Terms and Conditions
Superhero Freight Services
TERMS AND CONDITIONS
SUPERHERO FREIGHT SERVICES
THESE TERMS AND CONDITIONS (“AGREEMENT”) GOVERN YOUR ACCESS TO AND RECEIPT OF THE SERVICES BY SUPERHERO FREIGHT. BY ACCESSING AND RECEIVING THE SERVICES, YOU AGREE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS CONTAINED HEREIN. IF YOU DO NOT WISH TO BE BOUND BY THIS AGREEMENT, PLEASE LEAVE THE SITE BY CLICKING HERE.
This Agreement is between you (“Member” or “You”) and Cunningham Global, Ltd, a United Kingdom Limited Company with its principal place of business at Forsyth House, Cromac Square, Belfast, Antrim, Northern Ireland, BT2 BLA on behalf of itself, its affiliates, and its managed and contracted entities (“Superhero Freight”). Throughout this Agreement, Superhero Freight and Member may be referred to individually as “Party” or collectively as “Parties”.
- ACCEPTANCE OF THE AGREEMENT
1.1 ACCEPTANCE OF THIS AGREEMENT. By using the Services, the Member is agreeing to be bound by this Agreement. If the Member is using the Services on behalf of an organization, Member agrees to this Agreement on behalf of that organization and represents it has the authority to agree to this Agreement on behalf of that organization.
1.2 CHANGES TO TERMS. Superhero Freight reserves the right to change this Agreement from time to time without notice to Member. Member's continued use of and receipt of the services after such modifications will constitute Member's acknowledgement of the modified agreement and Member's agreement to abide and be bound by the modified terms and conditions.
1.3 UPDATES. Superhero Freight is always evolving and the form and nature of the Services may change from time to time without notice to Members.
- SUPERHERO FREIGHT'S RESPONSIBILITIES
2.1 SERVICES. In consideration for Member's payment of the applicable Fees, Superhero Freight shall arrange for the transportation and care of Member's Goods in international and domestic transit (the “Services”). The term “Goods” means physical products intended for commercial distribution and includes Member's own private label products as well as third party Goods which Member is a distributing as part of Marketplace Superhero's Invasion program . Superhero Freight shall have sole and exclusive control over the manner in which it performs the Services. Superhero Freight may utilize such persons and/or entities as it deems necessary in connection with the Services including but not limited to third party customs brokers, air carriers, water carriers, rail carriers, motor carriers, or other transportation providers (“Subcontractors”).
2.2 USE OF SUBCONTRACTORS
2.2.1 Member understands and agrees that the Subcontractors are independent contractors with exclusive control over their respective employees, and are not agents, employees, or authorized representatives of Superhero Freight.
2.2.2 When Superhero Freight uses Subcontractors, Superhero Freight will take commercially reasonable efforts to ensure such Subcontractors shall (i) have such licenses and permits as are required by applicable Governmental Authority for the lawful provision of the sub-contracted services; and (ii) perform the Services pursuant to the requirements set forth in this Agreement. “Governmental Authority” shall mean any national, federal, state, local, or other government including but not limited to any departments, agencies, boards, commissions, bureaus, offices, subdivisions, ports, bodies, authorities, corporations, or other entities.
2.2.3 Superhero Freight shall at all times during the term of this Agreement be responsible for payments to such Subcontractors, including without limitation, freight charges and any other charges or compensation as required by applicable laws and regulations.
2.2.4 Superhero Freight shall not be liable for any action or inaction by Subcontractors or the agents thereof provided Superhero Freight exercises reasonable care in its selection of those Subcontractors. Superhero Freight shall not be liable for any delay or loss that occurs while a Subcontractor or its agents has control or custody of the shipment
2.3 ROUTES. Superhero Freight shall be entitled to, at its discretion and without notice to the Member, substitute any route, means, and procedures relating to the carriage of the Goods. Superhero Freight does not guarantee the use of any specific route, vessel, method of transport, or delivery date and may use multiple shipments or a single shipment to transport the Goods. Superhero Freight does not have a duty to use any route, means, or procedure directly necessary to ensure a prompt and direct delivery for the Goods. Superhero Freight shall not be liable any route, procedure, or means regarding the handling, transportation, delivery, or clearance of the shipment provided Superhero Freight exercises reasonable care in its selection of such routes, procedures, and means.
2.4 EXTENUATING CIRCUMSTANCES. Without prior notice to Member and without risk of liability, Superhero Freight or any Subcontractor performing the Services shall be entitled to terminate the Services, dispose of the Goods, store the Goods, transfer the Goods, sell the Goods, or unpack the Goods from their containers, in the following situations, regardless of the foreseeability:
2.4.1 The Services are adversely affected by an Act of God. “Act of God” means a wind storm, earthquake, fire, flood, war, crime, invasion, terrorism, or any other comparable act beyond the reasonable control of Superhero Freight and outside of any blame or fraud;
2.4.2 Any carrier by land, water, or air undertaking any part of the Services including, but not limited to, sub-carriers, bailees, inland carriers, connecting carriers, and sub-carriers, suspends service for any or all parts of the Services;
2.4.3 Member commences or becomes part of a bankruptcy, receivership, or insolvency proceeding or assigns any title, rights, or interest for the benefit of creditors;
2.4.4 Any third party asserts a legal right to the Goods that has not been contracted to take part in the Services;
2.4.5 The Goods are seized, confiscated, or detained by a Governmental Authority by judicial or non-judicial means;
2.4.6 There is a present or likely risk of loss, injury, delay, danger, or other hindrance to Superhero Freight, any third parties involved in performing the Services, the Goods, the means of transportation, or other property involved in the Services;
2.4.7 There is a present or likely risk that the performance of Services will be unlawful, impossible, impracticable, or unsafe in any way or it proves against the interest of either party to continue to perform under the Agreement.
In the event of one of the above circumstances, Superhero Freight shall promptly notify Member of the particular situation, the estimated duration of the situation, and the resulting effect of the situation on the performance in this Agreement.
2.5 NON-EXCLUSIVE. It is understood and agreed between the parties that this Agreement is non-exclusive and Superhero Freight shall be free to accept Goods from companies other than Member and Member shall be free to utilize logistics services from companies other than Superhero Freight.
2.6 WEB APPLICATION. As part of the Services, Member shall be granted a limited, non-exclusive, non-assignable, revocable right to use the Superhero Freight web application (“App”). All other rights in the App are reserved by Superhero Freight. Member's use of the App provided on an 'as is' basis and Superhero Freight makes no warranties, expressed or implied, and hereby disclaims and negates all other warranties including, without limitation, implied warranties or conditions of merchantability, fitness for a particular purpose, or non-infringement of intellectual property or other violation of rights in association with the App.
- MEMBER'S RESPONSIBILITIES
3.1 CHARGES AND COSTS. Unless otherwise agreed to by the Parties in writing, Member shall pay any and all Fees in advance of the Services being performed. In the event that Superhero Freight agrees to extend credit to Member for any Fees, this extension shall not be a waiver by Superhero Freight of this provision. “Fees” means the applicable payments to be made by Member to Superhero Freight for the Services.
3.2 ACCURATE DATA AND INFORMATION. Member shall provide Superhero Freight with complete, accurate, and timely information regarding the Goods to be transported or stored. It is the sole responsibility of Member to review and verify any and all information and data filed on behalf of Member and to promptly inform Superhero Freight of any errors and omissions. Member shall indemnify, defend, and hold harmless Superhero Freight and its officers, employees, agents, subcontractors and insurers, against all claims, liabilities, losses, fines, reasonable attorney fees and costs and other expenses arising out of or caused by incomplete, inaccurate and/or untimely information being provided by Member to Superhero Freight regarding the Goods to be transported or stored.
3.3 REPRESENTATIONS AND WARRANTIES. Member represents and warrants that it has all right, title, and interest in and to the Goods and that the Goods are not infringing of any third party's intellectual property rights. In the event Superhero Freight is accused of infringement, Member shall indemnify, defend, and hold harmless Superhero Freight and its officers, employees, agents, subcontractors and insurers, against all claims, liabilities, losses, fines, reasonable attorney fees and costs and other expenses arising out of or associated with such claim.
3.4 HAZARDOUS MATERIAL TRANSPORTATION. Member shall provide Superhero Freight with advance written notice of the proposed shipment of any hazardous material, as that term is used and defined in the Hazardous Material Transportation Act, 49 U.S.C. § 5101, et seq. or any other applicable statute, regulation or other law (“Hazardous Material”). Prior transportation of the Hazardous Material, Member shall provide Superhero Freight with a current Material Safety Data Sheet or any other Hazardous Material document required to be prepared and provided by Member or its agent for the Hazardous Material shipment. Member shall indemnify, defend, and hold harmless Superhero Freight and its officers, employees, agents, subcontractors and insurers, against all claims, liabilities, losses, fines, reasonable attorney fees and costs and other expenses arising out of or related to exposure to or release of any Hazardous Material, including without limitation, fines or expenses relating to the removal or treatment of Hazardous Material or any other remedial action pertaining to the Hazardous Material under federal, state, or foreign law, if: (i) Member fails to provide the notice required by this provision prior to tendering the Hazardous Material; (ii) the contact, exposure, or release resulted from the improper packaging or loading or other acts or omissions of the Member, its employee, or agents; or (iii) the contact, exposure, or release occurred subsequent to the transport or storage of the Hazardous Material by Superhero Freight.
4.1 GENERALLY. By using a bank account or credit card to pay for the Services, Member authorizes Superhero Freight to debit any specified and undisputed amounts to cover Member's purchases. Member further agrees to authorize its financial institution to deduct those specified and undisputed amounts to cover Member's purchases.
4.2 RETURNED PAYMENT. In the event a payment is returned, Member authorizes Superhero Freight to charge a one-time charge to Member's bank account to cover the return fee provided the fee is reasonable unless agreed to otherwise in a signed writing.
4.3 LEGAL ACTION. Superhero Freight is entitled to initiate a legal action or proceeding to collect any overdue payments or disputes over any money owed to Superhero Freight. Member shall be responsible for any costs arising from such action or proceeding, including any reasonable attorneys' fees. The costs recoverable by Superhero Freight shall include the lesser of a one and a half percent (1.5%) per month late payment fee on the outstanding balance or the highest rate permitted by law.
4.4 INQUIRIES; ERRORS. Member shall refer to Superhero Freight first regarding any issues or erroneous information involving invoices, payments, or transactions. All inquiries may be directed toward Superhero Freight via email to [email protected]
4.5 NO OFFSET. Member shall not off-set any claims against Fees without written permission by Superhero Freight.
4.6 CONFISCATED GOODS. In the event any Goods are confiscated or detained by a Government Authority, this event shall not excuse or diminish Member's responsibility or liability to promptly pay any and all charges or costs.
4.7 QUOTATIONS NOT BINDING. The parties understand that additional services and charges other than those initially set forth herein may periodically arise. Any quotation for any charges related to the Services provided by Superhero Freight to Member, including, but not limited to, duties, fees, and insurance premiums, shall not be binding upon Superhero Freight unless agreed to in writing and signed by both parties. Such quotations are subject to change without notice. Unless the quotation and the written acceptance clearly indicate that the services provided and the applicable rate are to be on an extended basis, the quotation shall only apply to the immediate services provided. Services provided pursuant to quotations will be subject to the terms of this Agreement.
4.8 GENERAL LIENS.
4.8.1 In the event Member owes any amount to Superhero Freight on a shipment(s) and Superhero Freight possesses or controls, either actually or collectively, the aforementioned shipment(s), Superhero Freight may, and Member authorizes Superhero Freight to, execute a general and continuing lien on that shipment and/or any prior shipments under the control or in the possession of Superhero Freight.
4.8.2 In the event that Superhero Freight executes a lien on Member, Superhero Freight shall provide Member with written notice of the amount owed plus other related charges such as for ongoing storage of the shipments on which the lien is claimed. Pursuant to such a lien, it is the responsibility of Member to notify any and all parties with any interest in the shipment on which the lien is claimed and of Superhero Freight's rights to execute the lien.
4.9 RIGHT TO SELL GOODS. Superhero Freight shall be entitled to sell Member's Goods at public or private auction provided that Member does not satisfy the payment of all amounts owed plus current or future storage charges in full by cash or credit within thirty (30) days upon receipt of notice. In the event that Superhero Freight sells any shipment(s) upon which a lien is claimed, Member is entitled to any remaining net proceeds.
4.10 OVERDUE ACCOUNTS. In the event any invoice issued to Member is overdue by more than seven (7) days, Superhero Freight may suspend all Services until Member's account has been brought current.
4.11 CBM IS NON-REFUNDABLE. As part of the Services, Member shall have the opportunity to purchase cubic meters (“CBM”) in Superhero Freight's containers. Any such purchase by Member is final and will not be refunded by Superhero Freight. Should Member wish to transfer CBM to a third party, Member may request Superhero Freight do so and Superhero Freight may assist in such transfer provided Member pays any and all transfer fees required by Superhero Freight.
6.1 TERM. The term of this Agreement shall commence upon Member purchasing the Services and shall continue until otherwise terminated hereunder.
6.2 TERMINATION FOR CAUSE. If either Party shall fail to perform any of the covenants or obligations of performance and payment imposed upon it under and by virtue of this Agreement (except where such failure is excused under other provisions of this Agreement), the other Party shall give the defaulting Party written notice, stating specifically the cause for which the notice of default is given. If, within a period of thirty (30) days after such notice, the defaulting Party has not removed and remedied the default, then the Party not in default may cancel this Agreement without any further obligation by immediately furnishing the defaulting party a notice of cancellation.
6.3 TERMINATION FOR CONVENIENCE. Superhero Freight may terminate this Agreement without cause by providing Member with ten (10) days' prior advance notice of its intent to terminate.
6.4 EFFECT OF TERMINATION. Upon termination or expiration of this Agreement, Superhero Freight will provide Member with an invoice for all then-due or past-due Services Superhero Freight has not yet received payment, and Member agrees to pay any undisputed amounts set forth in such invoice within thirty (30) days. After Member's payment is received, Superhero Freight shall arrange for or provide shipment of such Goods to one or more destinations designated by Member as soon as reasonably practical.
- RISK OF LOSS; TRANSPORTATION DOCUMENTS
7.1 RISK OF LOSS. It is understood and agreed between the parties that, unless otherwise expressly agreed to by Superhero Freight in this Agreement, Superhero Freight shall not assume the risk of loss for any of Member's Goods.
7.2 TRANSPORTATION DOCUMENTS. Each shipment under this Agreement shall be evidenced by one or more transportation documents, which may include, but are not limited to, bills of lading, air waybills, ocean bills of lading, warehouse receipts manifest, or any other documents purporting to control the custody and/or movement of the Goods (collectively, the “Transportation Documents”) showing the kind, quantify and condition of the Goods received and delivered by Superhero Freight at the loading and unloading points, respectively. Except as provided herein, to the extent any term or condition of such Transportation Documents conflict in any way with any term or condition of this Agreement, this Agreement shall govern.
- LOSS OR DAMAGE OF GOODS
8.1.1 AIR TRANSPORTATION. Superhero Freight shall ensure that indirect and direct air carriers assume liability to international air freight in accordance with the rules of the Warsaw Convention, as amended or altered by any applicable protocol adopted or ratified by the United States, and for any United States domestic shipments in accordance with common carrier liability. Unless otherwise provided for by law or international convention, all claims arising out of air transportation shall be properly served on Superhero Freight no more than two (2) years from the date of the first loss.
8.1.2 OCEAN TRANSPORTATION. Superhero Freight shall ensure that ocean carriers assume liability in accordance with Carriage of Goods by Sea Act (“COGSA”) 46 U.S.C. § 1300 et seq. In addition, COGSA shall apply with respect to the inland surface transportation of any Goods transported under an ocean bill of lading with a Himalaya clause, in which case the liability of Superhero Freight and any of its Subcontractors, including any motor carrier and rail carrier, shall be limited to $500 per package or per customary freight unit unless a higher valuation is declared on the face of the ocean bill of lading win which case the liability shall be the actual amount of the loss or damage not to exceed the value declared on the ocean bill of lading. In the event a court of competent jurisdiction determines that COGSA is inapplicable to such inland transportation, then the liability of any inland carrier for any loss or damage occurring to the Goods within the United States shall be as set forth in 49 U.S.C. §§11706 and 14706. Unless otherwise provided for by law or international convention, all claims arising out of ocean transportation shall be properly served on Superhero Freight no more than one (1) year from the date of the first loss.
8.1.3 MOTOR CARRIER AND RAIL CARRIER TRANSPORTATION. Except as otherwise set forth in Paragraph 8.2 above, Superhero Freight shall ensure that, with respect to any portion of services provided within the United States, motor carrier and rail carrier assume liability as a common carrier (i.e. Carmack Amendment liability under 49 U.S.C. § 14706) for loss or damage of any and all of the Goods while under such carrier's care, custody or control, notwithstanding that a bill of lading, circular or tariff of a Subcontractor may state otherwise, subject to the standard exceptions to common carrier liability. For any portion of the Services provided outside the United States, Superhero Freight shall insure that motor carriers and rail carriers assume liability for loss or damage in accordance with the laws governing said Services. Unless otherwise provided for by law or international convention, all claims arising out of motor carrier and rail carrier transportation shall be properly served on Superhero Freight no more than one (1) year from the date of the first loss.
8.1.4 IMPORT ENTRY. Superhero Freight shall not be liable for any delay caused by customs or port authorities. Any costs incurred as a result of the Goods being held or detained by customs or port authorities shall be the sole and exclusive responsibility of Member. Member shall indemnify, defend, and hold harmless Superhero Freight and its officers, employees, agents, subcontractors and insurers, against all claims, liabilities, losses, fines, reasonable attorney fees and costs and other expenses arising out of or related to the delays caused by customs or port authorities. Unless otherwise provided for by law or international convention, all claims arising out of the preparation and/or submission of any import entry shall be properly served on Superhero Freight no more than sixty (60) days from the liquidation of the entry.
8.1.5 OTHER CLAIMS. Unless otherwise provided for by law or international convention, any and all other claims shall be properly served on Superhero Freight no more than one (1) year from the date of the first loss.
8.2 SUPERHERO FREIGHT LIABILITY
8.2.1 DIRECT DAMAGES. TO THE EXTENT PERMITTED BY LAW, THE TOTAL, CUMULATIVE LIABILITY OF SUPERHERO FREIGHT ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL OR EQUITABLE THEORY, SHALL BE LIMITED TO ONE THOUSAND UNITED STATES DOLLARS ($1,000.00). THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT ENLARGE THIS LIMIT. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO: (I) MEMBER'S OBLIGATION TO PAY FOR THE SERVICES; OR (II) LIABILITY RESULTING FROM MEMBER'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
8.2.2 INDIRECT DAMAGES. SUPERHERO FREIGHT SHALL NOT BE LIABLE TO MEMBER FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES UNDER ANY CIRCUMSTANCES AND REGARDLESS OF ANY FORESEEABILITY OF SUCH LOSS.
8.2.3 DISCLAIMER. EXCEPT FOR THE WARRANTIES EXPRESSLY STATED IN THIS AGREEMENT, TO THE MAXIMUM EXTENT ALLOWED BY LAW, SUPERHERO FREIGHT DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING WARRANTIES ARISING UNDER STATUTE, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTIES ARISING FROM USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE. MEMBER ACKNOWLEDGES THAT IN ENTERING THIS AGREEMENT IT HAS NOT RELIED ON ANY PROMISE, WARRANTY OR REPRESENTATION NOT EXPRESSLY SET FORTH HEREIN.
8.3 CLAIMS PROCEDURES
8.3.1 NOTICE OF DAMAGED OR LOST GOODS. Upon learning of any lost, damaged, or destroyed Goods, Member will promptly notify Superhero Freight.
8.3.2 INVESTIGATION AND REPORT. Superhero Freight shall promptly investigate Member's claim. Superhero Freight will pay each claim, decline payment with explanation, make a compromise settlement offer, or reasonably request additional information in writing, within ninety (90) days after the receipt of the claim by Member.
8.3.3. ACTION AT LAW. Any action at law to recover any claim shall be instituted by Member against Superhero Freight no later than one (1) year after Superhero Freight has been provided with noticed of Member's claim.
- RELATIONSHIP BETWEEN THE PARTIES
9.1 SUPERHERO FREIGHT AS AGENT. With respect to any interactions Superhero Freight may have with any Government Authority, Superhero Freight shall be an agent acting on behalf of Member. These interactions include, but are not limited to, import security filing services, the entry and release of goods, post entry services, the securing of export licenses, and the filing of export documentation.
9.2 NO PARTNERSHIP. Nothing in this Agreement shall be construed to create a partnership, joint venture, or agency relationship between Superhero Freight and Member. Neither party shall have any right or authority to assume or create any obligation of any kind expressed or implied in the name of or on behalf of the other party.
- INDEMNIFICATION AND INSURANCE
10.1 INDEMNIFICATION. Member shall indemnify, defend, and hold harmless Superhero Freight and its officers, employees, agents, subcontractors and insurers, against any and all claims, liabilities, losses, fines, reasonable attorney fees and costs and other expenses arising out of or related to this Agreement.
10.2 INSURANCE. Each Party shall maintain insurance from reputable insurance companies so that all costs and liabilities set out under this Agreement shall be sufficiently and wholly covered.
- GENERAL PRINCIPLES.
11.1 ENTIRE AGREEMENT; AMENDMENTS. This Agreement constitutes the entire agreement between the Parties and supersedes any and all prior proposals, agreements, oral representations, or understandings with respect to this Agreement or its subject matter. Any future modification, representation, agreement, understanding, or waiver will be binding only if in writing signed by the parties sought to be bound.
11.2 SEVERABILITY. Both Parties agree that if any provisions, rights or obligations under this Agreement are deemed illegal, void, or unenforceable, all other provisions, rights, and obligations shall remain in effect.
11.3 SUCCESSORS AND ASSIGNS. This Agreement shall be binding and for the benefit of both parties and their respective successors and permitted assigns. Neither party may assign this Agreement without the written consent of the other party, except Superhero Freight may assign this Agreement without the Member's prior written consent as part of a merger, consolidation, sale, or transfer of all or substantially all Superhero Freight's assets.
11.4 WAIVER. With respect to this Agreement, performance of and compliance with any term of this Agreement may be waived if such waiver is in writing and signed by each Party. Any written and approved waiver does not constitute any additional waiver for any current or future obligation under this Agreement. Any excused breach that is appropriately written and approved of does not constitute a waiver of any subsequent breach.
11.5 SURVIVAL. The following Sections shall survive expiration or termination of this Agreement: 3.1 (CHARGES AND COSTS), 3.3 (REPRESENTATIONS AND WARRANTIES), 4 (PAYMENTS), 7 (RISK OF LOSS; TRANSPORTATION DOCUMENTS), 8.2 (LIMITATION OF LIABILITY); 8.3 (CLAIMS PROCEDURES), 9 (RELATIONSHIP BETWEEN THE PARTIES), and 10 (INDEMNIFICATION AND INSURANCE).
11.6 GOVERNING LAW. The Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with English Law and the parties irrevocably submit to the non-exclusive jurisdiction of the English courts.