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Standard Terms and Conditions for a Shipper

Effective 5/26/2009

STANDARD TERMS AND CONDITIONS APPLICABLE TO

horizon logistics, llc Transportation services for A shipper

These Standard Terms and Conditions apply to transportation services provided for a Shipper by Horizon Logistics, LLC d/b/a HRZ Logistics, LLC under a Shipper Rate Confirmation, or when they are otherwise incorporated into a document by express reference.

The following definitions apply:

(a) “3PL” means Horizon Logistics, LLC d/b/a HRZ Logistics, LLC, providing third-party logistics services (i) under one of the following FMCSA authorities held by 3PL: broker of property (non-household goods), freight forwarder (non-household goods), or motor carrier (contract carriage / non-household goods); (ii) as a rail intermodal marketing company (“IMC”); or, (iii) as an Indirect Air Carrier (“IAC”).

(b) “Shipper” means the Shipper named in the “Pricing Document” and includes any consignor, consignee, freight-payor, and/or other person having a beneficial interest in the shipment;

(d) “Pricing Document” means the Shipper Rate Confirmation (or other incorporating document) provided by 3PL to Shipper in response to Shipper’s request for transportation service that contains shipment details, pricing, and other information for the shipment.

1. 3PL Services. (a) 3PL shall provide or perform transportation services meeting Shipper’s request, as set forth in the Pricing Document executed by 3PL and Shipper. 3PL shall have and maintain relationships with transportation service providers, as necessary to fulfill Shipper’s request for service. 3PL’s services shall include: (i) arranging or performing transportation service; (ii) monitoring the real-time progress of the shipment; and (ii) making payment to any underlying transportation service providers. Shipper agrees and understands that when 3PL acts in the capacity of a broker of property or an IMC, 3PL shall arrange transportation service by engaging a motor carrier and/or rail carrier, and, in such instance, 3PL shall not perform the transportation services or operate motor carrier or rail equipment. (b) In the event that 3PL provides service for a shipment as an Indirect Air Carrier, then the terms and conditions set forth in 3PL’s air waybill and tariff available online at http://www.horizon-logistics.com/expedited/tariff/ shall apply to such shipment and take precedence over these Standard Terms and Conditions. (c) SHIPPER UNDERSTANDS AND AGREES THAT 3PL SHALL PROVIDE SERVICES AS A BROKER OF PROPERTY OR AN IMC, UNLESS THE PRICING DOCUMENT INDICATES THAT 3PL IS ACTING IN ANOTHER CAPACITY.

2. Requirements for Motor Carriers. 3PL shall require each motor carrier engaged by it to meet the following requirements, and 3PL shall itself meet these requirements on any occasion when 3PL actually performs motor carrier transportation: (a) transport the shipment to the specified destination with reasonable dispatch, as a contract carrier under 49 U.S.C. § 14101(b); (b) have all necessary operating authorities, including without limitation from the FMCSA, and a “Satisfactory” USDOT safety rating (or an “Unrated” safety rating for a motor carrier that has not undergone a compliance review); (c) maintain and provide its motor vehicles and equipment in good appearance, repair, and operating condition, and in proper configuration for the shipment; (d) comply with all laws, regulations, and rules applicable to its operations and the performance of services, including without limit those pertaining to motor vehicle safety; (e) have and maintain (i) commercial general liability insurance in an amount not less than one million dollars ($1,000,000.00); (ii) auto liability insurance in an amount not less than one million dollars ($1,000,000.00); (iii) cargo liability insurance in an amount not less than one hundred thousand dollars ($100,000.00); and (iv) workers compensation insurance meeting statutory requirements.

3. Compensation. For transportation services provided by 3PL, Shipper shall pay to 3PL the total amount of compensation set forth on the Pricing Document and any additional charges for accessorial or other services, as applicable. In the event of third-party billing, Shipper shall remain responsible, and liable to 3PL for all payments due on the shipment, and shall pay such monies to 3PL immediately upon written demand, if the third-party fails to remit payment within the time allowed under 3PL’s invoice.

4. Payment. (a) 3PL shall invoice Shipper (or the named third-party) promptly for amounts due 3PL for services provided, which shall cover all charges to be paid by 3PL to any underlying service provider. Shipper shall, upon receipt of an invoice, make payment to 3PL within twenty-one (21) days without any offset or deduction. In the event that a service provider makes a claim for undercharges, or additional charges, including without limitation accessorial charges, and such claim is determined by 3PL to be valid, then 3PL, in its discretion, may require Shipper to pay additional monies owed, and Shipper shall pay such monies. In the event of third-party billing, Shipper shall cause the named third-party to make payment within the time allowed under 3PL’s invoice, and otherwise shall be liable to 3PL as provided in Section 3, above. (b) Shipper shall have no right to withhold, in whole or in part, compensation due 3PL, and shall not undertake to make payment of any 3PL invoice directly to an underlying service provider, unless expressly authorized to do so in writing by 3PL.

5. Payment of Service Providers. 3PL shall remit payments to underlying service providers, and, use reasonable efforts to make such service providers waive any and all rights against Shipper, its consignees, consignors, and customers for freight and other charges related to transportation services.

6. Loss or Damage. (a) 3PL’s liability (if any) to Shipper for loss, damage, misdelivery, or delay to any shipment occurring between the time of pick-up at origin and the time of arrival at destination is governed by, and subject to the conditions, exclusions, and limitations of liability set forth in this Section 6 and Section 7, below:

(i) Brokerage or IMC operations: on any occasion when 3PL arranges transportation of a shipment as a broker of property or AS an IMC, including without limitation co-brokerage, 3PL shall have no liability to Shipper for loss, damage, misdelivery, or delay unless Shipper proves that the loss, damage, misdelivery, or delay was proximately caused by 3pl’s negligence in selecting the carrier. This disclaimer and exclusion of liability for 3PL’s brokerage and IMC operations applies to Less-Than-Truckload (“LTL”) shipments and Truckload (“TL”) shipments, and any other shipment tendered hereunder.

(ii) Motor Carrier or Surface Freight Forwarder operations: on any occasion when 3PL provides transportation of a shipment as a motor carrier or a surface freight forwarder, including without limitation any occasion when 3PL subcontracts or interlines A shipment to another motor carrier, 3PL shall be liable to shipper as provided under 49 U.S.C. § 14706 (the Carmack amendment), except that 3PL’s liability shall be LIMITED TO the lesser of (A) The actual value of the shipment; (B) the lowest amount allowed by the subcontracted or interlineD carrier in accordance with such carrier’s applicable limitation of liability; or (C) $2.00 per pound.

(iii) Freight forwarder operations (noncontiguous domestic trade): on any occasion when 3PL provides transportation of a shipment by oR with a water carrier (water only or rail/motor with water) in the noncontiguous domestic trade as a freight forwarder, 3pl shall be liable to shipper as provided under 46 u.s.c. § 30701 (the Carriage of goods by Sea Act) except that 3pl’s liability shall be limited to the lesser of (A) the lowest amount allowed by the underlying water carrier determined in accordance with such water carrier’s applicable limitation of liability as contained in its common carrier tariff effective on the date of shipment; (b) the actual value of the shipment; or, (c) $1,000.00 per package.

(b) 3PL shall have no liability to Shipper for any loss, damage, misdelivery, or delay to a shipment, which is related to (i) negligence or willful misconduct of Shipper, or Shipper’s mis-description of the goods; (ii) inherent vice of the shipment, (iii) natural shrinkage of the shipment, or (iv) Act of God or public enemy.

(c) In addition to and without limitation of the conditions, exclusions and limitations set forth herein, Shipper agrees that 3PL’s liability shall not under any circumstances exceed one hundred thousand dollars ($100,000.00) per occurrence and that 3PL shall have no liability for special, incidental, punitive, or consequential damages however caused.

(d) MEXICO OPERATIONS: Shipper agrees that 3PL and/or any underlying service provider shall have no liability whatsoever for any loss, damage, misdelivery, or delay of a shipment arising in connection with, or related to (i) operations or services provided or performed in Mexico, or (ii) drayage operations along the Mexico-United States border.

(e) Shipper must provide advance written notice to 3PL on any occasion when the value of the tendered shipment is in excess of $100,000. In order to obtain coverage for loss or damage beyond that provided herein, Shipper must provide advance written notice to 3PL, including the desired amount of coverage and the value of the shipment, so that 3PL may make arrangements with its insurance carriers. If additional coverage requires payment of a higher rate or a premium, then 3PL shall not book the shipment, unless and until Shipper has agreed in writing to pay the higher rate or premium to 3PL subject to a defined liability limitation. In the absence of a written agreement for additional coverage, all of the conditions, exclusions, and limitations shall continue to apply.

7. Claims. (a) Shipper must submit any claim relating to loss, damage, misdelivery, or delay to 3PL in writing, supported by relevant shipping documents. Any claim for loss or damage must be submitted within nine (9) months of the date of delivery, and any claim for misdelivery or delay must be submitted within nine (9) months of the date on which delivery reasonably should have been made. Failure to submit a timely claim shall constitute a waiver of such claim, and shall be grounds for denial. In order to ensure timely presentation of a claim for loss or damage, Shipper shall inspect the shipment, or cause the shipment to be inspected, promptly upon delivery, and shall record, or have recorded, the results of such inspection. In the event the inspection reveals loss or damage to the shipment, then Shipper shall transmit an initial notice of the loss or damage to 3PL within fifteen (15) days of the inspection.

(b)(i) For a claim arising from transportation arranged by 3PL as a broker of property or an IMC (except for a claim alleging negligent selection), 3PL may assist Shipper in preparing and/or presenting Shipper’s claim to the underlying motor or rail carrier. However, such assistance may be provided at 3PL’s sole discretion, and by undertaking such efforts, 3PL shall not incur, or accept, or be deemed to accept any liability for the claim, and 3PL shall have no liability whatsoever to Shipper for any missed deadlines for claim submission, and/or the expiration of any time period for filing suit. (ii) For a claim arising under 6(a)(ii) or (iii), above, 3PL shall pay, deny, or offer to settle a timely claim, in writing, within ninety (90) days of receipt.

(c) Shipper shall have no longer than two (2) years from the date of shipment pick-up to bring a lawsuit or civil action against 3PL for loss, damage, misdelivey, or delay, or negligent selection; provided that failure to submit a timely written claim under subsection (a) above, shall be an absolute bar to commencing a lawsuit or civil action against 3PL.

(d) If 3PL pays or settles any claim, then Shipper agrees as a condition of such payment or settlement to assign its rights in such claim to 3PL in writing in a manner acceptable to 3PL, and Shipper shall cooperate with 3PL in seeking reimbursement from any underlying service provider.

8. Authority. 3PL represents and warrants that it is registered with the FMCSA in Docket Nos. MC-620507 and FF-7830, which authorize it to operate as a motor carrier, broker, and freight forwarder of property, except household goods, and holds approval from the U.S. Transportation Security Administration (IAC No. WE0901012) for purposes of operating as an Indirect Air Carrier. 3PL shall obtain such State permits, or registrations, as may be applicable.

9. Compliance with Laws. (a) 3PL shall comply with all laws, rules and regulations applicable to the service it provides, including without limitation the regulations of the FMCSA. (b) Shipper shall comply with all laws, rules, and regulations applicable to tendering and/or preparing freight for transportation, including without limitation laws, regulations, and rules applicable to hazardous materials shipments.

10. Hazardous Materials. Shipper shall provide forty-eight (48) hours advance notice to 3PL in the event that any shipment qualifies as a shipment of hazardous materials under 49 U.S.C. § 5101-5128 and the hazardous materials regulations at 49 C.F.R. § 107 and 171-180. Shipper agrees that in any such instance, it shall be the “offeror” or shipper for the purposes of such shipment, and shall be responsible for complying with any and all “offeror” or shipper duties and responsibilities.

11. Equipment. If 3PL, a corporate affiliate of 3PL, or another person provides equipment to Shipper for transporting a shipment, then Shipper shall be liable to 3PL, 3PL’s affiliate, or such other person, as the case may be, for any damage to, or destruction of such equipment, except for (i) ordinary wear and tear, or (ii) as caused by an underlying service provider’s negligence. This Section shall not supersede the Uniform Intermodal Interchange and Facilities Access Agreement ("UIIA") or any other equipment interchange agreement in any instance when such agreement governs Shipper's responsibility for use of equipment.

12. Reconsignment. Reconsignment requests shall be made by Shipper in writing, and Shipper must agree to pay all related charges, and to provide any required documents. 3PL shall use reasonable efforts to comply with any such request, but shall incur no liability in the event that the requested action is not arranged. In the event of a reconsignment, Shipper shall indemnify, defend, and hold 3PL harmless from any claim, lawsuit, or liability related thereto.

13. Hold Harmless. Shipper shall indemnify, defend, and hold 3PL harmless from and against any and all lawsuits, claims, actions, injuries, damages, losses, harm, costs, expenses, fines, penalties, judgments or liabilities related to, or arising from (a) any negligent act, omission or willful misconduct of Shipper, its agents or contractors in connection with tendering or preparing freight for transportation, or (b) any breach by Shipper, its agents, or contractors of any obligation to 3PL under these Standard Terms and Conditions.

14. Independent Contractor. 3PL is an independent contractor of Shipper and no agency, partnership, joint-venture, or employer-employee relationship exists between the Parties. Shipper agrees and understands that 3PL is an independent contractor of underlying service providers that are engaged to provide transportation services, and that no agency, partnership, joint-venture, or employee-employer relationship exists between 3PL and such service providers.

15. Confidential Information. The Parties shall protect the confidentiality of all business, confidential, and/or non-public information exchanged pursuant to the Pricing Document except as may be required by law. It is agreed and understood that the foregoing restriction shall not prohibit 3PL’s disclosure of information (a) to service providers as necessary to arrange transportation meeting Shipper’s request; or, (b) to persons within 3PL’s corporate family, its auditors, accountants, or attorneys, provided that such disclosure (under subsection (b)) is protected by a confidentiality agreement.

16. 3PL’s Lien. 3PL shall have a lien on any shipment for any compensation due or monies owed and may enforce this lien through public or private sale of a shipment, or portion thereof if Shipper or named third-party payor fails to remit payment. In conjunction with this lien, 3PL reserves the right not to forward, deliver, or release any shipment until it has received all outstanding monies. 3PL shall comply with applicable law governing enforcement of its lien.

17. Third Parties. Shipper agrees that 3PL shall have the right to provide transportation services using one or more underlying service providers (rail, motor, air, and/or water carriers). Shipper agrees that each service provider shall be a third-party beneficiary for purposes of Sections 9(b), and 10 above. Otherwise, there are no enforceable rights or remedies conferred upon any person other than the Parties under these Standard Terms and Conditions. Assignment of any rights created hereunder, in whole or in part, by Shipper without 3PL’s prior written consent shall be null and void.

18. Shipping Documents. The terms and conditions contained on any bill of lading, receipt, manifest, or similar shipping document issued by any motor carrier or by Shipper shall not supersede, modify, amend, or augment these Standard Terms and Conditions, which shall be controlling and govern 3PL’s relationship with Shipper. These Standard Terms and Conditions shall not be modified, altered, amended, or augmented except through a separate, mutually agreed-upon, written instrument that is executed by the duly-authorized representatives of Shipper and 3PL.

19. Cancellation of Request. In the event that Shipper cancels a request for transportation service after dispatch by the transportation service provider, Shipper shall be liable to 3PL for all costs and expenses arising from such cancellation, and shall make payment to 3PL covering such costs and expenses within twenty-one (21) days of its receipt of 3PL’s invoice.

20. Choice of Law. The relationship between 3PL and Shipper under these Standard Terms and Conditions shall be that of a private contractual relationship under 49 U.S.C. § 10709 (rail) or § 14101(b) (motor / water) to the extent applicable and not common carriage. Shipper hereby waives any and all rights and remedies allowed to be waived under 49 U.S.C. Subtitle IV, Part B, except where a specific right or remedy is expressly incorporated herein. Texas law governs the Parties’ relationship without regard to conflicts of laws. Any lawsuit or civil action concerning 3PL’s services shall be filed and prosecuted in the State or Federal Courts of Texas.