Terms and Conditions of Service

Description of Services

The Services provided by Airspace may include: (a) property brokerage arranging for motor carriage with third-party motor carriers under its permit issued by the Federal Motor Carrier Safety Administration (“FMCSA”); (b) surface freight forwarding services including arranging for motor carriage with third-party motor carriers under its operating authority issued by the FMCSA; (c) air cargo transportation services in its capacity as a U.S. Transportation Security Administration (“TSA”) licensed indirect air carrier (“IAC”); or (d) as a duly authorized “agent” of Customer for the purpose of performing duties in connection with the movement of Customer’s goods including air charters and certain dealings with governmental authorities. Airspace will deliver those services pursuant to these Terms, its Exhibits, and any applicable tariff or similar contract terms. Airspace’s services will comply with all applicable federal, state, and local laws and regulations. Customer shall be responsible in all events for the timely and accurate delivery of instructions and cargo descriptions, including any special handling requirements, for all shipments it may tender from time-to-time which Airspace may accept or reject in its sole discretion. The Services may include the following:

1.1 Property Broker Services

To the extent the Services include property brokerage services:

1. Airspace agrees to arrange the motor carrier transportation of Customer’s property between points and places throughout the United States, Canada, and Mexico pursuant to the terms and conditions of these Terms. Customer shall be responsible in all events for the timely and accurate delivery of instructions and cargo descriptions, including any special handling requirements, for all shipments it may tender from time to time, which Airspace may accept or reject in its sole discretion.
2. Airspace represents and warrants that it is duly and legally qualified as an interstate property broker pursuant to FMCSA-issued permit identified as U.S. DOT No. 2457408 and Docket No. MC-841965. Customer acknowledges and agrees that Airspace arranges for the transportation of its property and that third-party motor carriers (each a “Carrier” or collectively, the “Carriers”) will physically transport Customer’s property. Airspace will bear no liability for the acts and omissions of the Carriers. Airspace shall contractually require any such Carriers to hold and maintain all qualifications required for performance of their services and to perform in compliance with applicable laws and regulations.
3. Airspace has entered or will enter into bilateral contracts with Carriers as may be required to accomplish the Services, and for U.S. based Carriers those contracts will comply with all applicable regulations and will include provisions materially similar to the following:
   1. Carriers are independent contractors with the exclusive control over their respective drivers and employees, and are not agents, employees, or authorized representatives of Airspace or Customer;
   2. Carrier shall agree that its liability for cargo loss or damage shall be no less than that of a motor carrier as provided for in 49 USC 14706 (the Carmack Amendment);
   3. Carrier shall agree that the provisions contained in 49 CFR 370.1 et seq. shall govern the processing of claims for loss, damage, or injury to property and the processing of salvage;
   4. Carrier shall authorize Airspace to invoice Customer for services provided by the Carrier and shall further agree that Airspace is the sole party responsible for payment of its invoices and that, under no circumstance, will Carrier seek payment from Customer or the consignee;
   5. Carrier shall agree that at no time during the term of its contract with Airspace shall it have an “Unsatisfactory” safety rating as determined by the FMCSA, if Carrier receives an Unsatisfactory safety rating, then it shall immediately notify Airspace;
   6. Bills of lading and delivery receipts shall be used solely as receipts for shipment and to identify the kind and quantity of goods, place of pickup and delivery, Customer and consignee, and any other information required by Customer;
   7. Any provisions of Carrier’s bill of lading or similar documentation, including any references to classifications, tariffs, service guides, or other publications and contractual terms and conditions, shall be null and without legal effect, and if required by Customer, delivery for all shipments shall be notated on the bill of lading;
   8. Carrier shall expressly waive all rights and remedies under Title 49 USC, Subtitle IV, Part B to the extent they conflict with these Terms.
4. Shipments transported within Mexico are at the risk of the Customer and such shipments will not have insurance coverage by or through Airspace or Carrier. Customer agrees that any loss, damage, or delay that occurs to cargo in Mexico, including delivery to at any Customer-directed locations such as Customer’s customs brokers’ premises, shall be evaluated pursuant to only Mexican law and the Carmack Amendment will not apply, including if the shipment is traveling on a through bill of lading or a portion of the Services are performed outside of Mexico. In addition, for any Services performed in Mexico, Customer shall bear the risk for any loss or damage to any brokered trailers. IN ANY SUBSEQUENT LEGAL ACTION TO RECOVER DAMAGES FOR A SHIPMENT TO OR FROM MEXICO, CUSTOMER HEREBY AGREES THAT THE MAXIMUM AMOUNT SOUGHT WILL BE LIMITED TO THE LEGAL LIABILITY OF THE MEXICAN MOTOR CARRIER, REGARDLESS OF WHERE THAT CLAIM IS FILED, AND CUSTOMER AFFIRMS THAT THESE TERMS ARE BINDING ON THE CUSTOMER, CONSIGNEE, AND THEIR ASSIGNS.
5. Customer acknowledges and agrees that Airspace shall bear no liability for cargo loss or damage arising from or related to the performance of motor carrier services by Carriers. Airspace may facilitate the claims filing process with Carriers if Customer submits to Airspace within forty-five (45) days from the date of delivery a written claim fully supported by all relevant documentation including but not limited to the signed delivery receipt and listing the nature, cause, and specific amount of the claimed loss or damage. Airspace may, in its sole discretion and without liability to Customer, discontinue pursuit of claims with the Carrier if such claim is not resolved within sixty (60) days of receipt by Airspace.
6. The Services shall be understood as “contract carriage” within the meaning of 49 USC 13102(4)(B), and the Parties each expressly waive all rights and remedies they may have as to each other under 49 USC, Subtitle IV, Part B to the full extent permitted by 49 USC 14101 (b)(1), each as amended from time to time, to the extent that such rights and remedies conflict with these Terms.

1.2 Freight Forwarding Services

To the extent the Services include surface freight forwarding:

1. Airspace represents and warrants that it is duly and legally qualified as an interstate freight forwarder pursuant to FMCSA-issued permit identified as U.S. DOT No. 2457408 and Docket No. FF-51257, the Services of which may include: (a) providing or arranging for transportation of Customer’s cargo, by third-party rail, motor, or water carriers, from place of receipt to the place of destination; (b) issuing bills of lading and related shipping documents; (c) assembling, consolidating, or providing for the assembly and consolidation of Customer’s shipments; and (d) performing or providing for break-bulk, consolidation, deconsolidation, warehousing, and distribution operations of Customer’s shipments.
2. Airspace shall ensure each shipment transported is evidenced by a bill of lading and that the applicable bill of lading contains the name and address of the shipper, the destination address, and consignee name.
3. The Parties agree that Airspace shall bear direct and primary liability, regardless of the nature of the commerce. Liability for cargo loss or damage shall be that of a motor carrier as provided for in 49 USC 14706 (the “Carmack Amendment”). Notwithstanding regulations related to the salvage of goods, claims shall be processed pursuant to 49 CFR Part 370.1 et seq.

1.3 Air Freight Forwarding

To the extent the Services include air freight forwarding service:

1. Airspace shall perform those air cargo forwarding services as an IAC set forth herein or as otherwise requested by Customer subject to these Terms. Airspace will directly or indirectly arrange for those underlying transportation service providers to perform air transportation and delivery of cargo.
2. Airspace is a TSA-approved IAC and will at all times operate in compliance with the security measures outlined in its Indirect Air Carrier Standard Security Program (“IACSSP”).
3. Each shipment will be evidenced by an air waybill and will be legibly signed by Airspace or the air carrier showing the kind and quantity of the goods received at the loading point(s) specified. Upon delivery, the air carrier will obtain a delivery receipt signed by the consignee showing the kind, quantity, and condition of the goods delivered at the specified destination and the time of delivery. Absence or loss of any waybill will not relieve Airspace of responsibility for freight accepted by it.

1.4 Air Charter Services

To the extent the Services include air charter services where Airspace acts in its capacity as Customer’s agent:

1. Customer hereby appoints Airspace to act as its true and lawful agent for the limited purpose of arranging for the charter of aircraft for purposes of transporting Customer’s cargo. Airspace hereby accepts Customer’s appointment as its agent and agrees to perform as such according to these Terms. Airspace will have the power and authority to perform all tasks required or necessary to accomplish the arranging for the charter of aircraft as per the written instructions provided by Customer.
2. In performing air charter services, Airspace acts as an air charter broker that, on behalf of Customer and in accordance with Customer’s instructions and these Terms and agrees to arrange air transportation to be provided by an air carrier to Customer and to arrange for additional services, as requested and agreed. Airspace does not own or operate aircraft and it does not act, or hold itself out as acting, as an air carrier. Airspace shall not and does not offer or provide, by subcontract or otherwise, services to Customer that involve Airspace’s acting as a carrier under any form of transportation. Airspace shall utilize reasonable efforts to procure that Customer is named as an additional insured in respect of the aviation liability insurances of each air carrier performing an air charter hereunder.
3. Customer shall be responsible for ensuring that: (a) the cargo is properly and sufficiently packaged, labelled and/or marked in a manner that is appropriate to any operations or transactions affecting the cargo and the characteristics of the cargo and is otherwise prepared for shipment; (b) the cargo fully complies with all applicable laws, including any laws relating to the carriage of dangerous goods (including IATA and ICAO requirements); (c) the cargo does not contain any prohibited drugs, prohibited or stolen goods, contraband or other illegal material or substance prohibited for carriage by air or any other mode of transport; (d) all import or export licenses and other documentation relating to the cargo necessary to comply with all applicable laws and regulations have been obtained and are current; and (e) the cargo is available at the place and at the time and date agreed upon by the Parties (but which may be varied by the underlying carrier or Airspace with notice to Customer in light of any circumstances affecting a particular flight) and customs cleared and security screened (if necessary) at the departure airport, and duly collected from the destination airport or place of collection within the timeframe agreed upon by the Parties.
4. Airspace shall not be responsible for maintaining customs authorizations or bonds and it shall not be responsible for the customs clearance of any cargo carried under any air charter. Airspace does not act as a customs broker. Customer shall be responsible for making arrangements for customs clearance of cargo, except or unless Airspace has agreed in writing, acting only as agent for and on behalf of Customer, to engage a third-party customs agent to provide customs clearance services to Customer.
5. Time shall not be of the essence with respect to the performance of any air charter. The flight times and other times specified in any order form are approximate and are not guaranteed. Airspace shall use its commercially reasonable efforts to avoid or minimize delays. If the departure of an air charter is delayed at the request of Customer, or as a result of any act or omission of Customer, Customer shall reimburse Airspace in full for any additional losses incurred by Airspace as a result and any additional costs invoiced by the air carrier (including demurrage). If Customer cancels the air charter, Customer shall pay any applicable cancellation charges. Customer shall be responsible for any and all additional expenses, costs, damages, or losses (including without limitation those related to accommodation, refreshments, meals, and transportation) arising out of any delay, deviation, or diversion of the air charter. If the air carrier cancels or otherwise does not perform the air charter or does not make the capacity of the aircraft available in full and such cancellation, non-performance, or non-availability is not the result of any act or omission of Customer or Airspace, Airspace shall reimburse to or credit Customer promptly the net amount, if any, that Airspace is able to recover from the air carrier but shall bear no other liability.
6. Customer agrees that Airspace is under no obligation to disclose separately to Customer the amount of Airspace’s commission. Unless stated otherwise in an air charter, the price payable to the air carrier shall include charges for scheduled aircraft operation, crew and fuel, standard aircraft handling charges and standard loading and offloading charges; the air charter shall include a list of material items which are not included in the quoted price.
7. Unless otherwise stated, the charter price does not include any taxes or duties or any other charges made by any relevant authority or any service provider in relation to the transportation of cargo, including any royalties or non-objection fees, de-icing charges, ground or terminal handling charges, airport opening extension fees, unscheduled night stop fees, non-standard loading and/or unloading equipment charges (such as for use of cranes or other specialist loading equipment), cargo taxes, cargo service charges, airport cargo duty, cargo screening charges, cargo storage charges, insurance costs, security charges at airports, air carrier war risks insurance premiums, or customs fees, all of which shall be charged to Customer.

Quotations Not Binding

Quotations as to fees, rates of duty, freight charges, or other charges given by Airspace to Customer are for informational purposes only and are subject to change without notice; no quotation is binding upon Airspace unless Airspace in writing agrees to undertake the handling or transportation of the shipment at a specific rate or amount set forth in the quotation and payment arrangements agreed to between Airspace and Customer.

COD Shipments

Airspace will use reasonable care regarding written instructions relating to “Cash/Collect on Delivery (C.O.D.)” shipments, bank drafts, cashier’s or certified checks, letter(s) of credit and other similar payment documents or instructions regarding collection of monies but shall not have liability if the bank or consignee refuses to pay for the shipment.

Shipping Documents

Customer acknowledges that the Services will be subject to and governed by these Terms as well as any bills of lading, waybills, tariffs, circulars, terms and conditions, or other shipping documents issued by Airspace or the respective carriers (collectively, the “Shipping Documents”). Airspace shall request its carriers to promptly issue and deliver all bills of lading related to the goods within forty-eight (48) hours of their issuance. Upon request of Customer, Airspace shall instruct the delivering carrier to obtain a delivery receipt from the consignee, showing the goods delivered, condition of the shipment, and the date and time of such delivery. If Airspace is performing motor carrier brokerage only, then Customer’s insertion of Airspace’s name as carrier on the bill of lading or waybill shall be for Customer’s convenience only and shall not change Airspace’s status or the nature of its services.

Third Parties and Routes

Unless underlying services are performed by persons or firms engaged pursuant to express written instructions from the Customer, Airspace shall use reasonable care in its selection of third parties, or in selecting the means, route, and procedure to be followed in the handling, transportation, and delivery of the shipment. Advice by Airspace that a particular person or firm has been selected to render services with respect to the goods shall not be construed to mean that Airspace warrants or represents that such person or firm will render such services nor does Airspace assume responsibility or liability for any actions(s) or inaction(s) of such third parties or its agents.

Customer’s Goods

Customer represents and warrants that it has: (a) submitted true, accurate, and correct information regarding itself, its goods, and the circumstances of its shipment; (b) sufficient right, title, and interest in and to the freight allowing it to tender for transportation; (c) not and will not tender any items prohibited by Airspace or by the performing carrier; and (d) not and will not violate any applicable law or regulation of any governmental authority with jurisdiction over it, its freight, or the transportation services it is requesting.

Dangerous Goods

At the time of shipment of any Dangerous Goods (as defined under Exhibit “A”), Customer shall comply with all regulations governing the transport of such cargo and have the same properly packed, distinctly marked, labeled, and provide written notice to Airspace prior to tender of their proper description, nature, and precautions to be taken. Further, Customer shall follow all provisions contained in Exhibit A.

Customer’s Responsibilities

Customer is responsible for adequately preparing, marking, packing, packaging, labeling, and properly describing the contents of the shipment so as to ensure safe transportation with ordinary handling. Customer must comply with all applicable local, state, and federal laws, including those governing packing, packaging, marking, and labeling for all shipments. Customer is responsible for any errors in completing bills of lading or shippers instructions that may result in additional billing, including, but not limited to incorrect addresses, incorrect weight information, and incorrect pick-up or delivery times. If Customer communicates to Airspace that no delivery signature is required, Airspace shall not be responsible for any loss that occurs after the delivery of shipment.

Reliance on Information Provided

Customer acknowledges that it is required to review and confirm the accuracy of all information, documents, and declarations submitted to Airspace, or to the underlying carriers. Customer must immediately advise Airspace or the underlying carriers of any errors, discrepancies, incorrect statements, or omissions. Customer warrants that it will use reasonable care to ensure the correctness of all such information and it shall indemnify Airspace and the carriers for any and all claims asserted, liabilities, or losses suffered by reason of its failure to disclose information or any incorrect or false information upon which Airspace or the carriers reasonably relied. Customer’s duties and obligations under this paragraph are affirmative and non-delegable.

Shipment Weight and Inspection

All freight tendered to Airspace is subject to reweighing and recalculation of charges based on such reweighing. Increments over one pound are rounded to the next pound. All shipments are subject to inspection by Airspace at its discretion without notice.

Right of Refusal

Airspace reserves the right to refuse or reject any shipment and may do so in its sole discretion and without liability. Airspace may exercise this right at any time and includes situations (among others) when a shipment may cause damage to or delay other shipments, property, or personnel; is likely to sustain damage or loss in transit due to improper packaging; contains prohibited items; the account of Customer is not in good standing; or when acceptance of a shipment may jeopardize Airspace’s ability to provide service to other customers.

Undeliverable Shipments

Airspace will hold undeliverable shipments and will notify Customer. If Customer cannot be notified, the shipment will be held for thirty (30) days after the attempted delivery date. After thirty (30) days, the shipment will be disposed of at Airspace’s discretion. Customer will be responsible for all transportation, delivery attempts, storage and disposal charges.

Special Arrangement Required

Shipments weighing in excess of one hundred (100) pounds and/or shipments of which the sum of the greatest outside length plus the greatest outside height plus the greatest outside width (i.e., DIM weight) exceeds ninety (90) inches will require additional detailed steps to ship. For further information regarding larger shipments please Contact Airspace Operations Support at (855) 524-7772.

Delay Claims

Customer acknowledges and agrees that Airspace and any carrier will bear no liability for delay in delivery of cargo. In no event will Airspace or any carrier be responsible for any chargebacks or other penalties or assessments imposed by the consignor or consignee with respect to late deliveries.

All Other Claims

Airspace shall bear no liability to Customer, except as expressly set forth in these Terms, unless Customer’s damages are directly caused by the sole negligence or willful misconduct of Airspace or its employees in its performance of the Services. Customer shall notify Airspace within sixty (60) days of learning of any claims and shall file any such claims with Airspace within one hundred eighty (180) days from the date of initial notice. Any civil action must be commenced in a court of law within one (1) year from the date on which Customer provides initial notice to Airspace of such a claim.

Dangerous Goods

“Dangerous Goods” means those commodities that are imported, exported or otherwise transported in accordance with the provisions set forth in one or more of the following:

1. Title 49 of the U.S. Code of Federal Regulations (“CFR”). The only Dangerous Goods accepted for air transport under 49 CFR are ORM-D (Consumer commodities), and only for transportation within and between the United States and Puerto Rico;
2. The “Dangerous Goods Regulations” published by IATA;
3. The “Technical Instructions for the Safe Transport of Dangerous Goods by Air” published by the International Civil Aviation Organization (“ICAO”); and
4. Other mandatory applicable law.

The transportation service for shipments containing dangerous goods is to be accompanied by a separate waybill.

• The Customer must declare dangerous goods commodities upon tender of shipment to Airspace.
• The Customer shall ensure that dangerous goods are packed safely and appropriately and is liable for any damages resulting from improper packaging, marking, packing or labeling. All dangerous goods shall comply, as applicable, with the IATA Dangerous Goods Regulations, International Maritime Dangerous Goods Regulations (IMCG), the United States Department of Transportation (DOT) Title 49 of the CFR, Commission Regulation (EU) No. 965/2012 on Air Operations, and relevant ICAO Technical Instructions and the European Agreements Concerning the International Carriage of Dangerous Goods by Rail (RID) and by Road (ADR) and any other national or international provision with respect to their classification, type of packaging, marking, packing, handling and labeling of Dangerous Goods.
• Prior to the transportation of any Dangerous Goods, Customer shall provide Airspace with a current Material Data Safety Sheet, a Shipper’s Declaration of Hazardous Goods and any other Dangerous Goods document required to be prepared in connection with a Dangerous Goods shipment.
• Depending on the mode of transportation, infectious substances such as blood, urine, etc., that fall under the UN3373 category must be packed and labeled pursuant to IATA DGR Packing Instructions (air freight), or RID Instructions P650 (rail/road/sea). The package must accordingly contain leakproof primary and secondary containers each with approved packaging materials and the container must meet the specified test criteria.
• Each consignment shall be marked legibly and durably with the name, street address, city, country, and postal code of the shipper and consignee. The outside of the container shall bear the proper shipping name(s), technical names, and UN ID#s of the contents. In addition, a 24-hour emergency contact that can provide details of the contents during the period of transportation shall be clearly indicated. A shipper’s document, which clearly identifies and describes the contents, shall be placed inside the packaging of each dangerous goods shipment.
• The Customer shall ensure that dry ice consignments contain an adequate quantity of dry ice to keep the contents cool as long as necessary/required. At Customer’s request, Airspace may, but shall not be required to, refill the container with dry ice during transportation. In no event shall Airspace be liable for the repackaging of any container that dry ice is added to following Customer’s request.
• Airspace reserves the right to accept and/or decline any consignment of dangerous goods from Customer.
• Airspace reserves the right to return a dangerous goods consignment that leaks, releases odors, has damaged packaging, or is otherwise damaged, to the Customer. The Customer shall bear all costs regarding the shipment, such as transport back to the Customer, destruction of the consignment, measures taken to prevent accidents, etc.
• Acceptance of a consignment of dangerous goods by Airspace does not automatically guarantee acceptance by the intended carrier.
• Customer shall indemnify, defend, and hold harmless Airspace its officers, employees and agents against any and all claims, liabilities, losses, fines, reasonable attorneys’ fees and legal expenses arising out of or related to the exposure to or release of any Dangerous Goods, including without limitation, fines or expenses relating to the removal or treatment of Dangerous Goods or any other remedial action pertaining to Dangerous Goods under federal, state or foreign law. Provided, however, Customer shall have no such obligation in the instance where the underlying carrier, driver, or shipper is the proximate cause of any such exposure or release.