ACV Transportation, LLC

These ACV Transportation LLC Transportation Terms of Service (“TOS”) apply to the arrangement by ACV Transportation LLC (“Broker”) of for-hire motor carrier service, which may be tractor-trailer service or driveaway service for one or more motor vehicles (the “Services”). As used herein, “Shipper” shall mean the party requesting that Broker arrange for transportation governed by these TOS, and shall also include any consignor, consignee, or any other entity claiming an interest in the vehicle(s). Broker and Shipper may individually be referred to herein as a “Party” or collectively as the “Parties.”      

By requesting the Services via the remarketing platform of Broker’s affiliate, ACV Auctions Inc. (the “ACV Auctions Platform”), or the Broker’s online or mobile platform or downloaded software application (collectively, the “ACV Transportation Platform”), or by otherwise requesting or receiving the benefit of the Services from Broker, Shipper accepts and agrees to be bound by these TOS.

The person requesting the Services represents and warrants they have the right, authority and capacity to enter into these TOS, individually and/or on behalf of the company, entity or organization they represent, it being understood that no one under the legal age of majority is permitted to access the ACV Auctions Platform or ACV Transportation Platform or accept these TOS.  The person requesting the Services further represents and warrants they have the right, authority and capacity to bind any entity claiming an interest in the vehicle(s) to these TOS. Additional terms and conditions on transactional or shipment-specific documents, including, but not limited to, any bill of lading or similar documentation exchanged between the Parties shall not apply to any service performed under these TOS and shall not be binding on or applicable to Broker.

1.     SERVICES; TRANSPORT REQUESTS.

a.     The “Services” consist of Broker arranging, but not actually performing, for-hire transportation of the vehicle(s) (each, a “Vehicle”) identified in a Transport Request (as defined below). Shipper understands and agrees that Broker functions as an independent entity, and not as a motor carrier or driveaway service provider, in selling, negotiating, and arranging for transportation for compensation, and that the actual transportation of Vehicles shall be performed by third-party motor carriers or driveaway service providers (“Servicing Carriers”). The origin and destination locations for the transportation of the Vehicle shall be the pick-up and drop-off locations identified in the Transport Request.

b.     Requests for Services (each, a “Transport Request”) may be made via the ACV Auctions Platform, the ACV Transportation Platform or other method agreed to by Broker, and shall set forth the Vehicle being transported, the pick up and drop off location of the Vehicle, and such other information as required by Broker.

2.     COMPLIANCE WITH LAW.

a. Broker represents and warrants that it is duly and legally qualified to operate as a property broker  and to provide the Services contemplated herein. Broker agrees to comply with all federal, state and local laws regarding its provision of the Services.

b. Shipper is responsible for and warrants their compliance with all applicable laws, rules, and regulations including but not limited to customs laws, import and export laws and governmental regulation of any country to, from, through or over which the shipment may be carried. Broker assumes no liability to the Shipper or to any other person for any loss or expense due to the failure of the Shipper to comply with this provision.

3.     PAYMENT AND CHARGES.

a.     For each Transport Request Broker will provide to Shipper via the ACV Auctions Platform, ACV Transportation Platform or other mechanism as agreed to by the Parties, a quote which will include the fees for the Services (the “Broker Charges”). Shipper can accept the quote through the approval mechanism presented through the ACV Auctions Platform or ACV Transportation Platform, as the case may be, or such other mechanism as agreed to by the Parties. By accepting the terms of the quote, Shipper is agreeing to pay the quoted Broker Charges.

b.     If Services are requested through the ACV Auctions Platform, the Broker Charges will be invoiced by and payable to ACV Auctions Inc. upon invoice receipt. For all other orders, the Broker Charges are due and payable to Broker directly in accordance with payment terms set forth by Broker.

c.     The Broker Charges are refundable to Shipper until the time that the Services are commenced, which corresponds to when Broker places an order for the Services with a Servicing Carrier, such order based on the quote provided to and accepted by the Shipper (hereafter “Service Commencement”). For avoidance of doubt, if Shipper cancels Services after Service Commencement, Shipper is liable for payment in full of the Broker Charges. Shipper shall be liable for any expenses, including attorney fees and costs, that ACV Auctions, Inc. or Broker incurs in collecting its rates and charges.

d.     Broker’s ability to fulfill Shipper’s request and the accuracy of the Broker Charges included in the quote are based on the information in the Transport Request. If Shipper requests change to such information, including, but not limited to changes to pick-up or drop-off locations, Broker may not be able to accommodate such changes and/or such changes could result in an increase to the Broker Charges. Broker will notify Shipper if it can accommodate requested changes and if such changes will result in a change to Broker Charges. If Broker is unable to accommodate the requested changes or if Shipper does not accept any resulting increases to Broker Charges, Broker will provide the Services in accordance with the original quote unless Shipper chooses to cancel the Services.

e.     ACV Auctions Inc. and Broker reserve the right to amend or adjust the original quote amount or re-invoice Shipper if additional services by the Servicing Carrier were required or otherwise authorized by the Shipper to perform the pickup.

f.      If Shipper fails to provide reasonable cooperation to Broker in the provision of Services and such failure results in delivery delays and/or increased delivery costs, or other additional costs to Broker (i) Broker shall not be responsible for such delays, and (ii) Shipper shall be responsible for any additional or increased costs and shall pay Broker within ten (10) days of receipt of Broker’s invoice.

g.     ACV Auctions Inc. or Broker reserve the right to include a late payment charge on all issued invoices that are more than five (5) days past due, such charge calculated on the outstanding balance, at the lesser of (i) the rate of one and one-half percent (1 1/2)% per month or (ii) the highest legal rate authorized by applicable law. Delinquency in payment may result in further Transport Requests being declined.  Shipper agrees to pay all costs including reasonable collection costs, court costs, attorney fees and expenses related to the enforcement of Shipper’s obligations hereunder.  Upon payment by Broker of the freight charges owed to Servicing Carrier for the shipment or shipments in question, Broker has received an assignment of the Servicing Carrier’s right to collect said freight charges under  its bill of lading contract with Shipper, which may include the right to collect those freight charges from the consignor, consignee, the beneficial owner of the property, or other persons or entities claiming an interest in the cargo. Broker reserves the right to name all of the aforementioned persons and entities as additional defendants in the lawsuit to recover past due charges.

4.     BROKER CANCELLATION RIGHT.  Broker reserves the right, for good and reasonable cause, to cancel the Services before the Servicing Carrier delivers the Vehicle, without penalty; good and reasonable cause includes, but is not limited to, instances where continuation of the Services would pose safety and security concerns or if the Servicing Carrier experiences equipment failure such that it is unable to complete the Services as originally scheduled.  If Broker chooses to cancel the Services, it shall use commercially reasonable efforts to provide Shipper with as much advance notice as possible.  Broker shall not be responsible for any losses, damages or costs associated with such cancellation, other than to refund to Shipper any Broker Charges that have been prepaid for the Vehicle associated with the canceled Services or to cancel payment obligations for such Broker Charges if not yet paid.

5.     INDEMNIFICATION. The provisions of this section shall not apply to claims for cargo loss, damage or delay.

a.     Broker shall indemnify, defend, pay, reimburse, and save Shipper, its employees, and agents harmless from and against any and all third party claims or demands, and associated liability, damage, loss, costs, fines, penalties, or expenses (including attorney’s fees) of any kind whatsoever, including but not limited to personal injury, property damage, or any combination thereof, suffered or claimed to have been suffered by any person or persons, arising out of the Services to the extent such claim is directly and proximately caused by: (i) the negligence or intentional misconduct of Broker; (ii) Broker’s or its employees’ violation of applicable laws or regulations; or (iii) Broker’s or its employees’ or agents’ breach of these TOS. The foregoing notwithstanding, Broker shall have no liability to Shipper under this provision, or otherwise owe any obligation to Shipper under this provision, to the extent such liabilities or obligations arise from the negligence or other wrongful conduct of Shipper. The total liability of Broker with respect to any claims or damages arising from or related to the Services or otherwise under these TOS will be for the amount charged by Broker with respect to the services specifically giving rise to such claims or damages.

b.     Shipper shall indemnify, defend, pay, reimburse and save Broker, its employees, and agents harmless from and against any and all liability, damage, loss, costs, fines, penalties, or expenses (including attorney’s fees) of any kind whatsoever, including but not limited to personal injury, property damage, cargo damage, or any combination thereof, suffered or claimed to have been suffered by any person or persons, arising out of Shipper’s performance under these TOS to the extent such claim is directly and proximately caused by: (i) the negligence or intentional misconduct of Shipper; (ii) Shipper’s or its employees’ or agents’ violation of applicable laws or regulations; (iii) Broker’s compliance with instructions provided by Shipper; or (iv) Shipper’s or its employees’ or agents’ breach of these TOS, except to the extent such liability, claims or loss are the result of the negligence or other wrongful conduct of Broker.

c.     In the event that such claims, liabilities, losses, damages, fines, penalties, payments, costs and expenses (including without limitation, reasonable attorney fees) are caused by the joint and concurrent negligence or other fault of the Parties, or the Parties and a third party, the indemnity obligations for such claims, liabilities, losses, damages, fines, penalties, payments, costs, and expenses shall be borne by each Party in proportion to its degree of negligence or other fault.

d.     Broker shall also indemnify, defend, and save Shipper harmless from and against any and all claims of payment made by Servicing Carriers as long as Shipper has made timely payment in accordance with the provisions of these TOS to Broker of the full amount owing to Broker for the services underlying the Servicing Carrier’s claim.

e.     Any indemnified Party shall promptly tender the defense of any claim to the indemnifying Party. The indemnified Party shall provide reasonable cooperation to the indemnifying Party in the defense of any claim tendered to the indemnifying Party, at the indemnifying Party’s request; such cooperation could include, but not be limited to, cooperation with title transfer for the Vehicle involved in the claim and providing evidence and other relevant documentation in the indemnified Party’s possession.

6.     ‍INDEPENDENT CONTRACTOR. Broker represents and warrants that it is an independent contractor and that its employees are under Broker’s exclusive management and control, and that Shipper neither exercises nor retains any control over Broker, its operations or employees in any manner whatsoever.‍

7.     CONTRACT CARRIERS. Broker shall make reasonable efforts to place Shipper’s Vehicle(s) with responsible Servicing Carriers authorized to perform the Services required by Shipper for the purposes of transporting the Vehicle(s) with reasonable dispatch under the direction of Shipper. In no event will Broker tender any Vehicle(s) of Shipper to a Servicing Carrier holding an “unsatisfactory” safety rating. Broker also agrees to utilize only Servicing Carriers that possess all insurance coverages required by applicable law. However, the Parties understand and agree that Broker makes no express or implied warranties or guarantees concerning delivery time or the locating of a Servicing Carrier to provide the Services requested by Shipper. Moreover, Shipper acknowledges and agrees that such Servicing Carriers might limit Shipper’s recovery for claims for cargo loss, damage or delay.‍

8.     BROKER INSURANCE. Broker shall comply with all insurance and bonding requirements imposed upon it by law, including its obligation to maintain a surety bond.

9.     CARGO LOSS, DAMAGE, DELAY OR SHORTAGE. The Parties understand and agree that Broker operates only as a transportation broker, does not hold itself out to operate as a motor carrier or freight forwarder, does not take possession, custody or control of any cargo or property, and as such has no liability for cargo, loss, damage, delay or shortage claims, except as otherwise expressly stated in this Section and Section 10. Shipper understands and agrees that the underlying Servicing Carrier may have a limitation of liability in place that limits Shipper’s recovery with respect to such claims and that Broker is under no obligation (1) to select only a Servicing Carrier that has no such limitation of liability or (2) to perform research to determine whether the Servicing Carrier has such a limitation of liability, or the amount thereof, before selecting the Servicing Carrier to provide motor carrier service to satisfy the Transport Request. Broker has no obligation to maintain cargo insurance and if Shipper desires such insurance it must purchase it from a private insurance company. In no event shall Broker be responsible for any special, consequential, incidental, indirect, punitive or exemplary damages, with respect to any matter arising from or related to these TOS or Services provided hereunder regardless of whether Broker had notice of the possibility of such damages. In addition, in no event shall Broker be liable for any diminution of cargo value.

a.     In the event of a cargo loss, damage, delay or shortage claim, Broker may, using commercially reasonable efforts, facilitate claims filing and processing on behalf of Shipper with the Servicing Carrier if Shipper submits to Broker, within seven (7) calendar days 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,  cause and amount of the claim for cargo damage.  Broker may, in its sole discretion and without liability to Shipper, discontinue pursuit of claims with the Servicing Carrier if such claim is not resolved within sixty (60) days of receipt of Shipper’s notice by Broker. Broker shall have no liability for cargo loss, damage, or shortage except to the extent such claims are caused directly and proximately by Broker’s negligent acts or omissions, in which event, Broker’s liability shall be limited to the amount owed to Broker by Shipper with respect to the Services provided by Broker that relate to the cargo at issue. Broker shall have no liability for delay in delivery of cargo except to the extent that Broker’s negligence or intentional misconduct directly and proximately causes an unreasonable delay, which delay results in physical damage to the cargo. In no event will Broker or the Servicing Carrier be responsible for any chargebacks or other penalties or assessments imposed by the consignor or consignee with respect to late deliveries. Shipper acknowledges and agrees that its sole recourse against Broker with respect to cargo loss, damage, delay or shortage shall be pursuant to this provision.  Shipper further acknowledges and agrees that if Shipper elects to perform repairs on damaged cargo before a claim is resolved and without first seeking authorization for such repairs from Broker, and such repair work impairs Broker’s ability to facilitate resolution of the claim as determined by Broker in its sole but reasonable discretion, then Broker is under no obligation to continue facilitation of such claim and, to the extent Broker was liable for such damage, Broker’s liability shall be limited to the amount of repairs Broker determines would have been reasonable given the nature and amount of such damage. With respect to the standard for Broker negligence with respect to Servicing Carrier’s insurance, Broker shall be deemed to be negligent only if the Servicing Carrier fails to maintain insurance as required by law.‍

10.  MISSING OR LOST VEHICLE REPORTS.  In the event a Vehicle is lost or goes missing during performance of the Services, Broker may be required to report such loss to the appropriate authorities and/or file a police report, including in order to assist with the recovery of such Vehicle or file a claim with Broker’s insurance for the loss of such Vehicle.  If the appropriate authorities and/or the police do not allow Broker to file a report as needed, Shipper agrees to file any reports related to the loss of the Vehicle as reasonably requested by Broker.  If Shipper does not file any such reports as requested by Broker, then Broker shall not be responsible for the loss of the Vehicle if Broker is unable to file a claim for such loss with Broker’s insurance company.  In addition, if a lost Vehicle is located, Shipper agrees to cooperate with Broker as requested to facilitate its retrieval, including but not limited to by providing title evidence if needed.    

11.  SHIPPING DOCUMENTS. Unless otherwise agreed in writing, all shipments tendered shall be accepted on a bill of lading which shall function as a receipt of the Vehicle(s) only; the terms and conditions of such bill of lading will not apply to transportation provided pursuant to these TOS. Upon request of Shipper, Broker shall instruct Servicing Carriers to obtain a delivery receipt from the consignee, showing the cargo delivered, condition of the shipment and the date and time of such delivery. Shipper is solely responsible for properly identifying and describing the Vehicle(s) to be transported on any shipping documentation, as well as for complying with all laws, rules and regulations regarding tender of Vehicle(s) for transportation including, but not limited to, those applicable to shipping papers required with respect to shipments of hazardous materials. Shipper acknowledges and agrees that Broker is under no obligation to arrange for any special handling or other services unless expressly requested in writing by Shipper, receipt of which is acknowledged and agreed to in writing by Broker.‍ The Parties agree that if Broker is designated as the Carrier on the bill of lading that designation shall be null and void and have no effect.

12.  LEGAL RESTRAINT OR FORCE MAJEURE. In the event performance by one Party is affected by any cause beyond the reasonable control of such Party, including without limitation, fire, labor strife, riot, war, weather conditions, acts of the public enemy, acts of God, acts of terrorism, local or national disruptions to transportation networks or operations, fuel shortages, governmental regulations, or governmental request or requisition for national defense, and provided that the applicable cause is not attributable to the acts or omissions of such Party, and such Party is taking reasonable measures to remove or mitigate the effects of the applicable cause, then the performance of all obligations required herein shall, with the exception of payment of invoices, be suspended during the continuance of such interruption, and such Party shall promptly notify the other Party of such interruption. Such period of suspension shall not in any way invalidate these TOS, but on resumption of operations, any affected performance by such Party shall be resumed. No liability shall be incurred by either Party for damages resulting from such suspensions.‍

13.  COMMUNICATIONS. Communications between the Parties, including, but not limited to, invoicing, payment, and proofs of delivery, will be electronic in format, but Broker may, in its sole discretion, accept alternative communication methods proposed by Shipper. The Parties hereby waive any objection to the authenticity of such electronic communications as long as such communications comply with the Electronic Signatures in Global and National Commerce Act, the Uniform Electronic Transactions Act, or related legislation as applicable.‍

14.  BROKER’S RECORDS. To the extent allowable under applicable law, Shipper hereby waives its right to obtain copies of Broker’s records as provided for under 49 C.F.R. Part 371. Notwithstanding the foregoing, to the extent that Shipper obtains records set forth in 49 C.F.R. § 371.3 by any means whatsoever, Shipper agrees to refrain from utilizing such records in negotiating for the provision of services with any third party, including Servicing Carriers. Shipper further agrees and understands that all such records comprise Broker’s confidential information and trade-secrets.‍

15.  ASSIGNMENT/MODIFICATION/BENEFIT OF TOS. These TOS may not be assigned or transferred by Shipper in whole or in part., unless approved in writing by Broker. Subject to the foregoing, these TOS shall be binding upon and inure to the benefit of the Parties hereto.‍

16.  SEVERABILITY. In the event that the operation of any portion of these TOS results in a violation of any law, the Parties agree that such portion shall be severable and that the remaining provisions of these TOS shall continue in full force and effect.‍

17.  DISPUTE RESOLUTION AND LIMITATION. These TOS shall be deemed to have been drawn in accordance with the statutes and laws of the state of New York and in the event of any disagreement or dispute, the laws of New York shall apply and suit must be brought in the jurisdiction of Buffalo, New York as each Party specifically submits to the exclusive personal jurisdiction of such courts for disputes involving these TOS.‍

18.  FOR SHIPPERS IN PUERTO RICO.  For Shippers in Puerto Rico purchasing vehicles on the ACV Auctions Platform from sellers within the continental United States, these terms apply and shall govern in the event of a conflict with the TOS.

a.     Shipper acknowledges each vehicle purchased on the ACV Auctions Platform will be transported (i) from the seller to an ACV-designated lot (“Lot”), (ii) from the Lot to the Jacksonville Port Authority in Jacksonville, Florida (“JAX  Port”), and (iii) from the JAX Port to the port in Puerto Rico (“PR Port”). Shipper shall arrange for transportation services from the JAX Port to the PR Port and for all transportation within Puerto Rico.

b.     Shipper must use Broker for Services from the seller to the Lot and from the Lot to the JAX Port; ACV and/or ACV Transport may require Buyer to purchase the Services in more than one transaction on the ACV Auctions Platform and/or the ACV Transportation Platform. Shipper’s Vehicle(s) may be consolidated with other vehicles by Shipping Carrier(s) during transportation from the seller to the Lot and from the Lot to the JAX Port.   Any obligations Broker has with respect to transport terminate once the Vehicle is delivered to the JAX Port by the Shipping Carrier.

c.     Vehicles will not be transported from the Lot to the JAX Port until title has been received from the seller and Shipper has arranged transport from the JAX Port to the PR Port.  ACV Auctions Inc. will notify Shipper once title has been received.

d.     Shipper understands the duration of transport from seller to the PR Port is dependent on numerous factors beyond the control of ACV Auctions Inc. and/or Broker, and delivery of the Vehicle(s) to Shipper by a certain date cannot be guaranteed.

19.  COMPLETE AGREEMENT. These TOS constitute the entire agreement of the Parties with reference to the subject matters herein, and may be changed from time to time by Broker in its sole discretion without notice to Shipper.  Revised TOS will be posted at https://www.acvauctions.com/legal/acv-transportation-llc, and Shipper is encouraged to review the TOS periodically.  Shipper’s acceptance of Services following the posting of new TOS constitutes acceptance of such TOS.