The following terms and conditions shall apply to all carriage, delivery, transportation, handling, and/or any other services offered or performed by Comet not expressly covered by the specific terms and conditions below this Section, such as Warehouse Terms and Conditions, and Brokerage Terms and Conditions. “Carrier” shall include Comet and any other carrier or service provider providing any portion of the services described. “shipper”, “consignee”, or “you” shall refer to any party requesting or receiving services from Comet, and these Terms and Conditions are incorporated by reference into every Comet bill of lading, delivery receipt, invoice, quote, or other shipping document. These terms bind the party from who the cargo is shipped and to whom the cargo is delivered, regardless of which party retained Comet.
1. (a) Comet or the party in possession of any of the property described in any bill of lading or receipt shall be liable for loss or damage thereto only as hereinafter provided.
(b) Carrier shall have no liability for any loss or damage to a shipment or for any delay caused by an Act of God, the public enemy, public authority, or any act, omission, or default of the shipper. The carrier or party in possession shall not be liable for loss, damage or delay which results: when the property is stopped and held in transit upon request of the shipper, owner or party entitled to make such request; or from faulty or impassible highway, or by lack of capacity of a highway, bridge or ferry; or from a defect or vice in the property.
2. Unless arranged or agreed upon, in writing, prior to shipment, Carrier is not bound to transport a shipment by a particular schedule or in time for a particular market, but is responsible to transport with reasonable dispatch. In case of physical necessity, carrier may forward a shipment via another carrier. Carrier shall have no liability for any claim for delay absent a separate written agreement to deliver by a date or time certain. In the case of delivery by a date or time certain, the maximum potential damages recoverable by shipper for late delivery shall be the additional surplus charges paid for the guaranteed time or date service for that shipment.
3. (a) As a condition precedent to recovery, any claim for loss, damage, or delay must be submitted in writing with the carrier identified on the face of the bill of lading or receipt. The failure to take exceptions to the condition of goods at delivery, and the execution of a delivery receipt by the consignee without exceptions to the condition of the cargo shall be direct evidence that the shipment was received in good condition. Any claim of concealed damage requires notice to the carrier within 24 hours of delivery in the case of local or intrastate transportation, or within five (5) days in the case of interstate transportation. Carrier shall have no liability for concealed damage where shipper fails to notify carrier in writing of concealed damage within requisite time frame. Any cargo for which consignee did not take a written exception on the delivery document at the time of delivery shall be considered concealed damage.
(b) On intrastate shipments, Claims for loss, damage, or delay must be filed within fifteen (15) days of delivery of shipment or the reasonable delivery date of such shipment if undelivered. Failure to file such written claim shall be deemed a waiver of the right to claim damages by such shipper.
(c) On interstate shipments, Claims for loss, damage, or delay must be filed within nine (9) months of delivery of shipment or the reasonable delivery date of such shipment if undelivered. Failure to file a written claim as specified herein shall be deemed a waiver of the right to claim damages by shipper, consignee, or beneficial owner.
(d) Claims must meet the standard provided by 49 CFR 370.3, and the case law interpreting the same regardless of whether the shipment was interstate or intrastate in nature. This regulation requires at a minimum that all claims include an identification of the particular shipment and the damage thereto, assert liability on the part of the carrier for that damage, and state a specified or determinable amount of monetary compensation sought for such damages. Any written submission which does not strictly adhere to these requirements shall not be recognized as a claim and may not be reviewed, investigated, responded to, or paid.
(e) Suits for loss, damage, injury or delay shall be instituted against any carrier no later than two years and one day from the day when written notice is given by the carrier to the claimant that the carrier has disallowed the claim or any part or parts of the claim specified in the notice. Where claims are not filed or suits are not instituted thereon in accordance with the foregoing provisions, no carrier shall be liable, and such claims will not be paid.
(f) Any carrier or party liable for loss of or damage to any of said property shall have the full benefit of any insurance that may have been effected, upon or on account of said property, so far as this shall not void the policies or contracts of insurance, provided that the carrier receiving the benefit of such insurance will reimburse the claimant for the premium paid on the insurance policy or contract.
4. (a) In all cases not prohibited by law, where a shipper fails to declare a value to the carrier in writing prior to tendering the subject shipment, which declaration is received by carrier, and rate increase is agreed upon and paid by the shipper, the value of the shipment is hereby agreed to be not more than $50.00 per shipment, or ten cents per pound, per article, whichever is less. Under no circumstances can Carrier be held to greater liability for loss, damage, or delay to cargo.
(b) The limitation of liability provided for in this section shall be enforceable regardless of cause of loss, damage or delay, including gross negligence, recklessness, or willful and wanton conduct. Nothing short of conversion to the carrier’s own use, for the direct benefit of the corporation itself, shall vitiate this limitation of liability.
(c) The limit of Comet Delivery Service’s liability may be increased up to $500.00 per shipment maximum. Carriers hereunder will not carry a shipment declared to have a value in excess of $500.00 under any bill of lading. Any shipment with a value in excess of $500.00 must be represented by a separate written agreement whereby the commodity is described in detail and the carrier expressly agrees to such greater value. Such separate written agreement must be executed by duly authorized representatives of each party at least twenty-four hours prior to transportation. Under no circumstance whatsoever can any shipment lead to greater liability for loss or damage to cargo than $500.00 in total.
(d) Under no circumstances will any shipment containing particularly high valued items such as cash, furs, jewelry, coins, art, negotiable instruments, or items of similar value to weight ratios be accepted pursuant to the bill of lading. Any such shipments must be covered by a separate written agreement executed by both parties. If such a shipment is inadvertently accepted by carrier, or mislabeled by shipper for any reason, Carrier’s liability shall be limited as provided in section 4(a).
(e) Under no circumstances will Comet Delivery Services be liable for loss or damage caused by delay or by improperly packed or improperly labeled shipments, or for any “special” or “consequential” or “economic” damages including, but not limited to lost interest, profits, income, or business opportunities whether or not Comet Delivery Services acknowledged or knew such damages may be incurred.
5. No employee or representative of Comet Delivery Services is authorized to alter, vary or contradict these terms regarding Comet Delivery Service’s liability.
6. Should any claim in any amount even if in excess of such limits of Comet Delivery Service’s liability be asserted against Comet Delivery Services by any third party for any loss or damage to any shipments carried hereunder, shipper agrees to indemnify Comet Delivery Services and hold it harmless against any damages, expenses, or cost including attorney’s fees, arising out of any such claim regardless of the cause.
7. Freight charges pursuant to any bill of lading are due within three (3) business days of delivery of said shipment unless a credit agreement is in place between Carrier and Shipper. In the event of customer’s failure to pay freight charges in full within fifteen (15) days of date of invoice, customer hereby agrees to pay interest on such unpaid balance in the amount of 1.5% per month. No shipper or consignee shall be entitled to set off any claims for loss, damage or delay against freight charges owed to carrier, and any pending or denied claims shall not serve to toll or void the Carrier’s collection efforts, loss of discount, or Carrier’s entitlement to fees for collection. This fee provision extends only to the collection of delinquent freight charges, and does not apply to any other claims, demands, disputes, or litigation of any kind between the parties.
8. Nothing in the bill of lading shall limit the right of the carrier to require the prepayment or guarantee of the charges at the time of shipment or prior to delivery. If the description of articles or other information on the bill of lading is found to be incorrect or incomplete, the freight charges must be paid based upon the articles actually shipped.
9. (a) If the consignee refuses the shipment tendered for delivery by carrier or if carrier is unable to deliver the shipment, because of fault or mistake of the consignor or consignee or for any reason not directly attributable to carrier, the carrier's liability shall then become that of a warehouseman, except that the limitations of liability herein shall still apply unless a lesser limitation is found to apply by virtue of the law. Carrier shall promptly attempt to provide notice, by telephonic or electronic communication as provided on the face of the bill of lading, if so indicated, to the shipper or the party, if any, designated to receive notice on the bill of lading. Storage charges, based on carrier's terms and conditions, shall start no sooner than the next business day following the attempted notification. Storage may be, at the carrier's option, in any location that provides reasonable protection against loss or damage. The carrier may place the shipment in public storage at the owner's expense and without liability to the carrier.
(b) If the carrier does not receive disposition instructions within 48 hours of the time of carrier's attempted first notification, carrier will attempt to issue a second and final confirmed notification. Such notice shall advise that if carrier does not receive disposition instructions within 10 days of that notification, carrier may offer the shipment for sale at a public auction and the carrier has the right to offer the shipment for sale. The amount of sale will be applied to the carrier's invoice for transportation, storage and other lawful charges. The owner will be responsible for the balance of charges not covered by the sale of the goods. If there is a balance remaining after all charges and expenses are paid, such balance will be paid to the owner of the property sold hereunder, upon claim and proof of ownership.
10. (a) Shipper shall not communicate or attempt to communicate with any driver, carrier, or service provider utilized by Comet without the express written consent of Comet, which must specifically reference this paragraph of these terms and conditions. This prohibition shall not include communication in person as is necessary at the pickup or delivery of any cargo. However, this shall apply to any communication via telephone, cellular phone, any application, software, or technology of any kind. All communication for and instruction to drivers and personnel must be delivered through Comet.
(b) Where Comet has provided written approval for communication between shipper or consignee and driver via software or application, all such communication must copy Comet in real time with the same communication sent to the driver.
11. Collection. (a) unless otherwise provided in writing, specifically addressing this paragraph of these terms and conditions, all invoices for services provided by Comet are due in full within fifteen (15) days of the date of each invoice.
(b) All charges will begin to accrue interest at a rate of 18% per annum on the 16th day after the invoice.
(c) All charges not paid within thirty days of the invoice date shall turned over for collection and will be subject to a 30% loss of discount and collection fee.
(d) If we are forced to retain legal counsel to collect unpaid charges, you shall be liable for attorneys’ fees incurred both pre-suit in making demands to you for the balance due and negotiating any resolution, as well as incurred during the course of any required litigation. These fees shall only apply to collection of unpaid freight charges for which no valid dispute was timely received, and the parties expressly agreed that such attorney fees shall not apply for any other dispute or cause of action between them. This fee provision extends only to the collection of delinquent freight charges, and does not apply to any other claims, demands, disputes, or litigation of any kind between the parties.
12. (a) It is the sole and non-delegable duty of shipper to provide appropriate packaging, containerization, sealing, palletizing, boxing, or crating of product tendered to carrier or for carriage.
(b) All cargo must be packaged and prepared in a manner so as to withstand the normal rigors of transportation by motor carriage and handling.
(c) Acceptance by Comet of any package or cargo does not serve as acquiescence or agreement to the fitness of the packaging or packing of said cargo.
(d) In the event that a failure, flaw, omission, mistake, or negligence of any kind of degree in the packaging of the product tendered by shipper to Carrier, shipper hereby agrees to indemnify and hold harmless Carrier from any and all damage resulting from said insufficient, improper, failing, or negligent packaging, including damage to other commodities transported or stored by Carrier and damage to Carrier’s property or that of any other entity or individual.
(e) It is shipper’s further duty to ensure that all product is accurately and properly marked, classified, and tendered in accordance with these rules and the normal standards of interstate and intrastate shipping.
(f) Shipper shall defend, indemnify, and hold harmless, COMET from any damage, loss, liability, or claims of any kind resulting from the improper or negligent packing, marking, description or classification of any product.
(g) Any and every party, whether principal or agent, shipper or consignee, who ships explosives, illegal goods, contraband, or dangerous goods, shall be liable for and indemnify the carrier against all loss or damage caused by such goods. Such goods may be warehoused and disposed of at owner's risk and expense or destroyed without compensation.
13. Venue and Jurisdiction. The Parties expressly agree that all transactions between them have been performed primarily within the state of Florida and that only federal and Florida law shall apply to any dispute between them. The Parties further agree to exclusive venue in the Courts of Broward County, Florida. In any dispute except for collection of freight charges, each party shall bear their own attorney’s fees.
14. Force Majeure. Neither Party shall be liable to the other for failure to perform any of its obligations under this Agreement during any time in which such performance is prevented by fire, flood, or other natural disaster, war, embargo, riot, civil disobedience, or the intervention of any government authority, or any other cause outside of the reasonable control of the Parties, provided that the Party so prevented uses its best efforts to perform under this Agreement and provided further, that such Party provide reasonable notice to the other Party of such inability to perform.
15. Failure of Comet to insist upon performance of any of the terms, conditions, or provisions herein, or to exercise any right or privilege herein, or the waiver of any breach of any of the terms, conditions, or provisions herein, shall not be construed as thereafter waiving any such terms, conditions, provisions, rights or privileges, but the same shall continue and remain in full force and effect as if no forbearance or waiver had occurred.
16. If any provision of these terms and conditions is held to be illegal, invalid, or unenforceable under the present or future laws effected, such provision shall be fully severable from the remaining provisions, and it shall not affect the validity of the remaining provisions, which provisions shall be given full force and effect as if the illegal, unenforceable, or invalid provision had not been included. In lieu of an illegal, unenforceable, or invalid provision, there shall be substituted a provision as similar in terms to the illegal, invalid, or unenforceable provision as may be possible and still be legal, valid and enforceable.
These terms along with any issued bill of lading or receipt embody the entire understanding between shipper, consignee, and Comet covering the services to be performed hereunder, and there are no other agreements, understandings, conditions, warranties, or representations, oral or implied, prior or contemporaneous, with reference to the subject matter hereof.
In the event of any conflict between these terms and conditions and any term or provision in any other document related to or used in the process of transporting or delivery of goods by Comet, these terms and conditions shall be superior and shall govern to the extent of the conflict.