These USA Brokerage Terms and Conditions (the "Agreement") apply to domestic truck brokerage that Vanguard Logistics Services (USA), Inc. ("VANGUARD") and/or its agents or subcontractors provide to you ("CUSTOMER") in the continental U.S. (the "Services"). Where the Services are included under an ocean bill of lading ("Bill of Lading") issued by VANGUARD or its affiliated company, or a Bill of Lading which VANGUARD or its affiliated company should have issued, the Bill of Lading terms and conditions will supersede the terms of this Agreement except to the extent of a conflict between them, in which case the terms of this Agreement will apply.

1.   VANGUARD agrees to use due diligence to determine that the underlying carriers it hires to transport CUSTOMER'S hazardous materials and dangerous goods under the Agreement have the necessary authority to transport hazardous materials and dangerous goods. VANGUARD is familiar with local, state, provincial, federal and international regulations in effect governing the handling and transportation of hazardous materials and dangerous goods, including, without limitation, the U.S. Code of Federal Regulations, Title 49, Part 397, of the Federal Motor Carrier Safety Regulations. CUSTOMER shall notify VANGUARD prior to tendering any shipment of any dangerous goods or hazardous materials, as defined within 49 C.F.R., Subtitle B, Parts 105-180, including any relevant details regarding the shipment, and shall not tender to VANGUARD any such shipment unless VANGUARD has expressly agreed in writing in advance to accept each such shipment. 

2.   VANGUARD agrees to use due diligence to determine that all underlying carriers it hires to transport CUSTOMER's goods under the Agreement have active operating authority and insurance coverage, which at a minimum, shall provide comprehensive general liability insurance, automobile liability insurance and cargo legal liability insurance against liability and claims.

3.    Except as otherwise provided herein, the motor carrier bill of lading shall serve as a receipt for the CUSTOMER's goods tendered thereunder. 

4.   It is expressly acknowledged and agreed that CUSTOMER will not tender shipments to VANGUARD on a freight collect basis unless VANGUARD agrees in writing to accept shipments on a freight collect basis.

5.    VANGUARD accepts no responsibility for loss of, damage to or delay of the goods under the Agreement.  All claims for cargo loss, damage or delay must be filed with the motor carrier. 

6.    If VANGUARD shall be found liable for loss, damage or delay of cargo, VANGUARD's maximum liability for all such claims under the Agreement shall not exceed $1 per pound of freight lost or damaged or delayed, not to exceed $1000 per incident.  For any other claim against VANGUARD under the Agreement, VANGUARD's total liability shall not exceed the sum of the fees paid by CUSTOMER to VANGUARD under the Agreement during the 6 months prior to the date the claim arose.  Anyone filing a claim or having a right to file a claim, including a claim for indemnity, against Vanguard for loss or damage to goods or damages for delay of the goods is limited by the limitations of and exonerations from liability in this Agreement.

7.    Notwithstanding any other term or provision of the Agreement, VANGUARD will not be liable for any consequential, incidental, or indirect damages for any claim or cause of action, whether in contract or tort, including without limitation, lost profits and loss of business opportunity, whether or not the other party was aware or should have been aware of the possibility of these damages.

8.    Claims by CUSTOMER and all other persons must be presented in writing to VANGUARD within a reasonable time, and in no event longer than eight (8) months from ship date on the motor carrier bill of lading. If VANGUARD does not receive written notice of a claim within this time period, then the claim is time barred. Written claims shall be sent to VANGUARD at:

Vanguard Logistics Services

Attn: Joe Newman

5000 Airport Plaza Dr., Suite 200

Long Beach, CA 90815

9.    If either party desires to bring an action against the other party concerning any rates, charges, rules, loss, or damage to products or services relating to the Agreement, the time period in which the action shall be commenced is one (1) year after the delivery of the goods or in the case of lost goods, the date the goods should have been delivered. If an action is not brought within this time period, the claim is time barred.

10.    Except as provided herein, Section 378, "Procedures Governing the Processing, Investigation, and Disposition of Overcharge, Duplicate Payment, Overcollection Claims", of Title 49 of the Code of Federal Regulations, as in effect on the effective date of the Agreement, and as the same may be amended or renumbered from time to time, shall apply as a process for resolving overcharge, undercharge, and duplicate payment claims hereunder.

11.   VANGUARD shall procure and maintain the following insurance coverages from and with reputable and financially responsible insurance providers:

(a) Workers ccompensation insurance in accordance with state statutes. 

(b) Commercial general liability insurance insuring VANGUARD against liability for injuries to persons, including injuries resulting in death, and loss or destruction of or physical damage to property.

(c) Errors and omissions insurance.

12.   CUSTOMER shall issue payment to VANGUARD for transportation services rendered hereunder within seven (7) days date of freight invoice, subject to credit approval. Interest at the highest rate allowable under applicable law may be charged on any late payment. In the event of any late payment of invoices, VANGUARD will provide CUSTOMER with written notice of late payment and the opportunity to cure such late payment within seven (7) days after written notice, failing which such non-payment shall be considered as a material breach of this Agreement.

13.   Neither party hereto shall be liable to the other for delay or default in performance of any right, obligation, service, and/or action herein which are caused by events and circumstances beyond the reasonable control of the respective party, including but not limited to fire, strike, riot, labor disputes, casualties, acts of terrorism, force majeure, acts of God, acts of war, acts of civil or military authority, or other similar contingency.  The parties shall immediately upon the occurrence of such events begin discussions as to mutually acceptable adjustments, methods, and actions for proceeding with any and all affected rights, obligations, services, and/or actions until, and when such events have concluded. This clause shall not apply to CUSTOMER'S payment obligations to VANGUARD.

14.   VANGUARD shall perform the services described hereunder as an independent contractor.  VANGUARD assumes full responsibility for the acts and omissions of its employees, and shall have exclusive liability for the payment of local, state, and federal payroll taxes, contributions or taxes for unemployment insurance, worker's compensation, pensions, or other social security and related protection with respect to VANGUARD'S employees engaged in the performance of such services, and shall procure and maintain all applicable licenses and permits pertaining to the operation of VANGUARD in providing such Services.

15.    Except as prevented by law, VANGUARD shall indemnify, defend, and hold CUSTOMER harmless from and against any and all loss, damage, expense, claims, and causes of action of every type and character arising out of, or in connection with the performance of the Agreement that is asserted against CUSTOMER by any person(s) for personal injury, death, or loss and/or damage to property to the extent resulting from the negligence or willful misconduct of VANGUARD or its employees.  The provisions of this section shall not apply to loss and/or damage, or delay to freight tendered for transportation under this Agreement.  

16.   Except as prevented by law, CUSTOMER shall indemnify, defend, and hold harmless VANGUARD, its affiliates and its and their agents and subcontractors from and against any and all claims, losses, demands, damages, liabilities, costs, expenses (including attorneys' fees), obligations, causes of action, or suits arising out of personal injury, death, or physical loss and/or damage to property, including VANGUARD's property, to the extent resulting from the negligence or willful misconduct of CUSTOMER, its customer or its and their agents or employees.

17.    In the event that VANGUARD, for whatever reason, fails to pay its contracted carriers and agents for services rendered to CUSTOMER hereunder and the amounts are undisputed (as reasonably determined by VANGUARD), VANGUARD expressly acknowledges and agrees that CUSTOMER shall under no circumstances be liable for the payment of these charges, and that CUSTOMER shall be indemnified and held harmless by VANGUARD for any and all such payments made by CUSTOMER. 

18.   All rights and remedies conferred by the Agreement or by law are cumulative and may be exercised singularly or concurrently. If any term, condition, or provision herein is held invalid by any law, regulation or ruling, such invalidity shall not affect the enforceability of other terms, conditions, or provisions herein.

19.    No course of dealings between the parties, no waiver by VANGUARD or its underlying carriers or CUSTOMER and no refusal or neglect of VANGUARD or its underlying carriers or CUSTOMER to exercise any right or remedy or to enforce compliance with the terms of the Agreement will be considered a waiver of any provisions of the Agreement with respect to any prior or subsequent breaches, actions or omissions of the Agreement unless such waiver is expressed in writing and signed by the waiving party.

20.   The Agreement shall be governed by federal law, without regard to its conflicts of laws principles. In the absence of governing federal law, the Agreement shall be governed by the laws of the State of New York, without regard to its conflict of laws principles. Any disputes arising from or concerning the Agreement shall be heard in the United States District Court, Southern District of New York or the Supreme Court of the State of New York, New York County, as applicable. 

21.   In any action or proceeding between the parties hereto, or brought to enforce any of the terms and conditions of the Agreement, the prevailing party in such an action or proceeding shall be entitled to recover its reasonable attorney's fees and costs, after all appeals are exhausted or the time for taking of such appeals has expired.