Tobin & Sons Moving and Storage, Inc. d/b/a Tobin Scientific
TRANSPORTATION TERMS & CONDITIONS
BY TENDERING YOUR SHIPMENT TO TOBIN & SONS MOVING AND STORAGE, INC. D/B/A TOBIN SCIENTIFIC (“TOBIN SCIENTIFIC”) FOR TRANSPORTATION, AND IN CONSIDERATION OF TOBIN SCIENTIFIC’S RATES AND CHARGES FOR ITS SERVICES, YOU (THE “SHIPPER”) AGREE THAT THE FOLLOWING TERMS, RULES AND CONDITIONS SHALL GOVERN ALL SERVICES PROVIDED BY TOBIN SCIENTIFIC. NONE OF THESE TERMS AND CONDITIONS CAN BE CHANGED OR AMENDED EXCEPT BY A WRITTEN AGREEMENT SIGNED BY TOBIN SCIENTIFIC. IF YOU HAVE ANY QUESTIONS, CALL (800) 974-0400.
1. Definitions. As used in these Terms and Conditions, the following terms shall have the following respective meanings:
“Bill of lading” means a receipt or similar origin document issued by a motor carrier, here Tobin Scientific, upon its receipt of a Shipment (as defined below) for transportation.
“Broker” means a person, other than a motor carrier or an employee or agent of a motor carrier, that as a principal or agent sells, offers for sale, negotiates for, or holds itself out by solicitation, advertisement, or otherwise as selling, providing, or arranging for, transportation by motor carrier for compensation. 49 U.S.C. §13102(2).
“Business day” means Monday through Saturday except the following holidays: New Year’s Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, Christmas Day (December 25), and New Year’s Eve.
“Charges” means all applicable transportation and related charges including, but not limited to all applicable accessorial charges, surcharges, additional handling charges and late payment fees.
“Consignee” means the person identified in the bill of lading or similar origin document to whom a Shipment of property, as defined below, is consigned and who will receive the Shipment at destination. The term “Consignee” includes the Consignee’s actual or apparent agents, representatives or other person designated to act or acting on the Consignee’s behalf.
“Delivery” includes, but is not limited to: (1) physical delivery of a Shipment, as defined below, to the destination point specified in a bill of lading by Shipper, the Consignee or the Consignee’s actual or apparent agent or representative, (2) delivery to the address or location specified by Shipper in a bill of lading or to any person present at such address, (3) delivery in accordance with trade, custom or usage, or (4) delivery otherwise permitted under these Terms and Conditions.
“Motor carrier,” “carrier” or “subcontracted motor carrier” mean the person providing motor vehicle transportation for compensation. See, 49 U.S.C. §13102(14).
“Motor vehicle.” The term “motor vehicle” means a vehicle, machine, tractor, trailer, or semitrailer propelled or drawn by mechanical power and used on a highway in transportation, or a combination determined by the Secretary of Transportation or the Federal Motor Carrier Safety Administration (“FMCSA”), but does not include a vehicle, locomotive, or car operated only on a rail, or a trolley bus operated by electric power from a fixed overhead wire, and providing local passenger transportation similar to street-railway service. See, 49 U.S.C. §13102(16).
“Services” means Tobin Scientific’s transportation of property by motor vehicle for compensation, as defined at 49 U.S.C. §§13102(14), (16) and (23), together with all related accessorial services including but not limited to the packing, loading, crating, handling and unloading of Shipments of property, and, when requested by Shipper and agreed to by Tobin Scientific, providing specialized redundant generator and trailer calibration services. “Services” also includes Tobin Scientific’s arranging for transportation as a transportation broker, as defined above.
“Shipment” means one or more goods, articles, crates, cartons or items of property or cargo transported from one origin under one receipt, bill of lading, quotation or similar origin document consigned for delivery to one Consignee at one destination.
“Shipper” means the beneficial owner of the goods, articles, crates, cartons or items of property in a Shipment, and those of any other party (including brokers and other originating motor or air carriers) on whose behalf or for whose account Tobin Scientific is performing Services.
“Transit Time” means the transportation and delivery of Shipments with reasonable dispatch under the circumstances peculiar to each Shipment and consistent with industry standards and practices.
“Transportation.” The term “transportation” includes—(A) a motor vehicle, vessel, warehouse, wharf, pier, dock, yard, property, facility, instrumentality, or equipment of any kind related to the movement of passengers or property, or both, regardless of ownership or an agreement concerning use; and (B) services related to that movement, including arranging for, receipt, delivery, elevation, transfer in transit, refrigeration, icing, ventilation, storage, handling, packing, unpacking, and interchange of passengers and property.” See, 49 U.S.C. § 13102(23).
2. Scope and Applicability. These Terms and Conditions apply to Tobin Scientific’s transportation of all Shipments between points in the United States, except as otherwise provided in a written agreement signed by the Shipper and Tobin Scientific. Tobin Scientific’s liability shall commence when it receives physical custody and control of the Shipment and shall terminate on Delivery of the Shipment. In the event of any conflict or inconsistency between these Terms and Conditions and those contained in any bill of lading, receipt or similar origin document, these Terms and Conditions shall supersede, govern and apply exclusively to the Services performed by Tobin Scientific.
3. Tobin Scientific’s Operating Authority and Compliance. Tobin Scientific is duly registered with the FMCSA as a motor carrier of property and as a transportation broker in Docket No. MC-205013 and with the U.S. DOT in No. 342626 and is legally qualified and authorized in accordance with all federal, state, provincial, territorial, and local laws, statutes, regulations, rules, and ordinances to operate as a motor carrier of property and provide the Services. Tobin Scientific will provide copies of such authorizations to Shipper upon request.
4. Tobin Scientific Fees and Rates for Services. In consideration for Tobin Scientific’s under these Terms and Conditions, Shipper agrees to pay Tobin Scientific: (a) the rates, fees and charges set forth in Tobin Scientific’s quotation or rate confirmation document to the Shipper or in an executed rate agreement, (b) any applicable fuel surcharges described in these Terms and Conditions, and (c) all other applicable fees and charges as described in these Terms and Conditions. Tobin Scientific shall take any steps required by law to make such rates applicable to the services rendered under the Terms and Conditions. Shipper agrees to pay Tobin Scientific within thirty (30) days after receipt of Tobin Scientific’s invoice. Additionally, any amounts not timely paid shall incur a late fee of 1.5%, compounded monthly, of the total invoice due.
5. Fuel Surcharges. Tobin Scientific reserves the right to apply fuel surcharges, to be billed to Shipper, on some or all Shipments without prior notice. The surcharges are subject to adjustment weekly. The surcharges may apply to any domestic or international transportation or other charges including, but not limited to, any accessorial charge or surcharge. The current fuel surcharges are set forth at https://www.tobinscientific.com or call (800) 974-0400 for applicable fuel surcharges. The surcharges will be applied to such Services and for such periods as Tobin Scientific, in its sole and unlimited discretion, may determine necessary.
6. Shipping Charge Corrections; Audit Fee. Tobin Scientific reserves the right to bill Shipper additional Charges based upon the characteristics of, and services requested for, Shipments actually tendered to Tobin Scientific. Tobin Scientific also reserves the right to audit any Shipment and/or invoice to verify service selection, dimensions, or weight, and applicability of any Charges. Tobin Scientific may in its sole and unlimited discretion increase or adjust Charges based on the results of such audit. Tobin Scientific reserves the right in its sole and unlimited discretion to bill for Charges based on shipping characteristics provided by the Shipper, regardless of whether Tobin Scientific has audited the shipping characteristics. An audit fee may be assessed for shipping charge corrections.
7. Equipment Furnished by Tobin Scientific. Tobin Scientific agrees to furnish such motor vehicles as are necessary to perform its obligations under these Terms and Conditions. All such motor vehicle equipment shall be in good, safe and lawful operating condition and in compliance with all applicable safety rules and regulations of the U.S. DOT and any state safety agencies having jurisdiction over its vehicles.
8. Commodity Exclusions; Prohibited Articles. Except as provided by a written agreement executed by Shipper and Tobin Scientific, no Services shall be rendered and Tobin Scientific shall not be liable or responsible for any loss, damage or claim arising from or related to the transportation of any of the following prohibited commodities:
Articles of Extraordinary Value (defined as an item with a value of more than $100 per pound).
Category A Infectious Substances or Category B Biological Substances as defined in 49 C.F.R. § 173.134.
Fireworks, replica or inert explosives or weapons that bear an appearance to actual explosives or weapons.
Firearms, firearm parts or components, ammunition or ammunition components.
as defined in the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. §321(f) and the FDA Food Safety Modernization Act, 21 U.S.C. §§ 301.
Hazardous materials, defined as those materials regulated under Title 49 of the Code of Federal Regulations, 49 C.F.R. §§ 172, 173, et seq., or commodities the transportation of which is governed by or subject to the Hazardous Materials Transportation Act, 49 U.S.C. §5101, et seq., (including/excluding Limited Quantity/Other Regulated Materials Shipments (“ORM-D”) Ground Parcels, as referenced below).
Hazardous waste, defined as a solid waste that meets any of the criteria of the hazardous waste as described in 40 C.F.R. § 261.3;
Human remains, fetal remains, human body parts, human embryos, or components thereof.
Commodities otherwise Prohibited by Law. No Service shall be provided by Tobin Scientific for any Shipment prohibited by applicable law or regulation of any federal, state, or local government. It is Shipper’s responsibility to ensure that all Shipments tendered to Tobin Scientific do not violate any applicable federal, state, provincial or local laws or regulations.
Perishable Commodities, meaning commodities requiring protective service or temperature-controlled transportation—protection from heat or cold.
Shipments consigned or addressed to post office boxes, Army Post Office (APO) or Fleet Post Office (FPO) addresses.
Shipments containing drugs or pharmaceuticals.
Shipments containing marijuana, as defined in 21 U.S.C. § 802(16), including marijuana intended for medicinal use, and Parcels containing Hemp, as defined in 7 U.S.C. § 1639o, when in plant form.
Shipments with an actual value of more than $100,000 (“Maximum Value”).
Tobacco Products, including but not limited to any product made or derived from tobacco that is intended for human consumption, including any component, part, or accessory of a tobacco product, e-cigarettes, e-hookah, e-cigars, vape pens, advanced refillable personal vaporizers, and electronic pipes.
Any other items prohibited in these Terms and Conditions as may be described below.
Tobin Scientific reserves the right, but is not required, to return to Shipper any Shipment containing a prohibited article, at Shipper’s risk and expense. Tobin Scientific also reserves the right in its sole and unlimited discretion to dispose of a prohibited article tendered to it for Services. Shipper shall indemnify, defend, and hold harmless Tobin Scientific, its officers, directors, stockholders, employees, agents from all claims, demands, expenses, liabilities, causes of action, judgments, damages, interest, enforcement procedures, lawsuits, costs and expenses, including reasonable attorney’s fees, of any kind or nature, arising from or relating to a Shipment consisting of any of the above-described property or prohibited articles in violation of these Terms and Conditions.
9. Special Service Restrictions:
- Refusal of Service. Tobin Scientific reserves the right to refuse to transport any Shipment as determined solely by Tobin Scientific (i) that due to its contents may damage other Shipments or Tobin Scientific’s equipment; (ii) is improperly labeled, or improperly or insecurely packaged, packed or wrapped; (iii) for which it is economically or operationally impracticable to provide Service; or (iv) for which the Services to be rendered would be in violation of federal, state, or local law, or for fraudulent purposes.
- Packaging. Shipper warrants that each Shipment shall be properly packaged to withstand the rigors of ordinary over-the-road transportation, will not contaminate other lading with which it may be co-loaded. Shipper is responsible for adequately packaging, marking and labeling its Property and accurately completing each bill of lading or similar origin document. If Shipper omits the number of packages and/or weight per package, Tobin Scientific’s billing will be based on its best estimate of the number of packages in the Shipment and/or an estimated “default” weight per package as determined by Tobin Scientific.
- Labeling. Where necessary, each Parcel must be properly and accurately labeled, accurately describing the Property in the Shipment, and have a label showing the Consignee’s correct and full name, complete delivery address, zip code and telephone number. Shipper shall ensure that proper packaging is used and that contents are adequately and securely packed, wrapped, and cushioned for transportation. Acceptance of tender by Tobin Scientific does not indicate that the Shipment is properly labeled and packed. Tobin Scientific does not provide special handling for Shipments with “Fragile,” orientation markings (e.g., “UP” arrows or “This End Up” markings), or any other similar such markings. Tobin Scientific is not liable or responsible for loss of, damage to, or irretrievability of data stored on media of any type, or for loss of information, including without limitation personal, health or financial information. Except as otherwise provided in a written agreement, all Shipments must be palletized, stackable, able to be lifted by forklift, and shrink wrapped or banded to a skid. Shipper must ensure that pallets and packaging comply with all applicable laws and regulations.
- If Shipper tenders a Shipment to Tobin Scientific for transportation that contains hazardous materials or dangerous goods as defined at 49 U.S.C. §5101 and 49 C.F.R. §§ 171-173 (“hazmat Shipments”) without prior full written disclosure to Tobin Scientific of their nature, and Tobin Scientific inadvertently accepts the Shipment for transportation, Shipper shall be liable for and indemnify Tobin Scientific against all injury, loss, damage, delay and other consequential damages arising from its transportation of such Shipment. Such hazmat Shipments may be warehoused or held in transit by Tobin Scientific at Shipper’s or owner’s sole risk and expense or destroyed without compensation. If the description of articles or other information on the receipt, bill of lading or other origin document is found to be incorrect or incomplete, Tobin Scientific’s freight charges will be recalculated accordingly and must be paid based upon the articles actually shipped.
Shipper shall defend, indemnify and hold Tobin Scientific and any subcontracted motor carrier harmless from any claims arising from a breach of the foregoing Service Restrictions (a) through (d).
10. Acceptance of Delivery; Undeliverable or Refused Shipments.
- If the Consignee refuses a Shipment tendered for delivery or if Tobin Scientific is unable to deliver a Shipment due to fault or mistake of Shipper or Consignee, Tobin Scientific’s liability shall immediately become that of a warehouseman. Tobin Scientific shall attempt to provide notice, by telephonic or electronic communication, to Shipper or the identified party, if any, designated to receive notice on the Bill of Lading. Where the Consignee refuses a Shipment tendered for delivery as described above and Tobin Scientific’s status becomes that of a warehouseman, Shipper shall be liable to Tobin Scientific for additional delay charges of $5,000 (Five Thousand Dollars) per day or any portion thereof, which shall start to accrue immediately following Tobin Scientific’s notice as referenced above. Tobin Scientific may place the Shipment in storage or other repository at Shipper’s or owner’s expense and without liability to Tobin Scientific in any location that provides reasonable protection against loss or damage.
- In the event of a refused or undeliverable Shipment, Tobin Scientific, in its capacity as a warehouseman, may elect to return the Shipment to the Shipper at Shipper’s expense, including, but not limited to, forwarding costs, return transportation charges and all other applicable Charges, duties, taxes and all applicable surcharges. All original Charges will continue to apply as if the Shipment were delivered to the original delivery address.
- If Tobin Scientific does not receive disposition instructions within two (2) hours of its first notice to Shipper of its tender of delivery, Tobin Scientific may dispose of the Shipment and the contents of any shipping containers (including but not limited to refrigerators and freezers) without liability and at Shipper’s expense. If such disposal results in Tobin Scientific ’s receiving any proceeds from a sale, such proceeds will be applied first to Tobin Scientific’s invoice for transportation, storage, and other lawful charges. Shipper or owner will be responsible for the balance of charges not covered by the sale of the goods. If there is money remaining after all charges and expenses have been paid, such funds will be paid to the Shipper or owner of property sold hereunder upon claim and proof of ownership.
- Where Tobin Scientific has reasonably attempted to follow the procedures set forth in subsections (a), (b) and (c) above but is unable to do so, Tobin Scientific, at its option and without liability except for gross negligence, may sell the Shipment under such circumstances and in such manner as may be authorized by law. When perishable goods cannot be delivered and disposition is not given within a reasonable time, Tobin Scientific may dispose of the property to its best advantage, without liability except for gross negligence.
- Where Tobin Scientific is directed by Shipper or consignee to unload or deliver property at a particular location where Shipper, consignee, or the agent of either is not regularly located, Tobin Scientific shall not be liable for any risk of loss, damage, or harm to the goods.
- Tobin Scientific’s right to dispose of a Shipment includes, but is not limited to, situations where Tobin Scientific determines in its sole and unlimited discretion that it is unsafe or economically or operationally impracticable to provide delivery or return service or where the Shipment is perishable.
11. Overcharge or Undercharge Claims. The time limit for filing of claims for alleged undercharges or overcharges under these Terms and Conditions shall be eighteen (18) months from the date of delivery of the Shipment. Failure to file a claim challenging initial charges within the eighteen (18) month period shall forever bar any action at law for recovery of such charges. Any action at law by either Tobin Scientific or Shipper to collect alleged undercharges or overcharges must be commenced not later than eighteen (18) months after delivery of the Shipment. Expiration of the eighteen (18) month term shall be a complete and absolute defense against any such claim, regardless of any extenuating or mitigating circumstances or excuses of any nature.
12. Subcontracting. If Tobin Scientific is unable for any reason to perform the requested Services by operating its own motor vehicle equipment, it may fulfill its obligations by brokering (pursuant to its FMCSA broker registration in Docket No. MC-205013) or subcontracting the transportation Services to other motor carriers. If Tobin Scientific arranges for the transportation of Shipper’s property under its broker authority, Tobin Scientific shall remain liable to Shipper as if Tobin Scientific transported the Shipment as a motor carrier and subject to these Terms and Conditions.
13. Tobin Scientific’s Duties and Obligations. Tobin Scientific will:
(a) furnish Shipper with all Services requested by Shipper;
(b) process any claim for loss of or damage to Property in accordance with these Terms and Conditions; and
(c) maintain good standing with the FMCSA and comply with all rules and regulations of the FMCSA applicable to motor carriers of property and transportation brokers.
14. Insurance. Tobin Scientific shall procure and maintain, at its sole cost and expense, all insurance coverages required by any federal, state or local laws or regulations governing its operations, and shall make such insurance available to Shipper on request.
15. Tobin Scientific’s Liability. The standards, principles and precedents of federal law, to wit: 49 U.S.C. §14706, shall govern Tobin Scientific’s liability for any loss, damage or delay to a Shipment regardless of whether the Shipment moves in interstate, foreign, or intrastate commerce, as hereinafter provided. Tobin Scientific shall not be liable for any loss or damage to a Shipment or for any delay caused by an Act of God, pandemic, the public enemy, the public authority, the authority of law, inherent vice or defect in the cargo, or the act or default of Shipper. Tobin Scientific shall not be liable for loss, damage or delay which results when the property is stopped and held in transit upon request of Shipper, owner or party entitled to make such request; or from a faulty or impassible highway; or lack of capacity of a highway, bridge or ferry; or from a defect or vice in the property; or from riots or strikes; or from improper packaging or an act or omission on the part of Shipper.
16. Limitation of Tobin Scientific’s Liability.
(a) Except as provided below, Tobin Scientific’s liability for loss, damage or delay to any Shipment shall be limited to the sum of $100,000 (One Hundred Thousand Dollars) per shipment, unless Shipper declares a higher value, up to a maximum permitted declaration of $250,000, and pays an additional valuation charge. Contact Tobin Scientific at (800) 974-0400 for added valuation charges. All damage claims are subject to and may not exceed the above-described limitation. The declared value of a shipment is not insurance, and Tobin Scientific does not provide or sell cargo liability insurance.
(b) Under no circumstances will Tobin Scientific be liable for the loss, damage, or delay of or to the contents of any freezer, refrigerator or other shipping container or package transported in any Shipment.
(c) Shipper, on its own behalf and for its insurers, consignees or other interested parties, agrees to indemnify, defend and hold Tobin Scientific harmless from all damages, costs or expenses, including reasonable attorney’s fees, incurred by Tobin Scientific in defending any claim or lawsuit arising from or related to the loss, damage or delay of the contents of any freezer, refrigerator or shipping container transported by Tobin Scientific.
17. No Special, Incidental or Consequential Damages. Under no circumstances will Tobin Scientific or any subcontracted motor carrier be liable for special, incidental, indirect or consequential damage of any kind, including but not limited to loss of sales, business, interest, income, profit, loss of use, loss of market, loss of the contents of any refrigerator, freezer or similar container, sentimental value, lost opportunity, punitive damages, attorney’s fees, costs, or any other forms of damage whether direct, indirect, incidental, consequential or special and whether or not Tobin Scientific had knowledge that such damage might be incurred.
18. Cargo Loss, Damage and Delay Claims. The liability of Tobin Scientific and any subcontracted motor carrier for claims for loss, damage or delay to Shipments of Property will be determined in accordance with 49 U.S.C. §14706 regardless of whether the shipment moved in interstate, foreign or intrastate commerce and will be subject to the following limitations and provisions:
- As a condition precedent to recovery, claims for loss, damage or delay must be filed in writing with Tobin Scientific, 39 Tozer Road, Beverly, MA 01915 and must include sufficient information to identify the shipment, assert Tobin Scientific’s liability, and must set forth a specified or determinable amount of money claimed.
- Claims for loss, damage or delay must be in writing with Tobin Scientific within nine (9) months after the delivery of the Shipment, except that claims for failure to make delivery must be filed within nine (9) months after a reasonable time for delivery has elapsed.
- Lawsuits for loss, damage, injury or delay must be instituted against Tobin Scientific no later than two (2) years and one day from the day when written notice is given to the claimant that Tobin Scientific has disallowed the claim or any part or parts of the claim specified in the in the notice. Where claims are not filed or suits are not instituted thereon in accordance with the foregoing provisions, Tobin Scientific will not be liable, and such claims will not be paid.
- The claim-filing regulations of the FMCSA at 49F.R. §370, et seq. are hereby adopted and incorporated herein by reference and shall apply to all loss and damage claims against Tobin Scientific.
- Tobin Scientific shall have the full benefit of any insurance that may have been effected, upon or on account of said shipment, so far as this shall not void the policies or contracts of insurance, PROVIDED, that Tobin Scientific, on receiving the benefit of such insurance, will reimburse Shipper for the premium paid on the insurance policy or contract for the shipment.
- Shipper understands and agrees that Tobin Scientific’s rates and charges do not include insurance or other compensation for loss, other than as expressly provided herein and limited hereby. Accordingly, Shipper agrees that in the event it has or obtains its own insurance coverage for loss, damage or delay, said insurance will contain a waiver of subrogation clause waiving any subrogation rights for and on behalf of such insurance carrier. In the event Shipper fails to obtain a waiver of subrogation, Shipper will defend, indemnify and hold harmless Tobin Scientific and any carrier retained by it with respect to any claims made by Shipper or third Parties acting as subrogees of Shipper.
- Where 49 U.S.C. §14706 is not applicable to a cargo claim, Tobin Scientific’s liability will be determined by and subject to the terms and conditions in any through bill of lading issued by an originating carrier or by federal common law. HOWEVER, in no event will Tobin Scientific’s liability be greater than the limitations prescribed in Section 16(a) above.
19. Governing Law
. These Terms and Conditions shall be interpreted in accordance with Title 49, United States Code wherever applicable, otherwise in accordance with the laws of the Commonwealth of Massachusetts without reference to its conflicts of law provisions. Subject to the foregoing, the exclusive jurisdiction for any legal proceeding arising under or related to these Terms and Conditions shall be the state or federal courts in Massachusetts and Shipper expressly submits to the jurisdiction of such courts.
20. Severability. If any provision of these Terms and Conditions is held illegal or unenforceable by a court of competent jurisdiction then such provision(s) shall be severed and the remainder of these Terms and Conditions shall remain in full force and effect unless the business purpose of the Terms and Conditions is substantially frustrated thereby in which case these Terms and Conditions shall automatically be deemed void without the need for a court order or judge to ratify or confirm such termination.
21. Force Majeure. Neither Tobin Scientific nor Shipper shall be liable for a failure to performs its obligations hereunder where such failure is occasioned by strikes, acts of God, natural disasters, pandemics, war risks, acts of terrorism, acts of public authorities acting with actual or apparent authority, acts or omissions of customs or similar authorities, authority of law, the application of security regulations imposed by the government, or otherwise applicable to the Shipment, riots, strikes or other labor disputes, civil unrest, disruptions in national or local air or ground transportation networks, disruption or failure of communication and information systems, and adverse weather conditions or any other cause beyond such party’s control.
39 Tozer Road
Beverly, MA 01915
P 800 974 0400
F 978 977 9196