1) CARRIER REPRESENTS AND WARRANTS THAT IT:
A) Is a Registered Motor Carrier of Property authorized to provide interstate and/or intrastate transportation of property under contracts with shippers and receivers and/or property brokers.
At all times during the performance of this Agreement, CARRIER will represent itself and act as a “motor carrier” as defined by 49 U.S.C. § 13102.
B) Shall transport the property, under its own operating authority and subject to the terms of this Agreement, including transporting each load as a dedicated shipment and not mixing said load with other freight, unloading and reloading, or cross-docking without prior written consent from BROKER;
C) Makes the representations herein for the purpose of inducing BROKER to enter into this Agreement.
D) Agrees that the insertion of BROKER’s name as the carrier on a bill of lading shall be for convenience only and shall not change BROKER’s status as a property broker nor CARRIER’s status as a motor carrier.
E) Will not re-broker, co-broker, subcontract, assign, interline, or transfer the transportation of shipments hereunder to any other persons or entity conducting business under a different operating authority, without prior written consent of BROKER. If CARRIER breaches this provision, BROKER shall have the right of paying the monies it owes CARRIER directly to the delivering carrier, in lieu of payment to CARRIER. 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 obligation in Par 1.H, CARRIER will be liable for consequential damages for violation of this provision.
F) (i) Has knowledge of, and is in, and 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: transportation of Hazardous Materials (including the licensing and training of Haz-Mat 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 alcohol testing the use of the FMCSA Drug and Alcohol Clearinghouse, and electronic logging 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 and control of the means and method of transportation including, but not limited to, performance of its drivers; all applicable insurance laws and regulations including but not limited to workers’ compensation.
(ii) Is solely responsible for any and all management, governing, discipline, direction and control of its employees, owner/operators, and equipment with respect to operating within all applicable federal and state legal and regulatory requirements to ensure the safe operation of CARRIERS vehicles, drivers and facilities. CARRIER agrees to utilize only competent, able and legally licensed personnel who are qualified to drive under applicable FMSCA provisions in providing services under this Agreement
G) 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, or if there is a change in control of ownership, and/or any insurance required hereunder is threatened to be or is terminated, cancelled, suspended, or revoked for any reason.
H) (i) CARRIER shall defend, indemnify and hold BROKER and its customer harmless from any claims, actions or damages, arising out of its performance under this Agreement, including without limitation cargo loss and damage, theft, delay, damage to property, and personal injury or death. Neither Party shall be liable to the other for any claims, actions or damages due to the negligence or intentional
misconduct of the other Party, or the shipper. The obligation to defend shall include all costs of defense as they accrue.
I) Does not have an “Unsatisfactory” or “Conditional” safety rating issued by the Federal Motor Carrier Safety Administration (FMCSA), U.S. Department of Transportation, and will notify BROKER in writing immediately if its safety rating is changed to “Unsatisfactory” or “Conditional”.
J) Authorizes BROKER to invoice freight charges to shipper, consignee, or third parties responsible for payment. And agrees to look solely to BROKER for the payment for services provided hereunder.
K) Has investigated, monitors, and agrees to conduct business hereunder based on the credit- worthiness of BROKER and is granting BROKER credit terms accordingly.
L) On behalf of customer, 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) Transport Refrigerated Unit (TRU) Airborne Toxic Control Measure (ATCM) 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 BROKERS customer because of CARRIER’s use of non-compliant equipment.
2) BROKER RESPONSIBILITIES:
A) SHIPMENTS, BILLING & RATES: BROKER shall inform CARRIER of (i) place of origin and destination of all shipments; and (ii) if applicable, any special shipping and handling instructions, special equipment requirements, or value of shipments in excess of the amount specified in Par. 3C(vi) below, of which BROKER has been timely notified. This is no way limits CARRIER’s liability regarding following instructions from BROKER’s customer.
B) BROKER agrees to conduct all billing services to shippers, consignees, or other party responsible for payment. CARRIER shall invoice BROKER for its (CARRIER’s) charges, as mutually agreed in writing, by fax, or by electronic means, contained in BROKER’s Load Confirmation Sheet(s) / dispatch sheets incorporated herein by this reference. Additional rates for truckload or LTL shipments, or modifications or amendments of the above rates, or additional rates, may be established to meet changing market conditions, customer requirements, BROKER requirements, and/or specific shipping schedules as mutually agreed upon, and shall be confirmed in writing (or by fax or email) by both Parties. Any such additional, modified, or amended rates, changes in rates shall automatically be incorporated herein by this reference.
C) RATES: Additionally, any rates, which may be verbally agreed upon, shall be deemed confirmed in writing where CARRIER has billed the agreed rate and BROKER has paid it. All written confirmations of rates, including confirmations by billing and payment, shall be incorporated herein by this reference. Rates or charges, including but not limited to stop-offs, detention, loading or unloading, fuel surcharges, or other accessorial charges, tariff rates, released rates or values, or tariff rules or circulars, shall only be valid when their terms are specifically agreed to in a writing signed by both Parties.
D) PAYMENT: The Parties agree that BROKER is the sole party responsible for payment of CARRIER’s charges. Failure of BROKER to collect payment from its customer shall not exonerate BROKER of its obligation to pay CARRIER. BROKER agrees to pay CARRIER’s undisputed invoice 30 days upon receipt of the invoice, bill of lading or proof of delivery, provided CARRIER is not in default under the terms of this Agreement.
E) BOND: 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.
F) BROKER will notify CARRIER immediately if its federal Operating Authority is revoked, suspended or rendered inactive for any reason; and/or if it is sold, or if there is a change in control of ownership, and/or any insurance required hereunder is threatened to be or is terminated, cancelled, suspended, or revoked for any reason.
G) BROKER’s responsibility is limited to arranging for, but not actually performing, transportation of a shipper’s freight.
3) CARRIER RESPONSIBILITIES:
A) EQUIPMENT: Subject to its representations and warranties in Paragraph 1 above, CARRIER agrees to provide the necessary equipment and qualified personnel for completion of the transportation services required for BROKER and/or its customers. CARRIER will not supply equipment that has been used to transport hazardous wastes, solid or liquid, regardless of whether they meet the definition in 40 C.F.R. §261.1 et. seq. CARRIER agrees that all shipments will be transported and delivered with reasonable dispatch, or as otherwise agreed in writing.
B) BILLS OF LADING: CARRIER shall sign a bill of lading, produced by shipper or CARRIER in compliance with 49 C.F.R. §373.101 (and any amendments 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 as listed on the Bill of Lading and the consignee signs the bill of lading or delivery receipt. CARRIER’s signature on the Bill of Lading shall be prima facie evidence of the load being accepted as listed and in good condition. Should CARRIER not have the ability to inspect or secure the freight, CARRIER must note the inability to do so on the Bill of Lading and report such to BROKER. All trailers must be sealed, either by CARRIER or Shipper, prior to leaving the Shipper’s premises with the correct seal number listed on the Bill of Lading kept by Shipper. Any failure to ensure that trailer is sealed and seal number is noted shall result in CARRIER’s liability for any loss or damage. Any terms of the bill of lading (including but not limited to payment and credit terms, released rates or released value) inconsistent with the terms of this Agreement shall be ineffective. Should there be a discrepancy between the terms on any shipping document and the terms in this Agreement, CARRIER shall notify BROKER immediately. Failure to issue a bill of lading, or sign a bill of lading acknowledging receipt of the cargo, by CARRIER, shall not affect the liability of CARRIER.
C) CLAIMS:
CARRIER agrees to furnish BROKER immediately, or as soon as is reasonably possible, notice by telephone of any occurrence or transaction which may give rise to a claim against either CARRIER, BROKER or BROKER’s customer(s) under the terms of this Agreement, and in accordance with BROKER’s or BROKER’s customer’s policy for reporting claim incidents. CARRIER hereby acknowledges that CARRIER is solely responsible for the inquiring of, understanding and complying with the reporting requirements of BROKER or BROKER’s customer. CARRIER further agrees to cooperate, as requested by BROKER or its authorized representative, in the investigation, negotiation, settlement, or litigation of any claim or suit, which may be encountered by the BROKER, or its representative under the terms of this Agreement. BROKER shall submit to CARRIER written notice of any cargo claim, including loss or expenses resulting from CARRIER’s delay in providing service, within nine (9) months of the delivery date of the shipment, or, if no delivery occurs, the date of the occurrence resulting in the claim. CARRIER hereby acknowledges and agrees that CARRIER assumes the same liability as a Common Carrier for full actual loss, subject to the provisions of 49 U.S.C. 14706 (Carmack Amendment). CARRIER’s liability for cargo loss or damage shall not be limited to the amount of cargo coverage required herein, nor shall exclusions from coverage contained in CARRIER’s cargo insurance affect CARRIER’s liability for freight loss, damage, or delay. CARRIER hereby acknowledges and agrees that no limitation of liability for loss, damage or delay is applicable for any services provided by CARRIER without the prior written authorization of BROKER. CARRIER hereby acknowledges and agrees that CARRIER’s right to salvage, whether CARRIER receives prior notice or not, for any product transported by CARRIER is based on and limited to the extent the customer of Broker allows salvage and to the extent the customer disallows salvage CARRIER herby waives its claim to salvage. Any claims arising from the services provided by CARRIER shall be handled in the following manner:
a) Claims for loss, damage, injury or delay to cargo may be filed with CARRIER within nine (9) months of the date of delivery of shipment or within twelve (12) months of a reasonable time for delivery (three months beyond agreed transit time), or within nine (9) months of the date CARRIER notifies BROKER that the shipment is lost.
b) CARRIER agrees to pay BROKER for all such claims filed with CARRIER within ninety (90) days of receipt of such claims. For claims not resolved within ninety (90) days of the claim notice date, BROKER will automatically deduct from CARRIER’s settlement(s) the amount of the claim.
The filing, processing and disposition of all cargo claims shall be governed by 49 C.F.R. 370 et seq. to the extent not modified herein. The parties agree that federal Common Carrier laws of liability (i.e. Carmack Amendment liability) shall apply to all shipments made, except that CARRIER shall be liable to BROKER for all economic loss, including consequential and incidental damages, and attorneys’ fees, that are incurred by BROKER or BROKER’s customers for any freight loss, damage or delay claim.
CARRIER understands and does acknowledge that, should BROKER’s customer’s shipment be a sealed shipment, the breaking of such seal by any party other than the intended consignee shall constitute prima facie evidence of damage to the shipment while in CARRIER’s care, custody, and control.
(i)
D) INSURANCE: CARRIER agrees to cause, authorize, instruct, and ensure their insurance company or agent to provide certificate(s) of insurance to Assure Assist Inc listing Assure Assist, 543 Country Club Dr. Unit B338, Simi Valley, CA 93065 as the certificate holder. Certificates of Insurance are to be sent by the insurance company or insurance agent to COI@assureassist.com or to fax number (818) 401-0585 or by any means instructed by Assure Assist providing thirty (30) days advance written notice of cancellation or termination, and unless otherwise agreed, subject to the following minimum limits: General liability $1,000,000.00; motor vehicle (including hired and non-owned vehicles) $1,000,000.00, ($5,000,000 if transporting hazardous materials including environmental damages due to release or discharge of hazardous substances); cargo damage/loss,
$100,000.00; workers’ compensation with limits required by law. Except for the higher coverage limits which may be specified above, the insurance policies shall comply with minimum requirements of the Federal Motor Carrier Safety Administration and any other applicable regulatory state agency. Nothing in this Agreement shall be construed to avoid or limit CARRIER’s liability due to any minimum requirement, exclusion or deductible in any insurance policy. CARRIER’s policy shall be primary to any policy held by BROKER that may address the same loss, damage, or injury claim.
E) ASSIGNMENT OF RIGHTS: CARRIER automatically assigns to BROKER all its rights to collect freight charges from Shipper or any responsible third party on receipt of payment of its freight charges from BROKER.
F) CARRIER assumes full responsibility and liability for payment of the following items: All applicable federal, state, and local payroll taxes, taxes for unemployment insurance, old age pensions, workers’ compensation, social security, with respect to persons engaged in the performance of its transportation services hereunder. BROKER shall not be liable for any of the payroll-related tax obligations specified above and CARRIER shall indemnify, defend, and hold BROKER harmless from any claim or liability imposed or asserted against BROKER for any such obligations.
G)
4) MISCELLANEOUS:
A) INDEPENDENT CONTRACTOR: The relationship of the Parties to each other shall at all times be that of independent contractors. None of the terms of this Agreement, or any act or omission of either Party shall be construed for any purpose to express or imply a joint venture, partnership, principal/agent, fiduciary, or employer/employee relationship between the Parties. Each Party shall provide sole supervisions and shall have exclusive control over the actions and operations of its employees, and agents used to perform its services hereunder. Neither Party has any right to control, discipline or direct the performance of any employees, or agents of the other Party. Neither Party shall represent to any party that it is anything other than an independent contractor in its relationship to the other Party.
B) NON-EXCLUSIVE AGREEMENT: CARRIER and BROKER acknowledge and agree that this contract does not bind the respective Parties to exclusive services to each other. Either party may enter into similar agreements with other carriers, brokers, or freight forwarders.
C) WAIVER OF PROVISIONS:
(i) Failure of either Party to enforce a breach or 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.
(ii) 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.
D) DISPUTES AND GOVERNING LAW: It is agreed by BROKER and CARRIER that Florida law shall govern, without reference to the conflict of laws contained therein, disputes involving any terms of this Agreement or interpretation thereof, whether arising in contract, tort or otherwise. CARRIER hereby waives any jurisdictional rights it might otherwise have. It is also agreed that venue shall be in Bradford County, Florida. Nothing contained in this Agreement shall preclude BROKER from commencing any action in any court having jurisdiction thereof with respect to any matter arising out of, relating to or pertaining to this Agreement. However, at the sole option of BROKER, any controversy, claim or dispute, whether in contract, tort or otherwise, arising out of, relating to or pertaining to this Agreement or the interpretation, breach, enforcement or subject matter thereof, that cannot be settled by mutual agreement of the parties may at the sole option of the BROKER: (i) be submitted to arbitration by one (1) arbitrator (unless the BROKER determines to have multiple arbitrators) in Polk County by the Transportation ADR Council, in accordance with its rules then in effect or conducted by any other recognized arbitration association or entity in accordance with similar rules (“Arbitration”); or (ii) be determined through any alternative dispute resolution (“ADR”) procedure provided for under the laws of the state of Florida, with such ADR procedure to be selected by the CARRIER. Judgment upon any Arbitration award or ADR determination may be entered in any court of any state or county or application may be made to such court through judicial acceptance of the award or determination and on order of enforcement, as the law of the jurisdiction may require or allow. The Arbitration award or ADR determination shall be final and no appeal shall be taken by either party. The costs of any such Arbitration or ADR shall be borne equally by the CARRIER and the BROKER, unless the arbitrator(s) or ADR decision-maker deems such division of costs to be inequitable, in which event the arbitrator(s) or ADR decision-maker may allocate the costs of Arbitration or ADR among the parties thereto as s/he deems just and equitable under the circumstances. THE CARRIER AND BROKER HEREBY WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY OR AGAINST EACH OTHER ON, OR IN RESPECT OF, ANY MATTER ARISING OUT OF, RELATING TO OR PERTAINING TO THIS AGREEMENT, OR THE INTERPRETATION, BREACH, ENFORCEMENT OR SUBJECT MATTER THEREOF. All claims for arbitration under this Agreement must be brought in the party’s individual capacity and not as a plaintiff or class member in any purported class, collective action, or representative proceeding. The arbitrator may not consolidate the claims, and may not otherwise preside over any form of a representative or class proceeding.
E) NO BACK SOLICITATION:
Unless otherwise agreed in writing, CARRIER shall not knowingly solicit freight shipments (or accept shipments) from any shipper, consignor, consignee, or other customer of BROKER. If CARRIER breaches this Agreement and directly or indirectly solicits traffic from customers of BROKER and CARRIER obtains traffic from such customer during the term of this Agreement, or for twelve (12) months thereafter, BROKER shall receive thirty-five percent (35%) commission from the revenue resulting from traffic transported for the Customer. CARRIER shall provide BROKER with all documentation requested by BROKER to verify such transportation revenue.
F) CONFIDENTIALITY:
(i) In addition to Confidential Information protected by law, statutory or otherwise, the Parties agree that all of their financial information and that of their customers, including but not limited to freight and brokerage rates, amounts received for brokerage services, amounts of freight charges collected, 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.
(ii) In the event of violation of this Confidentiality paragraph, the Parties agree that 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.
G) 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.
H) MODIFICATION OF AGREEMENT: The items contained herein may be modified or updated from time to time by BROKER in a web-based Terms and Conditions document, which may be accessed at XXXXXXXXXXXXXXXXXX. Should CARRIER object to any updated item in the Terms and Conditions, CARRIER shall provide written objection to BROKER within ten (10) days of the update. Failure to provide such an objection shall constitute acceptance of any update or modification therein. CARRIER shall be entitled to a printed copy of such Terms and Conditions upon request.
I) NOTICES:
(i) All notices provided or required by this Agreement, shall be made in writing and delivered, return receipt requested, to the addresses shown herein with postage prepaid; or by confirmed (electronically acknowledged on paper) fax, or by email with electronic receipt.
(ii) The Parties shall promptly notify each other of any claim that is asserted against either of them by anyone arising out of the Parties performance of this Agreement.
(iii) Notices sent as required hereunder, to the addresses shown in this Agreement shall be deemed sent to the correct address, unless the Parties are notified in writing of any changes in address.
J) CONTRACT TERM: The term of this Agreement shall be one year from the date hereof and thereafter it shall automatically be renewed for successive one (1) year periods, unless terminated, upon thirty (30) day’s prior written notice, with or without cause, by either Party at any time, including the initial term. In the event of termination of this Agreement for any reason, the Parties shall be obligated to complete performance of any work in progress in accordance with the terms of this Agreement.
K) SEVERANCE: SURVIVAL: In the event any of the terms of this Agreement are determined to be invalid or unenforceable, no other terms shall be affected and the unaffected terms shall remain valid and enforceable as written. The representations, rights and obligations of the parties hereunder shall survive termination of this Agreement for any reason.
L) COUNTERPARTS: This Agreement may be executed in any number of counterparts each of which shall be deemed to be a duplicate original hereof.
M) FAX CONSENT: The Parties to this Agreement are authorized to fax to each other shipment availabilities, equipment and rate promotions, or any advertisements of new services via the following fax numbers (or otherwise modified in writing from time to time):
i) BROKER: 904-236-5807
ii) CARRIER: Provided by CARRIER via the online carrier portal, MyCarrierPackets.
N) FORCE MAJEURE. In the event that either Party is prevented from performing its obligations under this Agreement because of an occurrence beyond its control and arising without its fault or negligence, including without limitation, pandemic, epidemic, war, riots, rebellion, acts of God, acts of lawful authorities, fire, strikes, lockouts or other labor disputes, such failures to perform (except for any payments due hereunder) shall be excused for the duration of such occurrence. Economic hardships, including, but not limited to, recession and depression, shall not constitute Force Majeure events.
O) ENTIRE AGREEMENT: 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.
