Applicability

Unless expressly superseded by a written contract signed by an officer of WHITEWATER FREIGHT, INC. (“WHITEWATER”) and the shipper, consignor, consignee, or any other entity claiming an interest in goods for which WHITEWATER arranges transportation (“CUSTOMER”) these Terms and Conditions, as amended from time to time by WHITEWATER in its sole discretion, shall govern property brokerage service (which, for purposes hereof, shall mean the arrangement of motor carrier transportation to be performed by third party Servicing Motor Carriers as defined below) provided by WHITEWATER (“Services”), including services provided pursuant to a load confirmation. Any terms and conditions on document exchanged between the parties other than these Terms and Conditions, as revised from time to time, shall not apply to any Services and shall not be binding on or applicable to WHITEWATER. CUSTOMER understands and agrees that WHITEWATER functions as an independent entity, and not as a carrier, in selling, negotiating, and arranging for transportation for compensation, and that the actual transportation of shipments tendered to WHITEWATER shall be performed by third-party motor carriers (“Servicing Motor Carriers”). WHITEWATER and CUSTOMER represent and warrant that their relationship is that of independent contractors and that the respective employees are under their respective exclusive management and control. Nothing in these Terms and Conditions shall be deemed to require WHITEWATER to provide Services upon request of CUSTOMER and WHITEWATER reserves the right to accept or decline, in its sole discretion, any particular request for Services.

Compliance with Law

WHITEWATER represents and warrants that it is duly and legally qualified to operate as a property broker and to provide the Services contemplated herein. WHITEWATER agrees to comply with all applicable federal, state and local laws regarding the provision of such brokerage Services. CUSTOMER warrants and represents that it is authorized to tender the cargo in question to WHITEWATER and that all descriptions of the cargo are complete, accurate, and include all information required by applicable law, rules or regulation. Without in any way limiting the foregoing, if CUSTOMER tenders for transportation cargo designated as hazardous materials or dangerous goods, CUSTOMER shall be solely responsible for complying with any and all applicable laws, rules, regulations, or conventions with respect to classifying, tendering, packaging and labeling such cargo and must provide notice of any such cargo at the time a request for Services is first initiated by CUSTOMER to WHITEWATER.

When requesting service with respect to any shipment containing food that is subject to regulations of the Food and Drug Administration (“FDA”) (hereinafter, “Food”), CUSTOMER shall be solely responsible for identifying handling obligations necessary for the safe and sanitary handling of food and, at the time of the initial request for services with respect to the individual shipment, will provide written notice (each a “Food Handling Notice”) to WHITEWATER that the consignment contains Food which Food Handling Notice must also include any special instructions or handling requirements to be imposed on the Servicing Motor Carrier. Any such Food Handling Notice shall specifically identify the consignment to which it relates and in no event shall any Food Handling Notice apply to more than one shipment regardless of whether WHITEWATER confirms receipt of a Food Handling Notice purporting to apply to multiple conveyances.

In no event will WHITEWATER have any obligation to provide any instructions to the Servicing Motor Carrier with respect to cargo other than those expressly noted by the CUSTOMER on a load confirmation provided by WHITEWATER to CUSTOMER and WHITEWATER has no obligation to comply with or pass on to the Servicing Motor Carrier any handling instructions received after the initial request for service. If CUSTOMER does not provide a Food Handling Notice, CUSTOMER warrants and represents that the cargo is appropriately packaged to ensure safe and sanitary transportation without the need for any specialized handling by the Servicing Motor Carrier. CUSTOMER acknowledge and agrees that WHITEWATER’s sole obligation with respect to food handling and food safety is to pass through to the Servicing Motor Carrier instructions contained in a Food Handling Notice.

Payment and Charges

WHITEWATER will charge and CUSTOMER will pay the rates and charges set forth in a load confirmation or as otherwise agreed for services provided by WHITEWATER without offset. CUSTOMER agrees to pay WHITEWATER without offset and within thirty (30) days of receiving Whitewater’s invoice, with interest accruing monthly at a rate of one percent (1%) per month on any unpaid balance. CUSTOMER shall also be liable for any expenses, including attorney fees, WHITEWATER incurs in collecting its rates and charges. If any information provided by CUSTOMER is inaccurate or incomplete, CUSTOMER acknowledges and agrees that agreed upon rates may, in WHITEWATER’s sole discretion, be revised to reflect the goods actually tendered.

CUSTOMER shall also be responsible for any additional accessorial charges imposed by the Servicing Motor Carrier which were not anticipated by WHITEWATER at the time WHITEWATER arranged for services with Servicing Motor Carrier or which were not otherwise included in the rate set forth in the load confirmation. In no event will WHITEWATER have any responsibility for, and CUSTOMER will defend, indemnify, and hold WHITEWATER harmless from, and will pay and reimburse, any charges imposed by third parties with respect to use of equipment in which cargo tendered by, to or on behalf of CUSTOMER is or has been laden, or for charges assessed with respect to storage or handling of any such equipment, including, but not limited to, charges assessed by steamship lines, rail carriers, rail terminal operators, marine terminal operators or port authorities.

Without limiting the generality of the foregoing, WHITEWATER shall have no liability for any such charges arising from or related to port congestion, lack of equipment availability, labor shortages, or other situations impacting port or intermodal transportation operations. WHITEWATER shall have a possessory lien on all cargo, and any proceeds therefrom, in its, or in its Servicing Motor Carrier’s, dominion or control for the payment of any and all amounts due and owing from CUSTOMER or with respect to services rendered at the request, or for the benefit of, CUSTOMER. In addition, to the extent not prohibited by applicable law, WHITEWATER will have a general lien on any cargo under its, or its Servicing Motor Carrier’s, dominion or control, and any proceeds thereof, for any and all amounts due and owing from CUSTOMER or with respect to services rendered at the request, or for the benefit of, CUSTOMER, regardless of whether those amounts relate to cargo or proceeds against which the general lien is enforced.

Indemnification, Warranties and Limitation of Liability

In no event shall either Party be responsible for any special or consequential damages regardless of whether the party to be charged had notice of the possibility of such damages. THE TOTAL LIABILITY OF WHITEWATER WITH RESPECT TO ANY CLAIMS OR DAMAGES ARISING FROM OR RELATED TO SERVICES PROVIDED PURSUANT TO THESE TERMS AND CONDITIONS WILL BE FOR THE AMOUNT CHARGED BY WHITEWATER WITH RESPECT TO THE SERVICES SPECIFICALLY GIVING RISE TO SUCH CLAIMS OR DAMAGES. CUSTOMER SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS WHITEWATER FROM AND AGAINST, AND SHALL PAY AND REIMBURSE WHITEWATER FOR, ANY AND ALL CLAIMS, DAMAGES, LIABILITIES, FINES, JUDGMENTS, PENALTIES AND AMOUNTS (INCLUDING REASONABLE ATTORNEY FEES) ARISING FROM OR RELATED TO: (i) BREACH BY CUSTOMER OF THESE TERMS AND CONDITIONS; (ii) THE NEGLIGENCE OR OTHER WRONGFUL CONDUCT OF CUSTOMER, ITS AGENTS, CONTRACTORS OR EMPLOYEES; (iii) VIOLATION BY CUSTOMER, ITS AGENTS, CONTRACTORS OR EMPLOYEES OF ANY APPLICABLE LAWS, RULE OR REGULATION; OR (iv) CUSTOMER’S FAILURE TO PROVIDE, OR WHITEWATER’s OR THE SERVICING MOTOR CARRIER’S COMPLIANCE WITH OR RELIANCE ON, INSTRUCTIONS, DIRECTIONS, OR REQUEST OF CUSTOMER.

THE FOREGOING NOTWITHSTANDING, CUSTOMER’S OBLIGATION TO HOLD HARMLESS, DEFEND, INDEMNIFY, PAY AND REIMBURSE SHALL NOT APPLY TO THE EXTENT ANY CLAIM IS CAUSED BY THE NEGLIGENCE OR INTENTIONAL MISCONDUCT OF WHITEWATER THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE. WHITEWATER IS NOT LIABLE FOR THE CONSEQUENCES OF IDENTITY THEFT OR FRAUDULENT CONDUCT OF THIRD PARTIES, INCLUDING UTILIZING THE SERVICES OF ENTITIES REPRESENTING THEMSELVES TO BE SERVICING MOTOR CARRIERS OR REPRESENTATIVES THEREOF.

Servicing Motor Carriers

WHITEWATER’s sole responsibility with respect to selection and retention of Servicing Motor carriers is to make reasonable efforts to place CUSTOMER’s loads with responsible Servicing Motor Carriers: (i) authorized to perform the services required by CUSTOMER; (ii) which such carriers do not hold an “unsatisfactory” or unfit safety rating from the U.S. Department of Transportation; and (iii) that possess all insurance coverages required by applicable law. WHITEWATER makes no express or implied warranties or guarantees concerning delivery time or the locating of a Servicing Motor Carrier to provide the transportation services requested by CUSTOMER.

Whitewater Insurance

WHITEWATER shall comply with all insurance and bonding requirements imposed upon it by law, including its obligation to maintain a surety bond or trust fund agreement.

Cargo Loss, Damage, or Shortage

CUSTOMER acknowledges that Servicing Motor Carriers may limit their liability for cargo loss, damage or delay. It will be CUSTOMER’s responsibility to insure product in-transit and CUSTOMER acknowledges that if CUSTOMER wishes to declare excess value higher than the Servicing Motor Carrier’s limitation, WHITEWATER will have no responsibility to do so and it will be CUSTOMER’s responsibility to do so directly with the Servicing Motor Carrier. WHITEWATER may facilitate claims filing and processing with the Servicing Motor Carrier if CUSTOMER submits to WHITEWATER, within six (6) months of the date of delivery, a written claim, fully supported by all relevant documentation, including but not limited to the signed delivery receipt, listing the nature and cause of the claim for cargo damage.

WHITEWATER may, in its sole discretion and without liability to CUSTOMER, discontinue pursuit of claims with the Servicing Motor Carrier if such claim is not resolved within sixty (60) days of receipt by WHITEWATER or if CUSTOMER, in WHITEWATER’s sole discretion, fails to cooperate with WHITEWATER in filing of claims with the Servicing Motor Carrier. CUSTOMER acknowledges and agrees that failure or alleged failure by the Servicing Motor Carrier to comply with shipment handling instructions, or a broken trailer seal, shall not result in any presumption that food has been adulterated, contaminated, or otherwise rendered unfit for its intended purpose, nor otherwise be grounds for rejection of a shipment or filing of a claim for cargo loss and damage without proof of actual loss or damage.

WHITEWATER shall have no liability for cargo loss, damage, or shortage except to the extent such claims are caused by WHITEWATER’s negligent acts or omissions, in which case, WHITEWATER’s liability shall be limited to the charges assessed by WHITEWATER and paid by CUSTOMER with respect to the goods at issue. CUSTOMER is responsible for filing a claim with WHITEWATER alleging WHITEWATER’s liability for cargo loss and damage within six (6) months of the date of delivery of the cargo in question (or, if none, within six (6) months of the date cargo should have been delivered). Failure to do so will result in an absolute bar to any such claim and will relieve WHITEWATER of any and all liability with respect thereto.

In no event will WHITEWATER have any liability arising from or related to the Servicing Motor Carrier’s refusal to accept full value liability or the Servicing Motor Carrier otherwise limiting its liability for cargo loss and damage. WHITEWATER shall be under no obligation to arrange, and Servicing Motor Carrier shall be under no obligation to provide, service in accordance with any set pick-up or delivery schedule; WHITEWATER’s sole obligation is to ensure Servicing Motor Carriers provide services with reasonable dispatch. Any lawsuit arising from such claim must be commenced within eighteen (18) months of denial of all or any part of such claim. CUSTOMER acknowledges and agrees that the sole liability of WHITEWATER with respect to loss, damage or delay to cargo shall be as set forth in this provision and CUSTOMER warrants and represents that if it is not the owner of such cargo, CUSTOMER holds authority from such owner to bind the owner to the provisions of these Terms and Conditions.

Rail Transportation

Notwithstanding anything in these Terms and Conditions to the contrary, in the event, whether upon request of CUSTOMER or in WHITEWATER’s discretion, any portion of the underlying transportation is performed by a rail carrier (“Rail Carrier”), CUSTOMER acknowledges and agrees that the Rail Carrier services, including, but not limited to, charges, liability (including limitations) for loss or damage to cargo, and terms and conditions of services are governed by tariffs, circulars or similar documents maintained by the Rail Carrier or other third party logistics provider arranging such Rail Carrier services (the “Rail Conditions”). CUSTOMER acknowledges and agrees that CUSTOMER, and not WHITEWATER, shall be deemed as a shipper or beneficial cargo owner for purposes of application of the Rail Conditions.

As between CUSTOMER and WHITEWATER, CUSTOMER shall be solely responsible for: (a) proper packing of any and all shipments; (b) blocking and bracing all such cargo in accordance with the Rail Conditions, as well as in accordance with industry standards (including, but not limited to, those imposed by the American Association of Railroads via Circular 43, Rules Governing the Loading, Blocking and Bracing of Freight in Closed Trailers and Containers for TOFC/COFC Service); and (c) compliance with any and all obligations or charges imposed by the Rail Carrier with respect to tender of cargo for rail and/or intermodal transportation, including but not limited to any and all charges for accessorial services imposed by Rail Carriers whether or not included in the initial rates agreed upon by the parties.

Shipping Documents

Shipments tendered hereunder may be evidenced by a bill of lading or similar transportation document. In no event will WHITEWATER being shown as the “carrier” on any such document change WHITEWATER’s status as a property broker. Upon request of CUSTOMER, WHITEWATER shall request that Servicing Motor Carriers obtain a delivery receipt from the consignee, showing the products delivered, the condition of the shipment and the date and time of such delivery. CUSTOMER waives access to WHITEWATER’s records pursuant to 49 C.F.R. Part 371.

Notification of Accidents or Delays

WHITEWATER agrees to notify CUSTOMER of any accident or other event of which WHITEWATER is apprised and which prevents the motor carrier from making a timely or safe delivery.

Dispute Resolution

These Terms and Conditions shall be deemed to have been drawn in accordance with the statutes and laws of the state of Indiana and in the event of any disagreement or dispute regarding services subject to these Terms and Conditions, to the extent not otherwise governed by federal law, the laws of Indiana shall apply and the sole and exclusive jurisdiction for any lawsuit related to or arising out of these Terms and Conditions or WHITEWATER’S services shall be the state and federal courts encompassing West Harrison, Indiana and each party specifically submits to the exclusive personal jurisdiction of such courts for disputes between them or otherwise involving WHITEWATER’s services.

Interpretations and Definitions

Client refers to any individual or entity, including businesses and other legal structures, that either ships, stores, receives, or retrieves the merchandise, or anyone acting on their behalf.

Unforeseeable Events include any situation outside of Whitewater Freight’s control such as natural disasters, labor disputes, equipment malfunctions not due to negligence (including failures in power, heating, lighting, air conditioning, or communications), civil disturbances, military actions, governmental actions, or threats from criminals or terrorists.

Merchandise encompasses all cargo provided by or for the client for services rendered by Whitewater Freight under these conditions, including any containers or packaging not supplied by Whitewater Freight.

Whitewater Freight denotes the logistics service provider executing services under these conditions.

Affiliated Entities mean any subsidiaries, parent companies, or affiliates of Whitewater Freight.

Conditions refer to the stipulated terms and conditions governing logistics services provided by Whitewater Freight.

Applicability of Conditions

These conditions apply to all services offered by Whitewater Freight, especially focusing on warehouse and distribution services such as consolidation, deconsolidation, transloading, labeling, packing, and cross-docking. By providing merchandise to Whitewater Freight or its associates, clients accept these conditions. Any client documentation is considered supplementary and in case of discrepancies, these conditions prevail.

Transportation services provided by Whitewater Freight are conducted as the client’s agent or broker, except when Whitewater Freight operates the transport equipment or issues a bill of lading as a carrier. Liability limits from third-party services may apply, and Whitewater Freight will seek additional valuation at the client’s directive and expense.

Client Responsibilities

Clients must ensure that all goods are adequately prepared and documented for service. Clients agree not to ship goods without Whitewater Freight’s explicit consent if Whitewater Freight is listed as the consignee. Any violations resulting in charges will be the client’s responsibility. Clients guarantee the legality of the goods and their authority to bind agreements to these conditions. They must also ensure compliance with all relevant laws and provide necessary goods information to Whitewater Freight.

Prohibited Items and Service Limitations

Clients are restricted from submitting certain hazardous materials, firearms, alcohol, tobacco, illegal or counterfeit goods, perishables, and other regulated items without Whitewater Freight’s express permission. Specific conditions apply to accepted restricted items, including proper identification and compliance with regulations.

Whitewater Freight’s Rights and Liabilities

Whitewater Freight reserves the right to refuse service, inspect goods, and relocate goods as necessary. Liability for lost or damaged goods is limited to specific terms unless additional coverage is requested by the client. Whitewater Freight is not responsible for third-party carrier losses except as specified.

Financial Terms

Quotations from Whitewater Freight are subject to change, and all charges are billed as per the agreed terms. Late payments incur fees, and special handling or circumstances may result in additional charges.

General and Dispute Resolution

These conditions are only alterable through written agreement, and any disputes will be resolved within the jurisdiction where the service was provided.

1. Introduction

These Terms and Conditions govern the provision of LTL shipment quotes provided by Whitewater Freight, Inc. (“Whitewater Freight”). By requesting a quote, clients agree to be bound by these terms as well as any terms provided with the quote.

2. Freight Quotes

All LTL shipment quotes provided by Whitewater Freight are estimates based on the information provided by the client at the time of the quote request. Final charges will be determined according to the actual services rendered and the terms of the carrier selected.

3. Weight and Reclassification Fees

The client is responsible for accurately reporting shipment weight and classification. If the carrier determines that a reclassification or reweighing is necessary, the client will be subject to a reclassification fee as well as any additional transportation costs that may apply due to the change in classification or weight.

4. Additional Stops

Additional fees will apply for any stops in transit beyond the standard pickup and delivery. These will be calculated per stop and will be added to the final invoice.

5. Accessorial Charges

Additional services including but not limited to inside pickup/delivery, lift gate service, residential service, limited access locations, and storage may incur accessorials. These services must be requested at the time of quote and will be included in the final charge.

6. Freight Handling

Improperly packaged or labeled freight may result in additional handling fees. Freight that requires additional handling due to non-standard requirements or characteristics will also incur additional fees.

7. Payment Terms

All LTL shipment invoices are due upon receipt unless otherwise specified. Late payments may be subject to late fees and interest as outlined in the invoice terms.

8. Claims and Liabilities

Claims for loss or damage must be filed within the time limits set forth by the carrier’s rules tariff. Whitewater Freight’s liability for any loss, damage, or delays will be limited to the terms provided by the carrier selected for the shipment.

9. Cancellations

Cancellation of services after a shipment has been scheduled may result in a cancellation fee. This fee will be determined based on the timing of the cancellation and the terms of the carrier.

10. Force Majeure

Whitewater Freight will not be liable for any failure to perform its obligations due to circumstances beyond its control including but not limited to acts of God, weather conditions, road closures, and governmental interventions.

12. Amendments

Whitewater Freight reserves the right to amend these Terms and Conditions at any time. All amendments will be posted on the Whitewater Freight website and will take effect immediately.

13. Acceptance of Terms

Submission of a quote request to Whitewater Freight constitutes acceptance of these Terms and Conditions.