TERMS & CONDITIONS OF SERVICE

The following Terms and Conditions of Service (“Terms”) shall govern the conduct of all business between the Customer and Audit Logistics, LLC (“Audit”).  In requesting that Services be rendered by Audit, Customer represents that it has read and agreed to these Terms. 

1. Definitions.  “Audit” means Audit Logistics, LLC, its subsidiary, affiliated and related companies, and its agents, representatives and employees.  “Customer” means the individual, corporation or other entity which has retained Audit to perform property brokerage, warehousing management, freight management, consulting and transportation intermediary services (the “Services”), as well as all agents, representatives and subcontractors of said individual, corporation or entity, including, but not limited to all shippers and consignees of the Goods, or the insurers thereof, and any other party claiming a right or interest in the Goods.  The Customer agrees to provide notice of these Terms to all parties falling within this definition of “Customer.”  “Goods” means the goods for which Audit provides Services. "Third Parties" shall include, but not be limited to, motor carriers, freight forwarders, NVOCCs, air carriers, agents, warehouses and others to whom the Goods are entrusted for transportation, cartage, handling, delivery, storage or otherwise.

2. Contract and Scope of Services.   Audit is a licensed property broker operating under FMCSA License No. MC-433634, which undertakes to arrange the interstate surface transportation of Goods through Third Parties (“freight management services”).  Audit also provides warehousing management services by arranging and managing the storage of Goods with Third Parties.  Audit also provides services as a “principal” within the meaning of 46 C.F.R. 515.2(o) in acting on behalf of Customers in employing the services of Ocean Freight Forwarders and NVOCCs.  Third Parties may limit their liability and may operate under terms and conditions further defining their rights, obligations, and defenses, and Customer authorizes Audit to agree to those terms on Customer’s behalf.  Customer agrees Third Parties are independent contractors and are not agents of Audit.

a.         Freight Management Services. If Customer accepts freight management services provided by Audit, such Services may include:

(1)       Logistical planning and coordination of transit dates, locations, delivery requirements, and notifications to Customer; the review and confirmation of Third-Party insurance coverage; tracking shipments from pickup to destination; and the issuance of bills of lading for Goods for which shipment is arranged.  All bills of lading prepared by Audit for domestic surface transportation shall be deemed to have been prepared by the Customer and will identify the actual motor carrier for the Goods, and Customer agrees that Audit’s preparation and issuance of any such bills of lading shall not change Audit’s status as a property broker.

(2)       The selection of motor carriers based on competitive bids that evaluate transit time, load size, destination length, type and value of product, and based on the motor carrier’s holding the necessary authority and licensure under Federal Motor Carrier Safety Administration regulations.  Audit will monitor and evaluate motor carriers and other Third Parties for delivery requirements and for claims experience. 

b.         Warehouse Management Services.  If Customer accepts warehouse management services provided by Audit, such Services may include:

(1)       Audit will competitively bid Customer’s project to multiple warehouse vendors to obtain the most competitive pricing available in that market.

(2)       Storage: All Goods will be stored in a clean, well-kept warehouse, specifically equipped for FF&E storage.  Goods will be stored according to a plan that will expedite the likely delivery sequence.

(3)       Receiving: Audit will receive shipments from vendors and enter items received into perpetual inventory report. Audit shall provide an inventory report, viewable on-line or sent via e-mail, as frequently as requested. Audit shall also provide Customer with copies of bills of lading and other similar shipping documents, as requested by Customer. Upon receipt of Goods, warehouse will check for visible carton damage, open and inspect damaged cartons, and will work with Audit to initiate damage claims, if needed.

(4)       Local Deliveries: Contractors for construction or installation will be required to provide Audit at least 24 hours’ notice (1 business day) written notice to access the warehouse. Contractors will also be required to provide Audit with a detailed pull list for deliveries at least 48 hours (2 business days) in advance of desired delivery date. Contractors may not communicate directly with warehouse personnel or have access the warehouse after normal business hours unless pre-authorized by Audit.

(5)       Additional Services: Additional charges will be incurred if services outside the scope of these standard warehouse management Services, including, but not limited to inspection of goods when visible damage to the carton is not present, repackaging of any Goods, or quantity verifications.

(6)       Inventory Control: Goods will be stored in the same cartons, packaging, containers and crates (“packaging or packages”) in which they arrived at the warehouse.  The warehouse will not open packaging to determine the number or condition of the Goods such packaging contains and will only be responsible for returning the same number of Goods as it received. Using information provided by the material vendors gathered from packing labels, bills of lading, and other available packing slips, the warehouse will describe what cartons are "said to contain" (STC), and will only open, inspect and verify quantities within packages for an additional charge only if specifically requested by Customer. 

(7)       Facility visits. Audit shall secure the right, without any prior notice, to enter the facilities of any warehouse vendor providing services to the Customer to confirm the warehouse’s compliance with the requirements in this section.  Upon reasonable written request by Customer, Audit shall conduct a facility visit to any vendor specified by Customer to ensure compliance with the terms of this section and shall provide a written report to Customer of Audit's findings within 7 calendar days of any such facility visit.

3.  Insurance on the Goods. (a)  When providing freight management services, Audit will (1) as to Less than Truckload Services (LTL), arrange insurance on the Goods which covers the declared value of the Goods while the Goods are in transit; (2) as to Full Truckload Services (FTL), select Third Parties which have certificates of insurance showing liability insurance coverage limits for loss or damage to cargo up to $100,000, and, if the value of the Goods exceeds $100,000, will only select Third Parties with higher insurance limits up to the value of such Goods when agreed to in writing by the Customer prior to shipment and subject to higher freight rates. (b) When providing warehouse management services, Audit will, upon request and for a separate charge for the premium, Audit arrange insurance on the Goods which covers the declared value of the Goods while in storage.   (c)  Customer agrees Audit assumes no agency role for the Customer in procuring insurance coverage; such coverage shall be governed exclusively by the terms of the insurance policy issued by the insurance company; and the insurance company is solely responsible for the payment of insurance claims.  Customer is responsible for any and all deductibles, when applicable. 

4.  Claims.  All claims against Audit for a potential or actual loss must be made in writing and received by Audit within ninety (90) days of the event giving rise to claim; the failure to give Audit timely notice shall be a complete defense to any suit or action commenced by Customer.  Concealed damage must be submitted in writing to Audit no later than five (5) business days after delivery of the Goods. Audit agrees to reasonably assist the Customer in filing and negotiating claims against Third Parties; however, timely payment of Audit’s invoices to the Customer is a condition precedent to such assistance. 

5.  Limited Liability.  (a) Goods Covered by Insurance.  Customer agrees that it will accept the amount paid by the insurance Audit arranges per Section 3 of these Terms as the full and final satisfaction of any claims for physical loss, damage or delay to the Goods, and shall hold Audit harmless from such claims.  (b) Goods not Covered by Insurance.  If Customer has not requested and purchased insurance for the Goods for which Audit has provided freight or warehouse management services, Customer agrees that Audit’s maximum liability for physical loss, damage or delay to the Goods shall be $.60 per pound.  (c) All Other Claims.  The maximum liability of Audit to the Customer for damages for any and all other causes of action whatsoever, and the Customer’s maximum remedy, regardless of the form of action, whether in contract, tort or otherwise, shall be limited to the total management fees invoiced by Audit to the Customer for the Services at issue. EXCEPT AS MAY BE SET FORTH HEREIN, AUDIT MAKES NO EXPRESS OR IMPLIED WARRANTIES REGARDING ITS SERVICES.  IN NO EVENT SHALL AUDIT BE LIABLE FOR ANY LOST PROFITS, BUSINESS INTERRUPTION OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THE SERVICES PROVIDED TO THE CUSTOMER, EVEN IF AUDIT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

6.  Payment of Services.  (a)  Project Services.  Where Audit provides freight or warehouse management services as part of a project, Audit will itemize charges for all Third-Party freight, warehousing, cargo insurance premiums and other charges.  Audit will separately charge Customer an agreed flat management fee in accordance with an agreed Proposal, Purchase Order and/or Scope of Work.  Reasonable, documented reimbursable expenses will be billed at cost.  Reimbursable expenses include but are not limited to; kick-off meetings, job­site visits, check stock, small package shipments, etc., as requested and approved in advance by the Customer.  Audit agrees to pre-audit freight and warehouse charges to ensure accurate costs by verifying correct weight, class, surcharges, and insurance expenditures.  (b)  All other Services will be invoiced without itemization of charges, apart from insurance.  Customer has the right to audit Audit’s agreements with Third Parties and all Third-Party invoices for the Services provided.  Unless otherwise separately agreed in a Proposal, Purchase Order or Statement of Work, all Audit invoices for Third Party costs, Reimbursable Expenses and management fees shall be net thirty (30) days from the date of the invoice issued by Audit.  Invoices submitted by Audit to Customer are deemed conclusively accepted and approved and fully payable on the terms contained therein unless disputed in writing by Customer within ten (10) business days of Customer’s receipt thereof.  Any amount remaining unpaid after thirty (30) days shall accrue interest at a rate equal to the lesser of: (a) 1.5% per month of the average outstanding balance due; or (b) the highest rate allowed by law.  The Customer agrees to pay Audit’s invoices without reduction or deferment on account of any alleged claim, counterclaim or set-off it believes it has for cargo loss, damage, or theft, or for any other alleged act or omission of Audit. 

7.  Project or Warehouse Account.  Audit will establish a non-interest bearing Project Account and/or Warehouse Account on Customer’s behalf to pay freight, warehousing and other Third-Party invoices within thirty (30) business days of the commencement of Services.  Customer’s payments of Third-Party costs will be placed into such account(s) and drawn out by Audit as needed.  Any amount remaining in such account(s) upon completion of the Services shall be refunded to Customer.  Customer agrees to indemnify, defend, and hold harmless Audit against all third-party claims and liability associated with the Project or Warehouse Account.

8. Credit.  Payment terms and credit limits are subject to credit approval at the sole and absolute discretion of Audit, which shall be determined periodically and after submission of a Credit Application and may be revised or revoked if there is a change in Customer’s payment history or financial condition. Customer grants Audit the right to perform such credit history and background searches as Audit deems necessary and will submit a financial statement if requested.  Audit will establish a line of credit for Customer after a credit profile is submitted and a history of on-time payments are completed. Any line of credit shall not to exceed $50,000.00.

9. Lien on Customer’s Goods.  The Customer agrees that Audit has a general, contractual lien on all Goods which are the subject of Services rendered by Audit while those Goods are in possession of Audit or any Third Party for any accounts receivable owed by the Customer to Audit arising from the specific Services for which the lien is asserted, and/or arising from any previous Services provided.  If Audit elects to hold any Goods based on these lien rights, it will provide written notice of that election to the Customer, and Customer agrees Audit has the authority to direct Third Parties to hold shipments based on these lien rights and to arrange unloading and storage at Customer’s expense.  If the Customer fails to make payment arrangements or post security to Audit’s satisfaction within thirty days of such notice, Audit will have the right to sell the Goods at private or public sale or auction and will remit to the Customer any net proceeds after the sale which exceeds the total amount owed (including any accrued unloading, loading and storage charges).  The Customer shall provide notice to any other parties having an interest in the Goods of these lien rights and of any exercise of those rights by Audit.

10. Confidentiality.  All documents prepared and exchanged between Audit and Customer will be considered confidential and shall be kept in strictest confidence as confidential or proprietary information. 

11. Relationship of the Parties.  Audit shall be deemed to be an independent contractor and shall not be considered an employee, agent, servant, joint venturer, or partner of the Customer.

12. Force Majeure.  In the event that either Party is prevented from performing its obligations under this Agreement because of an occurrence beyond its control and arising without its fault or negligence, including without limitation, war, riots, rebellion, acts of God, pandemics, public health emergencies, quarantines and business restrictions by public health authorities and other acts of lawful authorities, fire, strikes, lockouts or other labor disputes, such failures to perform shall be excused for the duration of such occurrence. Whenever possible, in the event of a force majeure event, the affected party shall promptly notify the other party in writing, stating the reasons for the inability to comply with the provisions of this Agreement, and the expected duration of the force majeure event.  Neither party shall be liable for any delays or failures in performance due to circumstances beyond its control.

13. Indemnification.  The Customer agrees to indemnify, defend, and hold Audit harmless from and against any and all claims and/or liabilities, including, but not limited to attorney’s fees and costs, arising from the Customer’s acts or omissions in relation to the Shipment, and arising from the manner in which the Shipment was prepared and/or packed for Shipment. 

14. Cancellation.  Customer may terminate Services by providing forty-five (45) days written notice to Audit, and after paying in full all undisputed outstanding charges. Audit may terminate Services by providing Customer (a) forty-five (45) days written notice, or (b) forty-eight (48) hours written notice of stop work or termination should Customer be more than forty-five (45) days or more late in payment of Audit’s invoices for any Services provided by Audit to Customer.      

15. Applicable Law, Venue and Time for Suit.  These Terms and Conditions of Service shall be governed by Colorado law without the application of its conflict of laws principles.  With the exception of any action by Audit to collect of any payment due Audit, the parties agree to arbitrate all disputes with the American Arbitration Association, utilizing Construction Industry Arbitration Rules currently in effect.  Any cause of action against Audit relating to or arising out of the Services Audit provides to the Customer will not be valid unless such the demand for arbitration is made within one year of the date of the loss. Any suit to collect any payment due Audit or to enforce a judgment against the Customer may be filed in any jurisdiction where the Customer has assets.  Audit shall be entitled to recover its courts costs and reasonable attorney's fees from the Customer in any action for collection of any payment due to Audit, or in any other action or arbitration in which Audit prevails in the enforcement of these Terms.

16.Integration and Rejection of Orders with Contrary Terms.  These Terms set forth the entire agreement between the parties with respect to the Services, and supersede all prior agreements, representations, warranties, statements, promises, and understandings of the parties, written or oral, except as stated herein.  If the parties both execute a separate Master Services Agreement or other signed bilateral contact regarding the Services, then the terms of such agreement or contract shall prevail in the event of a conflict with these Terms.  These Terms may be periodically updated on Audit’s website at https://www.auditlogistics.com/.

17.  Severability.The provisions set forth in these Terms are severable, and if any particular provision should be held invalid, unenforceable, or illegal by a court having competent jurisdiction, the remainder of these Terms shall not be affected and shall be construed as if such invalid, unenforceable or illegal provision(s) was (were) omitted.                 

1172 Century Drive, Suite 245 Louisville, CO 80027 | Phone: 303-951-9000

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