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a. “Additional Services” refers to upgrades and additional services ordered by the Customer, such as vehicle top-loading, guaranteed pick-up date, covered transport, additional personal belongings, etc.
b. “Bill of Lading” is a document provided by the Carrier to the Customer at delivery, documenting the details of the Shipment and its condition, Point of Origin, Destination, and other details regarding the Order. The Bill of Lading can serve as a receipt or a contract between the Carrier and Customer.
c. “Carrier” refers to a motor carrier of property, as defined at 49 U.S.C. §13102(14), duly licensed by the State and/or Federal Department of Transportation, or a carrier of goods by sea pursuant to 46 U.S.C. § 30701.
d. “Carrier Form” refers to a receipt, inspection report, Bill of Lading, shipping order, or similar document provided by the Carrier at Point of Origin and/or Destination.
e. “C.O.D.” means collect on delivery or payment on delivery.
f. “Customer” refers to the individual, company, or other entity, including its agents and representatives, ordering the transportation of the Shipment.
g. “Customer’s Agent” refers to an individual over the age of 18 designated by the Customer to act on the Customer’s behalf or as an agent.
h. “Destination” refers to the Shipment drop-off location designated by the Customer or as later modified by mutual agreement between Flagship and the Customer prior to delivery.
i. “Inoperable” refers to a state or condition in which a Shipment cannot function or be driven for any reason, including but not limited to its parts having been removed, altered, damaged, or deteriorated.
j. “Flagship,” “we,” “us,” or “our” refers to Flagship LLC, its affiliates, and subsidiaries. Flagship is a transportation broker as defined at 49 U.S.C. § 13102(2), arranging for the transportation of freight through third-party Carriers and is duly licensed by the Department of Transportation (DOT) and registered with the Federal Motor Carrier Safety Administration (FMCSA) under Docket No. MC-XXXXXX.
k. “Order” refers to the Customer’s request for Flagship to arrange for the transportation of the Customer’s Shipment.
l. “Order Confirmation” refers to any written confirmation from Flagship to the Customer confirming the Customer’s Order and other details, including but not limited to description of Shipment, Point of Origin, Destination, dates, and quoted rate.
m. “Point of Origin” refers to the Shipment pick-up location designated by the Customer or as later modified by mutual agreement between Flagship and the Customer prior to transport.
n. “Shipment” refers to the Customer’s property—an automobile or motorized vehicle—arranged for transportation in accordance with these TERMS.
a. Upon Customer’s request, Flagship will arrange for the transportation of Customer’s Shipment by Carriers subject to these TERMS. Flagship reserves the right, in its sole discretion, to refuse or cancel any Order at any time.
b. Flagship’s services are deemed completed when a Carrier has accepted Customer’s Order.
c. Customer understands and accepts that Flagship (i) operates only as a transportation broker, (ii) is not a motor carrier or transporter, and (iii) does not hold itself out as providing the transportation of property.
d. Customer expressly understands and agrees that Flagship never takes custody or possession of, transports, or handles Customer’s Shipment, or assumes any liability for the Shipment.
e. All ocean transportation arranged by Flagship will also be subject to the terms and conditions of the ocean Carrier’s bill of lading, tariff, schedules, rates, and rules. Ocean Carriers offer limited liability coverage for loss or damage, and Customer must inquire with the ocean Carrier about purchasing additional insurance.
f. Flagship shall provide Customer with an estimated pickup and estimated delivery date, however, delays may occur prior to, and/or during transport due to weather or road conditions, government regulations, mechanical problems, and other causes that are beyond Flagship’s control. Flagship cannot and does not guarantee delivery dates or times. Customer understands and accepts that Flagship is not responsible or liable for any losses or expenses caused by delays of any kind or for any reason.
a. Accuracy of Information. Customer understands and accepts that only Customer is responsible for ensuring the accuracy of all the details including the description of the Shipment (year, make, model, body style, trim, etc.), Point of Origin, Destination, fees, and special instructions in the Order Confirmation, and as applicable, on the Carrier’s Form, Bill of Lading, or other required documents. Any changes or corrections to the Shipment description or any other changes to an Order may result in additional fees or cancellation of the Order. Customer waives all claims against Flagship for any additional charges or cancellation if the Shipment does not match the Shipment listed in the Order Confirmation.
b. Shipment size and condition. Customer must inform Flagship about the Shipment’s size and condition at the time of booking and prior to the pick-up date. Customer understands and accepts that if the Shipment is or becomes inoperable during transit, or if the Shipment (i) is modified from the original equipment manufacturer (“OEM”) condition with features including but not limited to after market spoilers, lowered chassis, height modifications, etc., (ii) is oversized due to but not limited to dual or oversized wheels, extra-large tires, racks, lifted chassis (iii) is a large vehicle such as a limousine or a hearse, then the Carrier may charge additional fees to transport such Shipment or refuse to transport the Shipment altogether.
c. Preparing Shipment. Customer understands and accepts that Customer is responsible for preparing the Shipment for transportation. Customer must either secure or remove all loose parts, fragile accessories, low-hanging spoilers, etc. prior to shipment. Customer must remove all non-permanent, outside-mounted luggage and other racks prior to shipment. Shipment must be tendered to Carrier in operable condition with no more than a quarter tank of fuel. Customer understands and accepts that Customer is responsible for any damages, losses, and claims to the Shipment, other vehicles, and/or persons which are caused by any part of the Shipment that becomes loose or detached during the transport.
d. Alarm. Customer must disarm any alarm system installed in the Shipment or provide clear instructions for disengaging it to the Carrier. In the event such alarm is activated during the transit, and there are no keys or instructions to turn it off, Carrier may be forced to silence the alarm by any reasonable means available and without recourse by Customer.
e. Personal Property. Customer may leave one suitcase OR one bag carrying personal property which shall not exceed one hundred pounds (100 lbs.) and must be confined to the trunk or storage area of the Shipment. Customer must notify Flagship and Carrier of such personal property in the Shipment at the Point of Origin prior to loading of the Shipment. Customer understands and accepts that the Carrier has the right to reject any personal property in the Shipment if transporting such personal property is unsafe or violates the law. Customer is advised not to leave any negotiable instruments, legal papers, jewellery, furs, money, cash or currency, antiques, or any valuable articles in the Shipment. Customer understands and accepts that the Carrier and Flagship are not liable for personal items of any kind and value left in the Shipment, or for damage to Shipment caused by excessive or improper loading of personal items. If Customer puts personal property in the Shipment, Customer does so at Customer’s own risk.
f. Prohibited Items. Customer understands and accepts that Customer is expressly prohibited from loading any explosives, guns, ammunition, weapons, flammable products, live pets, live plants, any contraband, drugs or narcotics, alcoholic beverages, and or any illegal goods in the Shipment. Customer understands and accepts that upon discovery, such prohibited items and/or the Shipment may be confiscated or disposed of by law enforcement, or the Carrier and the Order may be cancelled in entirety without any remuneration or compensation to Customer and Customer will be solely responsible for any fees, fines, damages, or other liabilities arising from a violation of this Section.
g. Shipment by sea. Customer understands and accepts that no personal property of any nature or value and no illegal goods will be allowed in the Shipment for transportation by sea and Customer will ensure that the Shipment is completely empty except for OEM or factory-installed equipment. Customer is responsible for furnishing all required documents and paperwork required by U.S. and international customs authorities at the Point of Origin and Destination. Customer is responsible for any customs fees, duties, taxes, and other charges related to the shipment.
h. Payment Terms. Customer understands and accepts that if any payment to Flagship or Carrier is not able to be processed or is refused for any reason including insufficient funds or credit decline, a convenience fee of fifty dollars ($50.00) shall be assessed on each such transaction. Customer agrees that all deposits are non-refundable once the order has been assigned to a Carrier and the assignment of a Carrier constitutes services rendered. Customer agrees that Flagship reserves the right to pursue all available options for collections including all outstanding and any unpaid monies or debt related to the Order. Customer agrees to pay all costs for collections including, without limitation, reasonable attorneys’ fees, in addition to any unpaid monies or debt.
Customer agrees to indemnify, defend and hold Montway and our affiliates, and our and their employees, officers and directors harmless from and against any and all losses, liabilities, damages, payments, settlements, judgments, penalties, fines, expenses, (including reasonable attorneys’ fees), and costs, suits, actions and claims (whether actual, potential, threatened or pending), brought by any person or entity, including damages for injury or death of persons and/or damage to property, including real property and/or the environment, claim liability and damages, arising from the acts or omissions of Customer, its agents, employees or representatives.
a. Arbitration. Any dispute, controversy, or claim between the parties arising out of or relating in any way to these TERMS, an Order, Montway’s services or any other Customer engagement with Montway will be resolved by binding arbitration, rather than in court, except that Customer or Montway (1) must assert claims in small claims court if Customer’s or our claims qualify, and (2) bring suit in any court of competent jurisdiction to enjoin infringement or other misuse of intellectual property rights, including with respect to temporary restraining orders. The Federal Arbitration Act and federal arbitration law shall apply to this arbitration agreement.
There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award the same damages and relief as a court (including injunctive and declaratory relief or statutory damages).
At least thirty (30) days before beginning an arbitration proceeding, Customer must send an individualized letter personally signed by Customer and identifying Customer, Customer’s legal claims, the requested relief and requesting arbitration to Montway – 425 N. Martingale Rd., Suite 550, Schaumburg, IL 60173 by certified mail, Federal Express, UPS or USPS express mail (signature required). We will do the same; except in the event that we do not have a physical address on file for Customer, by electronic mail to the last known address. Except as otherwise stated herein, the arbitration will be conducted by the National Arbitration Mediation (“NAM”) under its rules, including for Consumer-Related Disputes. Customer and Montway also agree to delegate the issue of arbitrability to an arbitrator. Payment of administration and arbitrator fees will be governed by the NAM’s rules, except all of the filing fees will be paid by the filing party. If Customer is a prevailing party, Customer may seek reimbursement of Customer’s fees and costs. However, Montway may seek our attorney’s fees and costs if the arbitration finds Customer’s claims to be frivolous. There will be only one arbitrator, not a panel. Customer may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where Customer lives or at another mutually agreed location. Customer and Montway also agree that, if more than one dispute arises regarding the same or substantially similar issues, the parties’ respective claim(s) will be arbitrated in the order in which it/they were filed, except all claims shall be arbitrated within three (3) years. THIS ARBITRATION AGREEMENT WILL SURVIVE TERMINATION OF THESE TERMS.
b. Class Action Waiver. The parties each agree that any dispute resolution proceedings or lawsuits, whether in arbitration or in a court of law, will be conducted only on an individual basis and not in a class or representative action. Therefore, Customer waives all rights to bring claims on behalf of a class of persons; however, Customer may still bring an individual claim for public injunctive relief and in small claims court. Nothing in this provision, however, should operate to prevent the parties from settling claims on a class-wide basis or otherwise coordinating claims filed in arbitration.
c. Enforceability. If this arbitration agreement is invalidated in whole or part, the parties agree that the exclusive jurisdiction in the section below entitled “Governing Law; Jurisdiction” shall govern any claim in court arising out of or related to these Terms.
d. Jury Trial and Small Claims Court. If for any reason a claim proceeds in court rather than in arbitration, the parties each waive any right to a jury trial. The parties also both agree that Customer or Montway may bring suit in any court of competent jurisdiction to enjoin infringement or other misuse of intellectual property rights, including with respect to temporary restraining orders.
a. User Complaints. Under Cal. Civ. Code § 1789.3, California users are entitled to know that they may file grievances and complaints with the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs, in writing at 1625 North Market Blvd., Suite N 112, Sacramento CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210 or by email at dca@dca.ca.gov.
These TERMS shall be construed in accordance with Title 49, United States Code and be governed by the laws of the State of Illinois without regard to any conflict of law principles. Further, the parties agree to the jurisdiction of a state or federal court in the State of Illinois to resolve any dispute, claim, or controversy that relates to or arises in connection with these TERMS (and any non-contractual disputes and/or claims relating to or arising in connection with it) and that is not subject to mandatory arbitration under Section 12 above.
a. Nothing contained in these TERMS or Customer’s use of Montway’s services shall be construed to constitute either party as a partner, joint venturer, employee or agent of the other party, nor shall either party hold itself out as such. Neither party has any right or authority to incur, assume or create, in writing or otherwise, any warranty, liability or other obligation of any kind, express or implied, in the name of or on behalf of the other party, it being intended by both parties that each shall remain independent contractors responsible for its own actions.
b. Except as expressly set forth in these TERMS, Customer may not assign any rights hereunder without Montway’s prior written consent. These TERMS are binding on and inure to the benefit of the parties and their respective successors and permitted assigns.
c. If any provision of these TERMS shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that these TERMS will otherwise remain in full force and effect.
d. These TERMS supersede all prior written or oral representations and constitute the entire agreement between Customer and Montway and may not be changed by anyone except for Montway. Customer warrants that Customer has read these TERMS in their entirety and by continuing with the transaction, fully understands and agrees to them.
e. Customer waives any claims or defenses based in whole or in part on Customer not having read, not knowing, or not understanding these TERMS.
f. The failure of Montway to exercise or enforce any right or provision of these TERMS shall not operate as a waiver of such right or provision. Any waiver of these TERMS by Montway must be in writing and signed by an authorized representative of Montway.
g. Montway reserves the right to use Customer’s name and/or Montway name, logo, and trademarks and to identify Customer as a Montway customer, and for other similar marketing or promotional purposes on Montway’s websites and in other communications and collateral materials provided to with existing or potential Montway customers, partners, and investors. To decline Montway this right Customer must email privacy@montway.com stating that Customer does not wish to be used as a reference.
h. These TERMS constitutes the entire agreement between Customer and Montway and governs the terms and conditions of Customer’s use of our services, and supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between Customer and Montway with respect to such services. Notwithstanding the foregoing, Customer may also be subject to additional terms and conditions, posted policies (including but not limited to the Privacy Policy), guidelines, or rules that may apply when Customer uses Montway’s services.
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