Terms & Conditions
PUBLISHED: MARCH 29, 2023
UNLESS A WRITTEN AGREEMENT FOR SERVICES IS IN EFFECT BY AND BETWEEN THE SHIPPER AND (1) LASERSHIP INC.; (2) LASERSHIP INC. DBA ONTRAC FINAL MILE; OR (3) ONTRAC LOGISTICS INC., BY SHIPPER PROVIDING ITS SHIPMENTS TO ONTRAC (AS DEFINED BELOW) OR ALLOWING ONTRAC TO COLLECT ITS SHIPMENTS FOR DELIVERY, THE SHIPPER EXPRESSLY AGREES TO ALL TERMS AND CONDITIONS CONTAINED HEREIN.
THE BELOW ONTRAC SERVICE TERMS AND CONDITIONS ARE SUBJECT TO CHANGE AND ARE APPLICABLE ON SHIPMENTS PICKED UP TWENTY-FOUR (24) HOURS AFTER THE CHANGE IS PUBLISHED ONLINE.
THESE ONTRAC SERVICE TERMS AND CONDITIONS are made by and between the Shipper utilizing OnTrac’s “Services” as defined below (the “Shipper”), and LaserShip, Inc. dba OnTrac Final Mile (hereinafter as “OnTrac”), a Delaware corporation with corporate offices at 8401 Greensboro Drive, 7th Floor, McLean, VA 22102. Shipper and OnTrac may be hereinafter referred to collectively as the “Parties” or individually as a “Party” to these OnTrac Service Terms and Conditions. These OnTrac Service Terms and Conditions are hereby understood to mean the “Agreement” by and between the Parties governing the Shipper’s use of OnTrac’s Services.
WHEREAS, OnTrac is licensed as a motor carrier (under the Federal Motor Carrier Safety Administration or other appropriate State agencies) and is authorized to conduct operations in interstate and intrastate commerce, and;
WHEREAS, the Shipper desires to engage OnTrac to provide motor carrier and/or broker/freight forwarder services “Services” (directly or through or OnTrac Logistics Inc.) pursuant to the terms and conditions contained herein, and;
WHEREAS, in certain territories OnTrac may: (i) provide its Services directly; (ii) utilize its fully owned subsidiary organization OnTrac Logistics, Inc. to provide the Services directly; and/or (iii) utilize third party motor carriers via OnTrac Logistics, Inc., which operates as a licensed property broker/freight forwarder arranging for the transportation of freight using interstate or intrastate licensed third-party motor carriers, and;
NOW THEREFORE, in consideration of the terms and conditions contained herein, the sufficiency of which is mutually acknowledged, the Parties (intending to be legally bound) hereby agree to the terms and conditions herein this “Agreement” as follows:
- Term. The Term of the Agreement shall commence on the Effective Date listed above and shall continue until terminated by either Party (the “Term”). Without limitation of the foregoing, either Party may terminate this Agreement (and the Shipper’s service) at any time for convenience and without any liability to the other Party by providing no less than ninety (90) days prior written notice to the other Party. In the event of termination while shipments have been picked up and are in the process of delivery, OnTrac shall complete deliveries in process but shall have the option to complete pick up. In addition, OnTrac may terminate this Agreement (and the Shipper’s service): (i) upon Shipper’s material breach of this Agreement which has not been removed, rectified, or cured to OnTrac’s reasonable satisfaction within fifteen (15) days after written notice is provided to Shipper; or (ii) if Shipper becomes insolvent, makes a general assignment for the benefit of its creditors, admits in writing to the inability to pay debts as they come due or mature, has a trustee or receiver appointed by any court or other administrative tribunal with respect to its assets, or any action is taken by or against the Shipper under laws of bankruptcy or insolvency or laws relating to the relief of debtors.
- OnTrac’s Services. OnTrac shall provide (or arrange to provide) the Shipper with the services selected by Shipper from OnTrac’s standard service listing placed via web order, email, and/or telephone (the “Specified Services”). The Parties may amend, adjust, or add to the Specified Services by mutual consent. OnTrac warrants that it is duly and legally qualified to provide all Services contemplated herein and agrees to comply with all applicable law in the performance of its Services. Additional terms and conditions apply to OnTrac’s Services which can be found at https://www.ontrac.com/terms-conditions-additional (“Additional Terms and Conditions”) which are hereby incorporated into this Agreement. It is the sole responsibility of Shipper to monitor the Additional Terms and Conditions which are subject to periodic updates.
- Rates; Surcharges; API Disclaimer. Shipper agrees to pay OnTrac the applicable Rates for Shipments set forth at https://www.ontrac.com/wp-content/uploads/2023/03/OnTrac-2023-rates.pdf (“Rates”). In addition to the Rates, Shipper shall be responsible for the applicable Shipment Surcharges set forth at https://www.ontrac.com/surcharges/. It is the sole responsibility of the Shipper to monitor the Rates and Surcharges, which are each subject to periodic updates without prior notice. Any pricing and/or rate quote(s) provided by OnTrac’s rate shopping API (“API) are estimates only and provided solely for informational purposes. Quoted pricing and/or rates may vary from final actual amount(s) invoiced depending on variables including but not limited to service date and time, route, and/or service availability. In the event of any conflict between the pricing and/or rate quote(s) provided by OnTrac’s API and the Rates, then the Rates set forth at https://www.ontrac.com/wp-content/uploads/2023/03/OnTrac-2023-rates.pdf shall prevail, govern, and apply.
- Payment Terms; Deficiencies; Third Party Payors. OnTrac will invoice Shipper weekly for all Services provided during such period. Shipper will pay such invoice within fifteen (15) days of invoice date and expressly agrees that it will make one payment per invoice. Any invoice disputes must be brought in good faith, in writing, and received by OnTrac via email to email@example.com within this fifteen (15) day period to facilitate immediate resolution. Additionally, if any invoice or portion thereof is more than fifteen (15) days past due, OnTrac may refuse to complete any Specified Services unless and until any outstanding past due amounts are promptly paid to OnTrac. Past due accounts will be assessed a late fee of six percent (6%) per month for any outstanding amounts. Shipper will be charged a fee of $35.00 for any returned check. In the event that OnTrac does not receive prompt payment for the amounts which are due or if Shipper remits more than one payment per invoice, Shipper will be liable for reasonable collection costs and/or administrative costs incurred by OnTrac including, but not limited to, attorney fees, collection agency fees, and court costs. If Shipper utilizes any third-party entity (a “Third-Party Payor”) to compensate/pay, process, and/or review OnTrac transportation charges earned pursuant to this Agreement, Shipper must provide OnTrac advance written notice prior to implementation. Shipper shall be solely responsible for the costs for such Third-Party Payor services. To the extent that OnTrac pays any such charges in the first instance, Shipper shall reimburse OnTrac for such charges within five (5) days of a request from OnTrac. Furthermore, Shipper agrees that it shall indemnify, defend, and hold harmless OnTrac (and its affiliates) from any and all liability, claims (including third party claims), losses, costs, fines, penalties, expenses (including attorney’s fees), judgments, or demands on account of damage of any kind whatsoever, arising in any way from Shipper’s use of a Third-Party Payor and/or OnTrac’s receipt of payments from a Third-Party Payor on Shipper’s behalf, including but not limited to, claims to the sums paid by the Third-Party Payor asserted in a Third-Party Payor’s bankruptcy, or otherwise.
- Shipper Obligations. OnTrac will have no liability for missing labels, mislabeled, or otherwise inaccurate labeling of shipments, goods, packages and/or cargo (collectively the “Shipments”) transported pursuant to this Agreement. Shipper represents and warrants all Shipments tendered to OnTrac pursuant to this Agreement are proper, lawful, and prepared only in anticipation of residential and/or commercial building delivery. Shipper agrees to comply with all applicable law(s), rules, and regulations related to the performance of its obligations hereunder to this Agreement.
- Perishable Shipments. Shipper shall provide OnTrac with advance written notice of the proposed collection, handling, shipment, transport, and/or delivery of any perishable Shipment(s) and OnTrac in its sole discretion shall have the option (and reserves the right) to accept or reject any Shipment, including such perishable Shipment. Unless expressly agreed in writing, OnTrac does not transport or arrange transport of Shipments which require refrigeration or freezing. Shipper shall have the sole responsibility to ensure that any perishable Shipments tendered to OnTrac are properly packaged, labeled, marked, and secured for transportation appropriate for its collection, transport, and delivery (including but not limited the use of cold-packs). Perishable Shipments shall be transported pursuant to the instructions indicated on the bill of lading, rate confirmation sheet, or as otherwise instructed in writing by Shipper. Instructions given on prior Shipments shall not apply to future Shipments. To the extent OnTrac receives contradictory and/or instructions not clear to OnTrac regarding any Shipment(s), OnTrac shall not be liable for any damages resulting from application of any of the instructions provided by Shipper. When applicable statutes or regulations require it, including but not limited to those promulgated under the Food Safety Modernization Act, OnTrac will be responsible for: (i) ensuring or requiring that all transportation equipment it provides, is clean, odor-free, dry, leak-proof and free of contamination and infestation and otherwise safe to transport the commodities tendered; and (ii) complying with Shipper instructions for transporting Shipments safely and confirming the vehicle and transportation equipment is in appropriate physical condition to transport the goods tendered, including but not limited to free from pest infestation and evidence of prior Shipments that could render the Shipment unsafe. If Shipper’s instructions require a seal upon the Shipment, the lack of a seal alone shall not be sufficient to consider the Shipment unsafe or damaged.
- Hazardous Materials. Shipper shall provide OnTrac with advance written notice of the proposed collection, handling, shipment, transport and/or delivery of any hazardous material(s), 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”) and OnTrac in its sole discretion shall have the option (and reserves the right) to accept or reject any Shipment, including Shipments of any Hazardous Material(s). If Shipper’s Hazardous Materials are accepted by OnTrac, the following terms and conditions shall apply:
- Expressly excluding those classified as “Limited Quantities” as defined under 49 CFR § 172.315 and subject to a contrary classification per the Hazardous Material Safety Data Sheet available at OnTrac request, prior to the transportation of any Hazardous Material, Shipper shall provide OnTrac with a current Material Safety Data Sheet or any other Hazardous Material document required to be prepared and provided by Shipper or its agent for the Hazardous Material Shipment. Shipper shall be responsible for ensuring that the Hazardous Material is properly packaged, labeled, marked and secured for transportation in accordance with all applicable regulations.
- Shipper shall indemnify, defend and hold harmless OnTrac, its officers, employees, agents and insurers, against all claims, liabilities, losses, fines, reasonable attorney fees 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:
- Shipper fails to provide the notice required by this provision prior to tendering the Hazardous Material to OnTrac;
- the contact, exposure or release resulted from the improper packaging, labeling, marking or loading or other acts or omissions of the Shipper, its employees or agents; or
- the contact, exposure or release occurred subsequent to the transport or storage of the Hazardous Material by or through OnTrac.
- CBD Products/Hemp Shipments. Shipper shall provide OnTrac with advance written notice of the proposed collection, handling, shipment, transport, and/or delivery of any Shipments containing hemp and/or hemp-derived products (e.g., cannabidiol or “CBD” Products) as defined in 7 U.S.C. § 1639(o) (hereinafter as “Hemp Shipments”). OnTrac in its sole discretion shall have the option (and reserves the right) to accept or reject any such Hemp Shipments. If Shipper’s Hemp Shipments are accepted by OnTrac, the Shipper represents and warrants that:
- Shipper will comply with all applicable federal, state, and local laws, rules, regulations, and ordinances having jurisdiction over the goods contained in the Hemp Shipments and the transportation services to be performed;
- Shipper will ensure that OnTrac’s possession and transportation of the Hemp Shipment is permitted in all jurisdictions through which the Hemp Shipment will be transported. (OnTrac will provide the route of transport upon request of Shipper);
- Each Hemp Shipment is packaged, marked, and labeled in accordance with applicable law, and that each Hemp Shipment is accompanied by all documentation required in each jurisdiction through which it will be transported. (OnTrac will provide the route of transport upon request of Shipper);
- The Hemp Shipments will not contain any plants or products with a delta-9 tetrahydrocannabinol (“THC”) concentration of more than 0.3 percent on a dry weight basis. Shipper will upon provide OnTrac with a copy of the certificate of analytical testing identifying the specific Hemp Shipment (or the lot from which such Hemp Shipment is derived) to evidence compliance with this subsection. Additionally, Shipper will provide an electronic copy of such THC test results to OnTrac prior to tender of the Hemp Shipment and a hard copy to the driver upon pickup of the Hemp Shipment;
- Prior to tender of any Hemp Shipments to OnTrac, that the hemp or hemp products contained in any Hemp Shipments were produced in accordance with all applicable laws and regulations, including those of the United States Department of Agriculture (USDA) or the U.S. State in which the hemp in question was cultivated or processed, and that any hemp or hemp products contained in any Hemp Shipment were grown or produced by a lawfully authorized hemp producer holding the requisite valid, current USDA- or state-issued license. With respect to each Hemp Shipment, Shipper will provide an electronic copy of such license to OnTrac prior to tender of the Hemp Shipment and a hard copy to the driver upon pickup of the Hemp Shipment; and
- Any receiver or consignee to which a Hemp Shipment will be delivered is authorized to receive and possess it pursuant to federal, state, and local laws and regulations.
- In the event of OnTrac’s possession of the Shipper’s Hemp Shipments prior to OnTrac’s receipt of the applicable documentation required hereunder, it shall not in any way constitute a waiver of: (a) Shipper’s obligations and requirement contained above; or (b) OnTrac’s rights or claims against Shipper.
- Shipper’s Indemnification. Without limitation of any other rights or obligations under this Agreement, Shipper agrees to defend, indemnify, and hold harmless OnTrac, its affiliate, subsidiary, and parent companies (and its and their successors, assigns, officers, directors and employees) from and against any and all direct or indirect damages, claims, losses, liabilities, deficiencies, costs and other expenses (including, without limitation, reasonable attorneys’ fees) which in any way relate to or arise out of the Shipper’s violation, non-compliance, and or material breach of Section(s) 5; 6; 7 and/or 8 of this Agreement. The provisions of this Section 9 shall expressly survive the expiration or termination of this Agreement.
- Shipment Liability. OnTrac’s liability to Shipper for loss, damage, or misdelivery of a Shipment shall be accordance with the provisions of 49 U.S.C. § 14706, which liability shall be hereby limited to the lesser of: (i) the actual replacement cost; (ii) $100 per parcel; or (iii) $250,000 per truckload (“Shipment Liability”). ONTRAC DOES NOT GUARANTEE DELIVERY BY A SPECIFIC DAY OR TIME. Shipper has considered the transportation Rates and limitations set forth herein (and has elected against available higher levels of motor carrier liability at higher transportation rates) and selects the limitation of OnTrac’s Shipment Liability set forth in this Agreement. In all instances, evidence of actual loss, damage, or misdelivery shall be required before OnTrac shall have any Shipment Liability to Shipper under this Agreement, the Carmack Amendment, or otherwise. The Shipment Liability in this subsection applies in all circumstances and shall not be invalidated based on any action or inaction of OnTrac. Without limitation, OnTrac will not be liable to Shipper for any loss, damage, or misdelivery of Shipments caused by events OnTrac cannot control, including without limitation acts of God, Force Majeure Events (as defined in Section 15 below), unforeseeable weather conditions, pandemics, acts of public enemies, war, strikes or civil commotion, traffic, or other delays of vehicles used in providing delivery services. OnTrac’s sole liability with respect to Shipment loss, damage, or misdelivery is as set forth in this Section. If Shipper is not the owner of the Shipment(s), Shipper represents and warrants that it is authorized to bind the owner of the Shipment(s) to the provisions of this Section. The provisions of this Section 10 shall expressly survive the expiration or termination of this Agreement.
- Shipment Claims. All claims related to loss, damage, or misdelivery of Shipments (“Shipment Claims”) must be handled through OnTrac’s Claims Management Department at firstname.lastname@example.org and not its Accounts Receivable Department. Shipper shall file any Shipment Claims with OnTrac within fifteen (15) calendar days of the anticipated due date of the Shipment (otherwise OnTrac reserves the right to refuse the claim). It is the responsibility of Shipper to complete OnTrac’s Shipment Claim form and attach all supporting documentation. For a Shipment Claim to be filed and/or paid, Shipper must: (i) be in current and good standing of its payment obligations to OnTrac; and (ii) provide OnTrac with the invoice that outlines the actual replacement cost for the content in the package being claimed. It is the responsibility of Shipper to complete OnTrac’s claim form and attach all supporting documentation. Shipper may not deduct or “short pay” amounts of pending claims from charges owed to OnTrac. Shipper waives any and all rights, including statutory and common law rights, pertaining to set off and/or applying claim amounts against charges owed to OnTrac. The provisions of this Section 11 shall expressly survive the expiration or termination of this Agreement.
- Shipper waives any right(s) of subrogation held by Shipper (or its insurer) related to any Shipment Claims arising out of Shipments tendered to or transported by OnTrac under this Agreement. To the extent the Shipper (or its insurer) asserts a Shipment Claim (or other legal claim) in excess of the limits of Shipment Liability stated in Section 10 above (entitled “Shipment Liability”), or outside of the procedure(s) set forth in Section 11 above (entitled “Shipment Claims”), Shipper will defend, indemnify, and hold OnTrac (and its affiliate, subsidiary, and parent companies) harmless from all costs, expenses and attorney fees related in any way to such claim asserted.
- Shipper and OnTrac expressly waive any and all rights and remedies under Part B of Subtitle IV to Title 49 of the U.S. Code to the extent that such rights and remedies conflict with this Agreement, as allowed by 49 U.S.C. § 14101. Without limitation of the foregoing, failure by either Party to insist upon the other Party’s performance under this Agreement or to exercise any condition, right, or privilege herein shall not be a waiver of any of the conditions, rights, or privileges provided for in this Agreement.
- Notwithstanding any other provision in this Agreement, the time limit for filing overcharge claims on Shipments moved pursuant to this Agreement or between the Parties shall be six (6) months after the original date of invoice.
- Any legal action by Shipper relating to this Agreement must be brought no later than two (2) years from the date of the event giving rise to the underlying legal claim(s) or action.
- IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT OR THE RELATIONSHIP OF THE PARTIES HEREUNDER INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOST PROFITS, GOODWILL, OR BUSINESS INTERRUPTION, REGARDLESS OF WHETHER THE PARTY TO BE CHARGED HAD ADVANCE NOTICE OF THE POSSIBILITY OF SUCH DAMAGES.
- Indemnification; Waiver[s] of Indemnity.
- OnTrac Indemnity. Expressly excluding claims related to the loss, damage, or misdelivery Shipments which shall be exclusively handled in accordance with the above provisions of Section 10 entitled “Shipment Liability” and Section 11 entitled “Shipment Claims”, OnTrac agrees to defend, indemnify, and hold harmless the Shipper, its officers, directors and employees from and against any and all third party damages, claims, losses, liabilities, deficiencies, costs, and other expenses (including, without limitation, reasonable attorneys’ fees) incurred by Shipper, which directly arise out of the negligent acts or omissions of OnTrac or its employees in the performance of its obligations under this Agreement. OnTrac’s indemnity obligations under this Agreement do not apply to the extent such damages, claims, losses, liabilities, deficiencies, costs and other expenses (including, without limitation, reasonable attorneys’ fees) are not caused by the acts or omissions of OnTrac.
- Shipper Indemnity. Shipper agrees to defend, indemnify, and hold harmless OnTrac, its affiliates (and its and their officers, directors, or employees) from and against any and all damages, claims (including third party claims), losses, liabilities, deficiencies, costs, and other expenses (including, without limitation, reasonable attorneys’ fees) incurred by OnTrac or its affiliates which arise out of the Shipper’s: (1) negligent, including grossly negligent, acts or omissions; (2) non-compliance with the provisions contained herein this Agreement; or (3) violation of applicable law.
- Waiver of Indemnity. Any and all claims for unemployment benefits or workers’ compensation benefits against Shipper by OnTrac’s acknowledged employees performing Services pursuant to this Agreement are hereby expressly waived by OnTrac, which agrees to maintain or require to be maintained separate policies of liability insurance and workers’ compensation insurance, and any and all licenses required by law, with respect to OnTrac acknowledged employees. Notwithstanding anything to the contrary, nothing herein will be interpreted as OnTrac’s obligation to waive a claim and/or indemnify, defend, or hold Shipper harmless in the event Shipper’s acts or omission result in a determination that Shipper is a sole or joint employer of person(s) providing Services under this Agreement.
- The provisions of this Section 13 shall expressly survive the expiration or termination of this Agreement.
- No Assignment by Shipper. OnTrac may assign this Agreement upon written notice to Shipper. A Shipper may not assign or transfer its obligations under this Agreement, in whole or in part, to any third party without the prior written consent of OnTrac.
- Force Majeure. If OnTrac fails to perform its obligations hereunder because of acts of God, action, or interaction of any government body or other proper authority, or other causes beyond its control including those enumerated in Section 10 above (collectively, and each a “Force Majeure Event”), then such failure to perform will not be deemed a default hereunder and will be excused without penalty until such time as OnTrac is reasonably capable of performing.
- Miscellaneous. This Agreement shall be subject to and governed by substantive laws of the State of Delaware without regard to any conflict of law(s) provisions. Further, the Parties hereby agree to submit to the exclusive jurisdiction of the appropriate state (or if applicable federal) courts located in the State of Delaware for any dispute, action, suit, or proceeding arising out of this Agreement. The section headings herein have been inserted solely for convenience of reference and will not constitute a part of this Agreement, nor will they affect the meaning, construction, interpretation, or effect of this Agreement. This Agreement shall constitute the entire agreement by and between Shipper and OnTrac with respect to the subject matter hereof. Notwithstanding the above, this Agreement shall be automatically amended to comply with state and federal law. If any portion of this Agreement is deemed unenforceable for any reason, such portion shall be severable, and the remaining provisions of this Agreement shall continue in full force and effect.