deemed executed, delivered and performed in the State of Missouri, and the substantive laws of the State of Missouri and Federal law as applied in Missouri (without reference to choice of law principles) and specifically excluding the United Nations Convention on Contracts for the International Sales of
Goods, shall govern its interpretation and enforcement. Any action brought to interpret or enforce any provisions of this Agreement, or otherwise relating to or arising from this Agreement, shall be commenced and maintained in the Circuit Court located in St. Charles County, Missouri, or the Federal District Court for the Eastern District of Missouri and each of the Parties consents to jurisdiction and venue in such court for such purposes.
23. Modification and Waiver. No provision of this Agreement shall be amended, waived or modified except by an instrument in writing signed by the Parties hereto.
24. Materiality. All covenants, agreements, representations and warranties made herein shall be deemed to be material and to have been relied on by the Parties in entering into this Agreement and shall survive the acceptance of this Agreement.
25. Severability; Integration. The inapplicability or unenforceability of any provision of this Agreement shall not limit or impair the operation or validity of any other provision of this Agreement. This Agreement and the documents incorporated into this Agreement by reference, constitutes and embodies the full and complete understanding and agreement of the Parties hereto and supersedes all prior understandings, whether oral or written. No representation, promise, inducement or statement of intention has been made by any Party hereto which is not contemplated by or embodied in this Agreement, and no Party hereto shall be bound by or liable for any alleged misrepresentation, promise, inducement or statement of intention not so set forth.
26. Indulgence Not Waiver. Neither the failure nor any delay on the part of any Party to exercise any right, remedy, power or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege preclude any other or further exercise of the same or of any other right, remedy, power or privilege, nor shall any waiver of any right, remedy, power or privilege with respect to any occurrence be construed as a waiver of such right, remedy, power or privilege with respect to any other occurrence.
27. Additional Instruments and Acts. The Parties to this Agreement shall execute (with acknowledgment or in affidavit form, if required) any further or additional instruments, and shall perform any acts, which are or may become reasonably necessary to effectuate and carry out the purposes of this Agreement, without the necessity of incurring any additional
28. Interpretation. In this Agreement the singular includes the plural, and the plural the singular; words importing any gender include the other genders; references to “writing” include printing, typing, lithography and other means of reproducing words in a tangible visible form; the words “including,” “includes” and “include” shall be deemed to be followed by the words “without limitation.”
29. Authority. By execution of this Agreement, the signatories hereto represent and warrant their authority to act in the capacity stated. By execution of this Agreement each Party represents and warrants its right, power and authority to enter into
and to perform its obligation under this Agreement.
CANCELLATION POLICY FOR PERFORMANCE PLUS, LLC
Cancellation of Services
All shipments cancelled by the Customer are subject to a cancellation fee, regardless of the reason for cancellation.
Additionally, it should be understood that cancellations as consequence of the Freight Carrier’s refusal to transport a shipment due to improper or unsafe preparation (packaging), limited access (location or time), Customer’s failure to perform their responsibilities, or any other unreasonable limitation outside the control of the carrier do not negate the following cancellation clauses:
LTL Shipments: Customer may request cancellation at any time up to 24 hours prior to original date of dispatch, providing that the shipment has not picked up or attempted to pick up. If the Customer elects to cancel the service, Performance Plus reserves the right to assess a 15% cancellation and processing fee. For shipments requiring special services, Performance Plus will offer to arrange transport by appropriate alternative Carrier(s). Charges will be based on actual services as required. Cancelled shipments are subject to any service fees plus the 15% cancellation fee.
Full and Partial Truckload Shipments: Customer may request cancellation at any time up to 24 hours prior to original date of dispatch, providing that the shipment has not picked up or attempted to pick up or any pre-negotiated special arrangements made. If the customer elects to cancel the service, a 15% cancellation and processing fee will be applied plus any additional fee assessed by the carrier. Additional TONU charges will be assessed on all trucks ordered, but not used based on carrier pricing. This includes cancellations and service request changes.
Vehicle Shipments: Customer may request cancellation at any time up to 48 hours prior to original date of dispatch, providing that the shipment has not picked up or attempted to pick up. This is subject to custom arrangements, specific one-off moves and/or dedicated vehicles dispatched for said move. A $150 cancellation fee will be assessed for cancellation.
Expedite Shipments: Customer may request cancellation at any time up to 24 hours prior to the original date of dispatch/scheduling, providing that the shipment has not picked up or attempted to pick up. A $150 cancellation fee will be assessed for cancellation.