AGREEMENT
1. TERM. The term of this Agreement shall be one (1) year (the “Initial Term”), commencing on the date first mentioned above. This Agreement shall automatically renew itself for successive one year periods. Notwithstanding the foregoing, either Party may terminate this Agreement on thirty (30) days prior written notice, at any time, to the other Party, with or without cause, or as otherwise provided in this Agreement.
2. CARRIER WARRANTIES AND REPRESENTATIONS TO BROKER AND ITS CUSTOMERS
a. Carrier agrees to maintain a U.S. DOT safety rating or evaluation of “fit”, “satisfactory”, or whatever is the highest rating described by the U.S. DOT, FMCSA, CSA, or equivalent governmental agency authority or evaluation method for the duration of this Agreement. Any change in Carrier’s safety rating requires immediate written notification to BROKER.
b. Carrier will provide all necessary and fully qualified drivers, ensure that each driver is suitably trained for operation of vehicles and other equipment, procure all licenses, permits, authorizations and other governmental approvals necessary for the ownership and use of such vehicles, furnish at its sole expense all supplies, fuel, oil, tires, parts, service, maintenance and repair in connection with the use and operation of their vehicles and equipment and that may be required to keep the vehicles and equipment in good repair and mechanical condition, and bear all costs of providing the transportation service. Carrier agrees that it shall, at all times, and at its own expense, provide, and maintain Driver(s) with enough available hours of service to pick up and complete delivery of the tendered load(s) within time frame(s) requested by BROKER and/or its Customer(s), without violating the FMCSA hours of service regulations contained at 49 C.F.R § 395
c. CARRIER shall place a certified, registered Electronic Logging Device (each an “ELD”) in each vehicle it utilizes to transport freight hereunder in compliance with the requirements of the ELD regulations set forth in Section 32301 (b) of the Commercial Motor Vehicle Safety Enhancement Act, enacted as part of MAP-21 (Pub L. 112-141, 126 Stat. 405, 786-788, July 6, 2012), which are registered with the FMCSA on or before Carrier is mandated by law to do so.
d. All vehicles and equipment used for transportation services shall be clean, odor free, dry, leak proof and free of contamination and infestation. No vehicle that transports goods for BROKER under this Agreement will ever have been used to transport refuse, garbage, trash, or solid or liquid waste of any kind whatsoever, whether hazardous or non hazardous regardless of whether they meet the definition in 40 C.F.R. § 261.1 et seq Carrier will also ensure that, in connection with goods that are specified by BROKER or its CUSTOMER(S) as requiring temperature, humidity, or other climate control, all vehicles provided for transportation of such goods will be suitable for the purpose intended, and shall be operated in compliance with reefer units properly and regularly maintained.
e. CARRIER agrees that only drivers qualified under Part 391 of the Federal Motor Carrier Safety Regulations (FMCSRS) will transport freight under this Agreement. CARRIER further agrees that it will maintain adequate internal procedures to evaluate its drivers through Pre-Employment Screenings, Driver Information Resource, the U.S. DOT Safety Management System, CSA and any other official resources related to driver fitness, and ensure that drivers are otherwise qualified under the FMCSR’s throughout the duration of this Agreement.
f. CARRIER does not have an “unsatisfactory”, “conditional”, “marginal” or “unfit” safety rating issued by the FMCSA. If Carrier receives an “Unsatisfactory” or “Unfit” safety rating, or a rating is changed from “Satisfactory” to “Conditional” or from “Continue to Operate” to “Marginal”, carrier shall immediately notify BROKER and shall not transport any shipment hereunder without BROKER’s prior written consent. The provisions of this paragraph are intended to include safety rating designations which may replace those above, which are subject to change by the FMCSA at any time.
g. CARRIER warrants and represents that it is in full compliance, and shall continuously maintain full and strict compliance with all statutes, rules, and regulations governing its operations pursuant to this Agreement, including but not limited to adherence to provisions of the Interstate Commerce Act and related laws, rules, and regulations to the extent they govern Carrier’s operations. If shipments under this Agreement are tendered in Canada, or for delivery to Canada, CARRIER warrants that it will not accept such shipments unless Carrier in full compliance with the laws of Canada.
h. CARRIER shall maintain compliance during the term of this Agreement, with all applicable federal, state and local laws relating to the provision of its services including, but not limited to: training of drivers, qualification of drivers, transportation of Hazardous Materials, (including the licensing and training of Hazmat qualified drivers), as defined in 49 C.F.R § 172.800, § 173, and § 397 et seq. To the extent that any shipments hereunder constitute Hazardous Materials; security regulations; owner/operator lease regulations; loading and securement of freight regulations; implementation and maintenance of driver safety regulations including, but not limited to, hiring, controlled substances, and hours of service regulations; sanitation, temperature, and contamination requirements for transporting food, perishable, and other products, qualification and licensing and training of drivers; implementation and maintenance of equipment safety regulations; maintenance control of the means and method of transportation including, but not limited to, performance of its drivers. As well as all applicable insurance, financial, responsibility and surety laws and regulations including but not limited to workers' compensation; the Federal Motor Carrier Safety Regulations (FMCSRs), and any applicable state trucking regulations.
i. At all times while this Agreement is in effect, Carrier shall comply with all rules, regulations, and conditions pertaining to the transportation of food products, produce, drugs, and other perishable items, including, without limitation:
(i) The Food, Drug, and Cosmetic Act (“FDCA”) (21 U.S.C Section 301, et seq., as amended, supplemented or superseded from time to time), (ii) the Food Safety Modernization Act of 2011 (“FSMA”) (21 USC Section Section 2201 et sez., as amended supplemented or superseded from time to time), (iii) the Perishable Agricultural Commodities Act (“PACA”) (7 U.S.C Section 499(a), et seq., as amended, supplemented, or superseded from time to time), (iv) any and all state or local statutes or ordinances applicable to the transportation of food products, produce, drugs, and other perishable items, and (v) any and all Federal and State administrative rules and regulations pertaining to the transportation of food products, produce, drugs, and other perishable items, including without limitation, Federal Regulations under or related to the FDCA, FSMA, PACA, and/or state or local statutes or ordinances.
j. Without limiting the foregoing, Carrier fully and strictly comply with the FSMA Sanitary Transportation of Human and Animal Food Rule (“STF Rule”) (21 CFA Parts 1 and 11, as amended, supplemented or superseded from time to time). In complying with the STF Rule, Carrier shall be obligated to: (i) ensure that any and all equipment used complies with the specifications and/or temperature control requirements of any food shipment; (ii) take measures to isolate, segregate and use packaging to prevent contamination of food products; (iii) ensure that any and all food items requiring temperature control are transported in compliance with such temperature requirements, which will include, without limitation, checking Bills Of Lading, rate confirmation sheets, and/or shipping instructions to determine any temperature requirements, discussing and verifying whether a temperature requirement exists with the Customer and/or shipper/loader/dispatcher at origin, precooling equipment if necessary, setting any reefer or temperature control equipment to the proper temperature and setting, venting if needed, maintaining and serving any and all temperature control equipment, and taking other appropriate measures to ensure temperature requirements are met; (iv) notify BROKER of any failure of temperature control equipment or another condition that would cause food items to become unsafe or adulterated (as defined in the STF Rule); (v) implement written procedures regarding temperature control, equipment, and sanitation; (vi) adequately train any and all drivers, employees and other transportation personnel regarding the handling and transporting of food products, produce, and other perishable items; (vii) provide BROKER, upon request, with any and all original or electronic records related to the transportation of food products, produce, and other perishable items which may include, without limitation, (A) training records and certificates demonstrating that Carrier and its employees/drivers/personnel have been trained on compliance, (B) any and all documents related to temperature control and compliance, storage records, Bills of lading, and other records; (viiI) provide BROKER, upon request, with any and all original or electronic records demonstrating that any trucks, trailers and/or equipment used by Carrier to transport cargo have been adequately washed, cleaned and dried in a sanitary manner; and (ix) implement ongoing measures to ensure Carrier is fully and strictly complying with the STF Rule. BROKER WILL NOT BE HELD LIABLE FOR CARRIER’S FAILURE TO COMPLY WITH THE SECTION 8.4 OR OTHERWISE FAIL TO ADHERE TO SHIPPER’S INSTRUCTIONS OR THE FSMA AND/OR STF RULE, and Carrier shall indemnify and hold harmless BROKER for all losses, damages, and expenses (including reasonable attorney’s fees) BROKER may sustain or incur, including but not limited to claims for lost profits or plant shutdown fees, arising out of Carrier’s noncompliance.
k. CARRIER moving perishables. CARRIER warrants that the CARRIER will inspect or hire a service representative to inspect a vehicle’s refrigeration or heating unit at least once each month. CARRIER warrants that they shall maintain a record of each inspection of refrigeration or heating unit and retain the records of the inspection for at least one year. Copies of these records must be provided upon request to the CARRIER’s insurance company and BROKER. CARRIER warrants that they will maintain adequate fuel levels for the refrigeration or heating unit and assume full liability for claims and expenses incurred by the BROKER or the shipper for failure to do so. The CARRIER must provide their cargo insurance carrier with all records that relate to a loss and permit copies and abstracts to made from them upon request. The following rules shall apply: (a) Destination market value for lost or damaged cargo, no special or consequential damages unless by special agreement; (b) Claims will be filed with CARRIER by shipper; (c) claims notification procedures will be followed in accordance with procedures described in 49 C.F.R 379.1-11.
l. CARRIER agrees not to re-broker (CO-BROKERING), assign or interline shipments hereunder tendered to CARRIER by BROKER without the advance written authorization of the BROKER. If CARRIER breaches this provision, BROKER shall have the right of paying the money it owes CARRIER directly to the delivering CARRIER in lieu of payment to CARRIER. Violation of this policy shall be grounds for immediate termination of this Agreement. If BROKER becomes aware of such co-brokering activity by CARRIER prior to payment of any compensation otherwise due CARRIER, BROKER shall withhold payment to CARRIER and shall instead pay appropriate compensation to the CARRIER who actually transported the shipment. BROKER will deem any acceptance of a shipment by Carrier as a common or contract CARRIER and subsequently subcontracting of the shipment to any third party as an assignment of the right to be compensated for that shipment to the third party. Upon BROKER’s payment to delivering CARRIER, CARRIER shall not be released from any liability to BROKER under this Agreement. In addition to the indemnity obligations and limits in Par. 12, CARRIER will be liable for consequential damages for violation of this Paragraph (including but not limited to reasonable attorney’s fees).
m. CARRIER shall not perform services that would require CARRIER or any of its contractors, employees, or others to exceed or violate any applicable laws, rules or regulations. CARRIER agrees that all shipments will be transported and delivered with reasonable dispatch, or as otherwise agreed in writing. CARRIER, as an independent contractor, has sole and exclusive direction and control over the manner in which CARRIER and its employees, contractors, or others perform Services. Such individuals shall be considered employees or representatives of CARRIER only and shall be subject to employment, discharge, discipline and control solely and exclusively by CARRIER, which shall be fully
responsible for their acts.
n. CARRIER’s Handling Of Freight:
i. CARRIER will transport all shipments tendered pursuant to this Agreement to the specified consignee at the specified destination at the time specified, or, if there is no time specified, then within a reasonable time. BROKER and CARRIER both agree and recognize that time is of the essence of this Agreement and that due to varying geographical origins and destinations together with the need for expeditious transportation, both Parties will commence performance under this Agreement immediately following the oral tender of a shipment to CARRIER by BROKER. It is understood that all shipment handling requirements are those of BROKER’s CUSTOMER(S) and that CARRIER will comply with all such requirements.
ii. Missed delivery appointments may result in the imposition of fees and penalties by BROKER’s CUSTOMER(S) shippers, or consignees of shipments for which CARRIER shall be liable.
iii. CARRIER is responsible at the time of loading for probing any product designated as requiring temperature controls in transit and writing the temperature on the Bill of Lading or shipping receipt. The temperature of the product is a material condition of this Agreement. If the product temperature is more than two (2) degrees different from the required temperature stated on the tender documents, then the CARRIER shall refuse the shipment and immediately contact BROKER.
3. CARRIER Obligations
a. CARRIER warrants that at all times during this Agreement it will act as a “motor CARRIER” as that term is defined under 49 U.S.C § 13102 and any applicable federal or state regulations, statutes, decisional law, or administrative law. CARRIER further warrants that at all times during this Agreement it will remain licensed and authorized by the Department of Transportation to provide interstate transportation services, and warrants that it will maintain insurance or otherwise demonstrate financial responsibility in accordance with all applicable federal and state regulations.
b. CARRIER will notify BROKER immediately if its federal Operating Authority is revoked, suspended or rendered inactive for any reason; and/or if it is sold, of if there is a change in control of ownership, and/or any insurance required hereunder is threatened to be or is terminated, cancelled (whether by an insurer or surety provider by CARRIER, or by any person or entity), suspended, or revoked for any reason.
c. CARRIER shall provide upon reasonable demand, to BROKER copies of its DOT Operating Authority Policy of Insurance, including all endorsements, Certificate of Insurance surety or financial responsibility.
d. CARRIER authorizes BROKER to invoice CARRIER’s freight charges to shipper, consignee, or third parties responsible for payment. CARRIER hereby assigns to BROKER any and all rights held by CARRIER to bill any party to the Bill of Lading contract, and shall bill only BROKER for the Services herein. CARRIER agrees that BROKER’s CUSTOMER(S) are intended to be third party beneficiaries of this Agreement. CARRIER will not communicate, directly or indirectly, in any manner, with BROKER’s CUSTOMER(S) consignors, consignees or any party other than BROKER concerning the collection of any charges relating to transportation services accrued in connection with on as a consequence of this Agreement. CARRIER shall have no lien, and hereby expressly waives its right to any lien of any kind on any cargo, freight or other property of BROKER or any of BROKER’s CUSTOMER(S). It is agreed that BROKER is acting as an independent contractor and not as the agent of any of its CUSTOMER(s).
e. CARRIER automatically assigns to BROKER all its rights to collect freight charges from Shipper or any responsible third party on receipt of payment from BROKER.
f. CARRIER has investigated, monitors, and agrees to conduct business hereunder based on the creditworthiness of BROKER and is granting BROKER credit terms accordingly.
g. CARRIER shall invoice BROKER in BROKER’s name and deliver all such invoices to BROKER promptly following of freight. CARRIER shall submit to BROKER all shipping documents within fifteen days after delivery of each shipment transported pursuant to this Agreement.
h. CARRIER represents and warrants that on behalf of shipper, consignee, and BROKER interests, to the extent that any shipments subject to this Agreement are transported within the State of California on refrigerated equipment, CARRIER warrants that it shall only utilize equipment which is in full compliance with the California Air Resources Board (CARB) TRU ACTM in-use regulations. CARRIER shall be liable to BROKER for any penalties, or any other liability, imposed on, or assumed by BROKER due to penalties imposed on BROKER’s CUSTOMER because of CARRIER’s use of non-compliant equipment.
i. CARRIER shall provide proof of delivery to BROKER within twenty-four (24) hours of delivery or request.
i. Invoices which are received by BROKER more than one hundred twenty (120) days after Services are performed will not be accepted for payment. Inquiries or claims for non-payment received by BROKER more than one hundred twenty (120) days after such invoices are due and payable will not be investigated, researched or paid.
4. BROKER Obligations
a. BROKER shall maintain a surety bond/trust fund as agreed to in the amount of $75,000 and on file with the Federal Motor CARRIER Safety Administration (FMCSA) in the form and amount not less than that required by that agency’s regulations.
b. BROKER agrees to solicit and obtain freight transportation business for CARRIER to the mutual benefit of CARRIER and BROKER. BROKER shall inform CARRIER of i) place of origin and destination of all shipments; and ii) if applicable, any special shipping instructions or special requirements, of which BROKER has been timely notified.
c. BROKER agrees to conduct all billing services to shippers. With respect to all shipments tendered to CARRIER
pursuant to this Agreement, compensation shall be paid to CARRIER solely and exclusively by BROKER. CARRIER shall invoice BROKER for its (CARRIER’s) Charges as mutually agreed in writing, by fax, or by electronic means, contained in BROKER’s Rate Confirmation Sheet(s). Additional rates for truckload or LTL shipments, or modifications or amendments of the above rates, or additional rates, amy be established to meet changing market conditions, shipper requirements, BROKER requirements, and/or specific shipping schedules as mutually agreed upon, and shall be confirmed in writing (or by fax) by both parties hereinafter considered Load Confirmation. Any such additional, modified, or amended rates, changes in rates shall automatically be incorporated herein by reference as part of Exhibit A, Amendment 1. Et seq. Such Load Confirmation Sheets are supplements to this Agreement, not separate contracts or agreements unless CARRIER objects to the terms and rates of an individual Load Confirmation within twenty-four (24) hours after receipt and prior to the pickup of the shipment(s) of freight set forth thereon, CARRIER shall be presumed to have agreed that the terms are fully and correctly stated. All such Confirmations shall become incorporated as addenda to this Agreement, and BROKER and CARRIER agree to retain all such addenda for three (3) years. If BROKER and CARRIER fail to agree to a negotiated rate as described above, the rate paid by BROKER to CARRIER for the shipment(s) pursuant to this Agreement shall be the amounts set forth in Appendix A, attached hereto and made a part hereof.
d. CARRIER, from time to time, may request that BROKER make early payment of freight charges in exchange for a discount of the agreed rates, which separate agreement (“Quick Pay”) may be attached to and become part of this Agreement. If the CARRIER agrees to Quick Pay, the discounted payment shall become the negotiated rate.
e. The Parties agree that BROKER is the sole party responsible for payment of CARRIER’s charges. BROKER agrees to pay CARRIER’s invoice within 28 days of receipt of the required paperwork (as required by the shipper), provided CARRIER is not in default under the terms of this Agreement. CARRIER shall not seek payment from Shipper, if Shipper can prove payment to BROKER. BROKER shall pay CARRIER for services rendered in an amount equal to the rates and charges agreed to as set forth and confirmed in writing. Additionally, any rates, which may be verbally agreed upon, shall be confirmed in writing where CARRIER has billed the agreed rate and BROKER has paid it. Rates or changes, including but shall not be limited to stop-offs, detention, loading or unloading, fuel surcharges, or other accessorial charges, released rates or values, or tariff rules or circulars, shall only be valid when specifically agreed to in a signed writing by the parties.
i. Payment and other disputes are subject to the terms of Par. 4.D, which provides in part that prevailing parties are entitled to recovery costs, expense and reasonable attorney’s fees.
f. As a condition precedent to payment, CARRIER must submit proof of delivery with its invoices, and the invoices must reflect that CARRIER delivered the freight to its final destination.
g. BROKER agrees to arrange for the transportation of a shipper’s freight with CARRIER pursuant to the terms of this Agreement, and to comply with all federal, state, and local laws and regulations to the brokerage services
covered by this Agreement.
h. BROKER will notify CARRIER of any specific shipping instructions related to: i) sanitary conditions or equipment specifications needed to ensure food items are transported in a sanitary condition, and ii) temperature requirements and equipment needed for the transportation of food items.
i. The Parties agree that BROKER’s responsibilities under this Agreement are limited to arranging for the transportation of a shipper’s freight with CARRIER, and not actually performing the transportation services, possessing the freight, or controlling the means or methods of the transportation.
5. SCOPE OF WORK AND AGREEMENT APPLICABILITY. BROKER hereby agrees to cause freight to be tendered to CARRIER, and CARRIER agrees to transport such freight, in one or more shipments, and CARRIER hereby agrees to pick up, transport, deliver, and provide all such services as BROKER shall request on all freight tendered by BROKER to the extent of its ability to do so (the “Services”). CARRIER specifically warrants and agrees that all freight tendered to it by BROKER pursuant to this Agreement shall only be transported by CARRIER on, in or with equipment owned by CARRIER or leased to CARRIER under a lease having a duration of more than thirty (30) days and operating under CARRIER’s operating authorities. Except to the extent that CARRIER use the services of “owner/operators” in the course of conducting its regular operations, CARRIER shall not, in any manner, sub-contract, BROKER or tender to any third party for transportation any freight tendered to CARRIER by BROKER for transportation pursuant to this agreement. Violation of this article shall be considered a material breach of its agreement. In addition to other remedies conferred by this Agreement, any violation of this article shall act as a bar to CARRIER’s right to collect any payment for any shipment handled in a manner which violates this article. Transportation services pursuant to this Agreement shall be performed as described herein and in any appendix hereto between domestic U.S. and/or Canadian origin and destination points. This Agreement shall not include shipments to or from Mexico as otherwise set forth in a separate Appendix hereto.
6. ASSIGNMENT/MODIFICATION AND DELEGATION. his Agreement shall inure to the benefit of and be binding upon the successors and assigns of both Parties, provided, however, that no assignment of rights and no delegation of duties under this Agreement shall be effective without the prior written consent of the other Party. Notwithstanding, the above, either Party may, at any time, transfer this Agreement together with its rights and duties to any parent corporation or wholly owned subsidiary of its parent corporation, without permission of the other Party. Further, neither CARRIER or BROKER may amend or modify the terms of this Agreement without the prior written or electronic consent of the other party. Any amendments or modifications to this Agreement not agreed to by both CARRIER and BROKER shall be null and void.
7. WAIVER OF PROVISIONS
a. Failure of either Party to enforce a breach of waiver of any provision or term of this Agreement shall not be deemed to constitute a waiver of any subsequent failure or breach, and shall not affect or limit the right of either Party to thereafter enforce such a term or provision.
b. This Agreement is for specified services pursuant to 49 U.S.C. § 14101(b). . To the extent that terms and conditions herein are inconsistent with Part (b), Subtitle IV, of Title 49 U.S.C (ICC Termination Act of 1995), the Parties expressly waive any or all rights and remedies they may have under the ACT.
8. SHIPPER-BROKER RELATIONSHIP. The Parties agree that BROKER at all times will be acting as an independent contractor, and not an employee, agent, or principal of a shipper.
9. BROKER-CARRIER RELATIONSHIP. CARRIER agrees and acknowledges that as the motor CARRIER transporting a shipper’s freight pursuant to this Agreement, it is an independent contractor, and not an employee, agent or principal of BROKER. CARRIER further agrees and acknowledges that its employees and agents, including the driver or drivers transporting freight, are not the employees or agents of BROKER, and that BROKER does not control or have the right to control the CARRIER, its employees, agents, drivers, or any person or entity with the CARRIER. BROKER further makes no representations as to CARRIERs safety status/representation or any other aspect of CARRIER’s fitness beyond that set forth in Section 2 above. The Parties will notify each other immediately if their Federal Operating Authority is revoked, suspended or rendered inactive for any reason; and/or if either Party is sold, or if there is a change in control of ownership of either Party, and and/or any of their insurance required hereunder is threatened to be or is terminated, cancelled, suspended, or revoked for any reason.
a. CARRIER and BROKER acknowledge and agree that this contract does not bind respective Parties to exclusive services to each other. Either party may enter into similar agreements with other CARRIERs, BROKERs, or freight forwarders.
10. INSURANCE. CARRIER shall furnish BROKER with Certificate(s) of Insurance, or insurance policies thirty (30) days advance written notice of cancellation or termination, and unless otherwise agreed. CARRIER shall at all times during the term of this Agreement have and maintain in full force and effect, Public Liability, Property Damage, Cargo, and Worker’s Compensation Insurance with reliable insurance companies acceptable to BROKER, and in the following minimum amounts:
a. Comprehensive Automobile Liability Insurance. Comprehensive Automobile Liability Insurance shall be with a combined single limit of $1,000,000.00.
b. Cargo Insurance. A non-schedule vehicle Cargo Insurance policy with per shipment minimum of $100,000.00 unless higher limits are specified, together with:
i. Employee Infidelity. CARRIER’s cargo insurance policies shall not exclude coverage for infidelity, fraud, dishonesty or criminal acts of CARRIER’s employees, officers, or directors.
c. Workers Compensation and Employment Liability Insurance, Workers’ Compensation and Employment Liability Insurance shall afford:
i. Protection under all applicable Workers’ Compensation Laws, at limits of the state in which the work is to be performed or containing an all-state endorsement, and embracing a waiver of subrogation; and
d. Comprehensive General Liability Insurance. Comprehensive General Liability Insurance shall be in amounts not less than:
i. Bodily Injury $1,000,000.00 per occurrence; $2,000,000.00 in the aggregate.
ii. Property damage $1,000,000.00 per occurrence. $2,000,000.00 in the aggregate.
e. Additional Insured. BROKER shall be named as an “Additional Insured” on CARRIER’s Comprehensive Automobile Liability Insurance and Cargo Insurance policies, and said policies shall provide that;
i. BROKER shall not be obligated to pay premiums for any such insurance;
ii. Such insurance shall be primary with respect to BROKER’s insurance;
iii. Such insurance shall be applicable separately to each insured and shall cover claims, suits, actions or proceedings by each insured against any other insured.
f. Certificates of Insurance. In lieu of being named as an additional insured, BROKER may agree and CARRIER shall provide certificates of insurance evidencing the insurance coverage required under this Agreement. The certificates of insurance shall contain a clause providing that the insurer will not cancel or change of the insurance without first providing BROKER thirty (30) days prior written notice.
g. Insurance Policy Copies. Upon reasonable request of BROKER, CARRIER may deliver to BROKER full and complete copies of its insurance policies required under this Agreement.
h. Self-Insurance. If CARRIER is self-insured, it shall provide evidence of such, including proof of acceptance of selfinsurance status by the FMCSA or other governing agency.
i. No Representation as to Adequacy. It is expressly understood that BROKER does not represent that the types of minimum limits of the insurance set forth herein are adequate to protect the BROKER’s interests, and do not otherwise constitute limits of liability. Deductible amounts under the foregoing policies shall be paid by Carrier. Carrier may not have exclusions within any of the above insurance policies for unattended vehicles and unattached vehicles, theft, abandonment, or breakdown or malfunctioning of cooling or heating equipment. In the event the FMCSA shall require greater limits or different types of insurance than those specified above during the term of this Agreement, such increased limits or different types shall supersede the aforementioned limits and types and Carrier shall obtain and maintain insurance with such increased limits. Carrier further agrees to provide BROKER with a certificate of such insurance containing a clause requiring that BROKER be provided thirty (30) days advance written notice of the cancellation of any such insurance.
11. INDEMNIFICATION. CARRIER shall indemnify and hold harmless BROKER, BROKER’s Affiliates and all customers and
consignees for all losses, damages, injuries and death, or expenses (including reasonable attorneys’ fees), incurred or
sustained by BROKER, BROKER’s Affiliates, and all customers or consignees, arising out of:
(i) the failure of CARRIER,
and its drivers, employees, agents, contractors, successors and assigns to comply with the provisions of this Agreement.
CARRIER further agrees to indemnify and hold harmless BROKER, BROKER’s Affiliates, and any Customers or consignees
from any and all claims, suits, losses, fines, and/or expenses (including reasonable attorney’s fees) arising out of, based
upon, or incurred because of property damage or injury to any person or persons, including death resulting therefrom which
results from or arises out of:
(ii) the performances or non-performance of CARRIER’s obligations under this Agreement by
CARRIER and its drivers, employees, agents, contractors, successors and assigns; (iii) the failure by CARRIER and its
drivers, employees, agents, contractors, successors, and assigns to comply with the provisions of this Agreement; or (iv)
through the willful conduct or negligence of CARRIER and its drivers, employees, agents, contractors, successors and
assigns. Without limiting the foregoing, CARRIER’s indemnification obligations shall include the following:
a. Any and all liability claims, demands or expenses, including attorney’s fees or other professional fees, directly or
indirectly arising out of or related to the Services pursuant to this Agreement, initiated or advanced by any person;
b. Any liability, claims, demands or expenses (including attorney’s and other professional fees) for damage to property
of BROKER, its Customer(s) or third parties, or personal injuries (including death) to BROKER or BROKER’s
CUSTOMER(S)’ officers, directors, agents or employees or any other person, arising from or in conjunction with
the CARRIER’s performance of Services to this Agreement;
c. Any and all claims made against BROKER, its agents, officers, directors or employees or BROKER’s
CUSTOMER(S), agents or employees by or on behalf of CARRIER’s employees, for salary or other compensation
or payments resulting or claimed to have resulted, in whole or in part, from CARRIER Services;
d. Any and all penalties or fines of any character which may be sought to be enforced against BROKER or its
Customer(s) by reason of an alleged violation by CARRIER, of any federal, state, provincial, or local law, rule or
regulation; and
e. Any and all claims, demands, and suits by other CARRIERs or intermediaries against BROKER or its Customer(s)
seeking payment for transportation charges on shipments tendered to CARRIER.
f. The provisions of this paragraph shall survive cancellation, termination, or expiration of this Agreement.
12. NO BROKER LIABILITY. CARRIER agrees and acknowledges that BROKER will not be liable to a shipper for any act or omission of the CARRIER or any of its “employees” which transport a shipper’s freight, as the term “employee” is defined under 49 C.F.R. § 390.5 or for any of CARRIER’s Agents, Principals, Assigns or Subcontractors. CARRIER thus agrees and acknowledges to indemnify and hold harmless BROKER for any cargo loss or damage, or for delay in the delivery of a shipper’s freight, or for any actual or consequential damages resulting therefrom.
13. NON-SOLICITATION OF SHIPPER’S AND BROKER’S CUSTOMERS. CARRIER agrees that it will not directly or indirectly conduct business with any shipper whose freight was transported pursuant to this Agreement or a shipper or payor of freight who first was introduced by BROKER to CARRIER for a period of one (1) year beginning with the last day such service was performed for that shipper. This restrictive covenant relates only to the type traffic and in traffic lanes or territories served by CARRIER on behalf of BROKER and relatesonly to Cusomer(s) of BROKER with whom BROKER and whom CARRIER had substantial business contact during the 12 months immediately preceding termination of this Agreement.
a. CARRIER agrees to treat all BROKER’s CUSTOMER(S) as BROKER’s accounts the term of this Agreement. If this Agreement is terminated for any reason whatsoever, CARRIER agrees not to solicit freight or provide transportation services to any of BROKER’s CUSTOMER(S) for a period of 12 months after ther termination date of this Agreement. In the event of breach of this provision, BROKER shall be entitled, for a period of 6 months following delivery of the last shipment transported by CARRIER under this Agreement, to a commission of fifteen percent (15%) fo the gross transportation revenue (as evidenced by freight bills) received by CARRIER for the transportation of said freight as liquidated damages. Additionally, BROKER may seek injunctive relief and in the event it is successful, CARRIER shall be liable for all costs and expenses incurred by BROKER, including, but not
limited to, reasonable attorney’s fees.
14. BILLS OF LADING. CARRIER shall issue a sign a standard, uniform straight Bill of Lading, or other receipt acceptable to BROKER and BROKER’s CUSTOMER(S) in compliance with 49 U.S.C § 80101 et. seg, 49 C.F.R. § 373.101 (and any amendment thereto), for the property it receives for transportation under this agreement. . Unless otherwise agreed in writing, CARRIER shall become fully responsible/liable for the freight when it takes/receives possession thereof, and the trailer(s) is loaded, regardless of whether a bill of lading has been issued, and/or signed, and/or delivered to CARRIER, and which responsibility/liability shall continue until delivery of the shipment to the consignee and the consignee signs the bill of lading or delivery receipt. . Any terms of the bill of lading (including but not limited to payment terms) inconsistent with bill of lading acknowledging receipt of the cargo, by CARRIER, shall not affect the liability of CARRIER. It is agreed that a shipper’s and/or consignor’s identification of BROKER’s name on a Bill of Lading shall be for the shipper’s/consignor’s convenience only, and such notation shall not affect or defeat BROKER’s status as a Property BROKER or CARRIER’s status as a Motor CARRIER. In the event that the terms and conditions of any Bill of Lading executed by CARRIER in connection with a shipment transported pursuant to this agreement shall conflict with the terms and conditions of this Agreement, the terms and conditions of this Agreement shall govern and take precedence.
15. COMPENSATION.
a. Mileage and Accessorial Charges. For each freight movement or shipment, the Parties may specify the mileage to apply for the purposes of computing transportation charges if a mileage rate schedule applies. Otherwise, the mileage according to the then current version of PC Miler will apply. There shall be no charge for waiting time or demurrage other than as provided for in this paragraph. CARRIER shall allow two (2) hours of free time for loading and after that free time has expired, BROKER shall pay for waiting at the rate of $20.00 per hour, not to exceed a total of $175.00. In order to be eligible to receive payment for waiting time, CARRIER must first furnish to BROKER written proof of the time of arrival of the subject vehicle for loading/unloading and the time of completion of the loading/unloading on the Bill of Lading for the subject shipment, or other appropriate and acceptable (to BROKER) shipping document. Time spent waiting prior to the time of opening for business of the consignor or consignee, as the case may be, shall be included in the computation of either free time or waiting time. In order to receive payment for waiting time, CARRIER must first give BROKER telephone notice that chargeable waiting time is about to commence or accrue so that Broker has an opportunity to intervene with the consignor/consignee in order to avert or minimize such charges for waiting time. CARRIER shall not be entitled to any payment for waiting time which has caused due to an Act of God, the public enemy, the authority of law, strikes or act of the CARRIER, or becaus CARRIER’s driver was run out of hours. Appointments for loading and unloading are to be made at no additional charge. Waiting time incurred on account of CARRIER’s failure to keep its scheduled appointment for pick-up or delivery shall not be charged to BROKER or BROKER’s CUSTOMER(S). Produce and other fresh commodities
are exempt and will be dealt with on a case by case scenario. Loads shall be held for delivery and/or re-delivery at no additional charge. Upon the request of the consignor and/or consignee of any shipment transported by CARRIER pursuant to this Agreement for CARRIER to load and/or unload any such shipment from CARRIER’s vehicle, CARRIER shall provide such loading and/or unloading service, at its own, sole, expense, unless otherwise provided for in a rate confirmation sheet from BROKER for a specific shipment.
b. Fuel Surcharge. Unless a separate and distinct fuel surcharge is specifically agreed to by BROKER, in writing, the quoted rate of CARRIER embraces any and all fuel surcharges or adjustments.
16. LOSS, DAMAGE, OR DELAY LIABILITY
a. COMMON CARRIER LIABILITY. BROKER and BROKER’s CUSTOMER(S) specifically reserve all rights and
remedies conferred by 49 U.S.C § 14706, and this Agreement is subject to and governed by said statute. CARRIER agrees, except as otherwise specifically provided in this Agreement, that in the transportation of all
goods hereunder, it assumes the same liability as that of a common CARRIER for full actual destination market
value loss, damage, destruction, delay or theft of any goods transported by CARRIER while such goods are in the care, custody, and control of CARRIER, as provided by 49 U.S.C § 14706 (“Carmack Amendment”) and 49 C.F.R Part 370 (claim regulations) and any amendments and/or any other applicable state regulatory agency, including, without limitation, the value of profits associated with any goods being shipped. This liability shall apply whether the goods are covered by the Carmack Amendment or whether such goods are considered an “exempt commodity” under the Carmack Amendment. . CARRIER expressly agrees to be treated as Motor CARRIER for all liability purposes regardless of the type of commodity. . CARRIER shall promptly handle and resolve all claims which are submitted either by BROKER or directly by any Customer or consignee for loss or damage to any cargo transported by CARRIER. . Notwithstanding the terms of 49 C.F.R § 370.9, CARRIER has thirty (30) days from the date any claim is received to register said claim, and CARRIER has an additional ninety (90) days to either pay, decline or make settlement offer in writing on all cargo loss or damage claims. . Failure of CARRIER to pay, decline or offer settlement within the period listed above shall be deemed an admission by CARRIER of full liability for the amount claimed and a material breach of this Agreement. . CARRIER further agrees to indemnify and hold harmless BROKER for all losses, damages and expenses (including reasonable attorney’s fees) BROKER may sustain or incur, including but not limited to claims for lost profits or plant shutdown fees, arising out of the loss, damage, destruction, delay, or theft of any goods brokered/tendered to CARRIER by BROKER under this Agreement. The provisions contained in Section 10 of this Agreement relating to the amount and type of insurance which CARRIER is required to provide, shall in no way limit the obligations of CARRIER set forth in this paragraph.
b. Claims for loss, damage, injury, or delay shall be filed within nine (9) months of a reasonable time for delivery if a complete loss or from the date of loss of or nine (9) months from the date of delivery. . Replacement Shipments. CARRIER acknowledges that BROKER may utilize other CARRIERs to facilitate the movement of delayed shipments, or to ship replacement goods. If CARRIERs fails to arrange to make timely delivery of any shipment, CARRIER shall be liable to BROKER and its Customer(s) for all reasonable and necessary costs, charges, fees, and expenses resulting from such delay.
c. SET-OFF RIGHTS. Notwithstanding anything to the contrary contained elsewhere in this Agreement, BROKER shall have the right to set-off against the amounts payable to CARRIER under this Agreement or against any other amounts owed by BROKER to CARRIER, any and all damages, claims, losses, liabilities and expenses, including without limitation, reasonable attorney’s fees, and other expenses, incurred by BROKER as a result of: (i) any breach of any representation or warranty of CARRIER under this Agreement, (ii) any breach of this Agreement by CARRIER, (iii) any indemnification obligations of CARRIER under this Agreement, (iv) the negligence or intentional acts of CARRIER and its drivers, employees, agents, contractors, successors and assigns (v) the failure by CARRIER to deliver any freight transported hereunder in accordance with the delivery schedule provided by BROKER or listed in any associated rate confirmation sheet, (vi) delays in shipment or losses to goods caused by CARRIER’s services hereunder, and (vi) freight claims or other claims which relate to freight transported hereunder. BROKER’s right of set-off shall be in addition to, and not in substitution of, any other right BROKER shall have under this Agreement, or at law or in equity.
d. SPECIAL DAMAGES: CARRIER’s indemnification liability (par 11) for freight loss and damage claims under Section 16 shall include indirect, special, incidental and consequential damages, including, without limitation loss of profits or prospective profits, together with legal fees reasonably incurred by BROKER in the prosecution of such claims, all of which shall constitute special damages, the risk of which is expressly assumed by CARRIER. If BROKER is successful in recovering a claim against CARRIER in a court of law or arbitration proceeding, BROKER shall be entitled to recover all of its expenses incurred in collecting its claim, including reasonable attorney’s fees, costs and interests at the legal rate from the date of delivery or scheduled delivery of the shipment.
e. RETURN OF DAMAGED SHIPMENT. CARRIER shall return all damaged shipments at its expsne to the point of origin or, with BROKER’s direction, to other points as instructed by BROKER.
f. DELAYED SHIPMENTS. Due to the nature of our business, time is of the essence. BROKER reserves the right to impose reasonable and industry accepted penalties against the CARRIER when pick-up and/or delivery schedules and appointments are not adhered to. Force Majeure (Act of God) and documented mechanical difficulties will be the only exceptions.
g. TIME LIMITS; SUITS FOR LOSS OR DAMAGE. The time limit within which BROKER must institute suit against CARRIER to recover on a claim shall be two years and a day from the date BROKER receives a written disallowance from CARRIER.
h. CONCEALED DAMAGE CLAIMS. Claims based on a concealed loss or damage reported to CARRIER within ten (10) business days of the date of delivery shall be treated by CARRIER as though an exception notation had been made on the delivery receipt at the time of delivery.
i. DAMAGED OR REFUSED SHIPMENT. CARRIER shall not dispose of damaged or rejected product without the prior written consent of BROKER or its Customer(s). BROKER or its Customer(s) may determine within their sole discretion whether the goods may be salvaged, and if salvageable, the value of such salvage. In the event that the customer of the subject freight has required BROKER to waive rights of salvage or resale, CARRIER hereby expressly waives any and all rights of salvage or resale of the subject freight to the same extent as waived by BROKER.
j. SHIPPER LOAD AND COUNT. CARRIER shall not be liable for loss or damage on truckload shipments if trailer is loaded sealed by Shipper and CARRIER has no opportunity to inspect or count contents of trailer, the trailer is delivered with original seal(s) intact, and there is no evidence indicating that the contents of the trailer were compromised while the trailer was in the CARRIER’s possession. However, in such event, CARRIER’s personnel shall note on the Bill of Lading that they were not allowed or afforded an opportunity to view and/or examine the goods shipped. Failure of CARRIER to make such a notation shall create a rebuttable presumption that the goods were received by CARRIER in the correct quantity and in good condition.
k. LIMITATION OF LIABILITY. Except as otherwise provided, BROKER shall be liable to CARRIER for any indirect, special, incidental, or consequential damages, including without limitation loss of profits or prospective profits (collectively, “disclaimed damages”), whether arising out of or alleged to have arisen out of breach of this agreement.
l. SURVIVAL OF PROVISIONS. The provisions of this Paragraph shall survive cancellation, termination, or expiration of this Agreement.
17. MISCELLANEOUS.
a. FACTORING. CARRIER shall provide BROKER written notice of any assignment, factoring, or other transfer of its rights to receive payments arising under this Contract at least thirty (30) days prior to such assignment, factoring, or other transfer taking legal effect as to BROKER’s payment obligation hereunder (BROKER shall not be obligated to honor any factoring, assignment or any other transfer of CARRIER’s right to receiver any payments hereunder unless such notice is timely received). Such written notice shall include the name and address of factoring company, assignee/transferee, date, date assignment is to begin, and terms of the assignment, and shall be considered delivered upon receipt of such written notice by BROKER. BROKER shall have the right to ask for and CARRIER shall be obligated to furnish any further documentation BROKER requires in order to satisfy itself as to the authenticity of, and payment requirements of the factoring arrangements(s). BROKER’s payment obligations hereunder shall not be subject to more than one factoring/assignment agreement at any one time. No multiple assignments, factoring or other such transfers by the CARRIER shall be binding on BROKER. CARRIER shall indemnify BROKER against and hold BROKER harmless from any and all lawsuits, claims, actions, damages (including reasonable attorney’s fees, obligation, liabilities, and liens) arising or imposed on BROKER in connection with the factoring/assignment or transfer of any account or right arising thereunder. If CARRIER wants to terminate factoring, a release from the CARRIER and the factoring company in a form satisfactory to BROKER’s counsel must be received by BROKER specifying the terms and date of release. CARRIER also releases and waives any right, claim or action against BROKER for any amount due and owing under this Agreement where CARRIER has not complied with the notice requirements of this section.
b. COUNTRY OF ORIGIN: The limitations of liability for cargo loss and damage as well as other liabilities, arising out of the transportation of shipments, which originate outside the United States of America, may be subject to the laws of the country of origination.
c. CONFIDENTIALITY: In addition to confidential information protected by law, statutory or otherwise, the Parties agree that all of their financial information and that of their Customer(s), including but not limited to freight and brokerage rates, amounts received for brokerage services, amounts of freight charges collected, amounts of freight charges paid, freight volume requirements, as well as personal Customer Information, Customer shipping or other logistics requirements shared or learned between the Parties and their Customers, shall be treated as Confidential, and shall not be disclosed or used for any reason without prior written consent. In the event of violation of this Confidentiality paragraph, the Parties and agree the remedy at law, including monetary damages, may be inadequate and that the Parties shall be entitled, in addition to any other remedy they may have, to an injunction restraining the violating Party from further violation of this Agreement in which case the prevailing Party shall be liable for all costs and expenses incurred, including but not limited to reasonable attorney’s fees.
d. NOTICES. All notices required or permitted under this Agreement shall be in writing, shall be signed by or on behalf of the Party giving notice, and shall be sent to the other Party at its main office listed above via certified U.S. Mail, overnight courier with delivery receipt, facsimile with machine printed proof of delivery.
e. ENTIRE AGREEMENT. This Agreement, together with any Appendices are a part hereof, contains the entire understanding of the Parties and supersedes all verbal or written prior agreements, arrangements, and understandings of the Parties relating to the subject matter stated herein. The Parties further intend that this Agreement constitutes the complete and exclusive statement of tis terms, and that no extrinsic evidence as a Bill of Lading may introduced to reform this Agreement in any judicial or arbitration proceeding involving this Agreement.
f. MODIFICATION OF AGREEMENT: This Agreement and any attachments hereto shall not be modified, except by mutual written agreement.
g. INVALIDITY OF PROVISIONS: If a court of competent jurisdiction declares any provision of this Agreement invalid, such decision shall not affect the validity of any remaining provisions, and all remaining provisions of this Agreement shall remain in full force and effect.
h. COMPLIANCE WITH EXECUTIVE ORDER 13496 of January 30, 2009. CARRIER agrees to comply with all provisions and related rules, regulations, and orders of the Secretary of Labor as set forth by Executive ORder 13496 of January 30, 2009 during the term of this Agreement.
i. GOVERNING LAW. Unless preempted by or controlled by Federal Transportation Laws and Regulations this Agreement shall be governed by and construed in accordance with the laws of the State of Ohio. Carrier and BROKER further agree that the exclusive venue for any lawsuit necessary to resolve a dispute shall be in state or federal court in Cincinnati, Hamilton County, Ohio. Carrier agrees to pay all reasonable expenses, attorney fees and costs (including court costs) that BROKER incurs in any such litigation.
j. FORCE MAJEURE. The performance of either or both Parties hereto shall be excused and abated if such is prevented or substantially impeded by any Act of God, the public enemy, the authority of law, natural disaster or other like event, for the duration of such event. The Party who is unable to perform because of such event shall give the other notice the same within twenty-four (24) hours of the occurrence of such event or its performance hereunder will not be excused.
k. EQUAL OPPORTUNITY. In the performance of Service pursuant to this Agreement, the Parties hereto shall comply with the equal opportunity provisions as set forth in Federal Acquisition Regulation (FAR) § 52.222-26
l. COUNTERPARTS. . This Agreement may be executed in any number of counterparts each of which shall be
deemed to be a duplicate of original hereof. m. Except for Exhibit A and its amendments, and unless otherwise agreed in writing, this Agreement contains the entire understanding of the Parties and supersedes all verbal or written prior agreements, arrangements, and understandings of the Parties relating to the subject matter stated herein. The Parties further intend that this Agreement constitutes the complete and exclusive statement of its terms, and that no extrinsic evidence may be introduced to reform this Agreement in any judicial or arbitration proceeding involving this Agreement.