The Term of this Agreement shall be for one (1) year from the date first above written and shall automatically be renewed for successive one (1) year periods; provided, however, that this Agreement may be terminated by either party at any time, with or without cause, by giving thirty (30) days prior written notice.
II. TRANSPORTATION SERVICES. BROKER agrees to offer to CARRIER, from time to time, on a non-exclusive basis, shipments for CARRIER to transport as a motor contract carrier. If CARRIER accepts any offer by BROKER to transport services in connection with this Agreement, CARRIER shall perform the transportation services in accordance with the terms and conditions of this Agreement.
III. CARRIER REPRESENTATIONS
A. Is a Registered Motor Carrier of Property duly and legally qualified and authorized to transport, as motor carriers, freight of all kinds in interstate, intrastate and foreign commerce (if applicable) from, to and between all points and places in the continental United States and internationally, if applicable, and to provide the transportation services contemplated herein.
B. Shall transport property under its own operating authority and subject to the terms of this Agreement;
C. Makes the representations herein for the purpose of inducing BROKER to enter into this Agreement.
D. Agrees that a shipper's insertion of BROKER's name as the carrier on a bill of lading shall be for the shipper's convenience only and shall not alter BROKER's status as a property broker or 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 Section VI(A), CARRIER will be liable for consequential damages for violation of this provision. In the event any shipment is delayed or CARRIER otherwise fails to complete any trip undertaken by it, and BROKER must arrange for the completion of trip with another carrier, CARRIER shall be responsible for reasonable and necessary costs, charges, fees and expenses related thereto.
F. (i) 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, and current hours of service regulations, federal and state labor regulations and OSHA; 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. For any transport involving a vehicle that requires a Commercial Drivers' License ("CDL"), it is CARRIER'S sole responsibility to ensure that each driver is duly qualified, in possession of a valid CDL, and otherwise meets all of the physical, training and other qualifications for commercial motor vehicle drivers set forth in the Federal Motor Carrier Safety Administration. CARRIER and BROKER agree that safe and legal operation of the CARRIER and its drivers shall completely and without question govern and supersede any service requests, demands, preferences, instructions, or information from BROKER or BROKER's Customer(s) with respect to any shipment at any time.
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. Does not have an "Unsatisfactory" 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 changes to "Unsatisfactory" or "Conditional".
I. Has investigated, monitors, and agrees to conduct business hereunder based on the credit-worthiness of BROKER and is granting BROKER credit terms accordingly.
IV. BROKER RESPONSIBILITIES
A. SHIPMENTS: BROKER shall inform CARRIER of (i) place of origin and destination of all shipments; and (ii) if applicable, any special shipping and handling instructions and special equipment requirements.
B. BILLING: BROKER agrees to conduct all billing services to shippers, consignees, or other parties responsible for payment as specified in Section D. CARRIER shall invoice BROKER for 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, shipper 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 shall be automatically 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 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 writing signed by both Parties.
D. PAYMENT: BROKER agrees to pay CARRIER within thirty (30) days of receipt of CARRIER'S invoice for services rendered hereunder, in accordance with the rates set forth or as otherwise agreed, provided that CARRIER timely submits documents verifying delivery, including any receipt of proof of delivery, bill of lading, signed load confirmation, and any other documents agreed to in the Load Confirmation Sheets / rate confirmation incorporated herein by reference. CARRIER acknowledges and agrees that any such documentation tendered after seventy-two (72) hours is considered untimely and may result in a late fee of up to $100 to be applied against any outstanding amounts owed by BROKER to CARRIER. Any CARRIER that fails to tender such documents after ninety (90) days hereby forfeits and waives any right to payment for any shipment performed pursuant to this Agreement. Upon receipt of payment, CARRIER automatically assigns all of its rights to payment from shippers, consignees, or third parties to BROKER. CARRIER agrees that BROKER is the sole party responsible for the payment of CARRIER's charges and that, under no circumstances, will CARRIER seek payment from the shipper, consignee or third party.
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.
V. CARRIER RESPONSIBILITIES:
A. EQUIPMENT: In the event CARRIER accepts an offer from BROKER to provide transportation services hereunder, CARRIER agrees to provide necessary equipment, maintained in compliance with the requirements of the Federal Motor Carrier Safety Administration, 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. 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 not operate to alter or amend the provisions herein. 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. Prior to signing any bill of lading, it shall be the responsibility of CARRIER'S driver to count the goods, if applicable, described in the bill of lading, and to report any overages and shortages to BROKER; otherwise CARRIER will be liable for any shortages. Unless otherwise agreed in writing, CARRIER shall become fully responsible/liable for the freight when it signs the bill of lading or takes/receives possession of the freight and the trailer(s) is loaded, whichever occurs first, and with respect to the latter, regardless of whether a bill of lading has been issued, and/or signed, and/or delivered to CARRIER. Such responsibility/liability shall continue until delivery of the shipment to the consignee and the consignee signs the bill of lading or delivery receipt. It is the exclusive obligation of CARRIER to secure the load, and in the event any part of a load has been secured by any party other than CARRIER, CARRIER shall inspect, and as necessary, correct the load securement to ensure compliance with all current applicable laws and regulations.
C. LOSS & DAMAGE CLAIMS: CARRIER shall comply with 49 C.F.R. §370.1 et seq. and any amendments and/or any other applicable regulations adopted by the Federal Motor Carrier Safety Administration, U.S. Department of Transportation, or any applicable state regulatory agency, for processing all loss and damage claims and salvage, which arise out of the discharge of CARRIER's duties and responsibilities hereunder; and, except as stated below as to CARRIER's liability to indemnify BROKER and its customers, CARRIER's liability for any cargo damage, loss, or theft from any cause shall be determined under the Carmack Amendment, 49 U.S.C. §14706. CARRIER's liability for cargo loss and damage as well as other liabilities arising out of the transportation of shipments that originate outside of the United States of America may be subject to the laws of origination. CARRIER shall notify BROKER immediately by telephone of any accidents, spills, theft, hijacking, delays or shortages which impair the safe and prompt delivery of the goods in its control.
D. INSURANCE: CARRIER shall procure and maintain, at its sole cost and expense, the following insurance coverages, subject to these 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; and 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. CARRIER shall furnish BROKER with certificate(s) of insurance showing that all policies or coverages described above have been procured, each of which certificates shall name BROKER as Certificate Holder and expressly assure that BROKER shall be provided with thirty (30) days advance written notice from the insurance carrier of any material change, cancellation or termination of any such insurance policies or coverages. Nothing in this Agreement shall be construed to avoid or limit CARRIER's liability due to any exclusion or deductible in any insurance policy.
E. EMPLOYMENT-RELATED EXPENSES: CARRIER assumes full responsibility and liability for payment of the following employment-related items: All applicable federal, state, and local payroll taxes, taxes for unemployment insurance, retirement 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 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.
VI. MISCELLANEOUS
A. INDEMNITY. CARRIER shall defend, indemnify, and hold BROKER, its officers, agents and employees, and its customers, their officers, agents, and employees, harmless from and against all loss, liability, damages, claims, including any claim for personal injury (including death), property damage, or cargo loss, damage or theft, fines, costs or expenses of any kind, including reasonable attorneys' fees, arising out of or in any way related to (i) the performance or breach of this Agreement by CARRIER, its employees or agents, (ii) the negligence or intentional misconduct of CARRIER, its employees or agents, or (iii) CARRIER'S or its agent's or employee's violation of applicable laws and regulations; provided, however, that CARRIER's indemnification obligations hereunder shall not apply to any portion of such claim attributable to the negligence or intentional act of BROKER or its customers.
B. INDEPENDENT CONTRACTOR: It is understood and agreed that the relationship between BROKER and CARRIER is that of independent contractor. 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, employer/employee relationship between the Parties. CARRIER shall provide the sole supervision and shall have exclusive control over the operations of its employees, contractors, subcontractors, agents, as well as all vehicles and equipment used to perform its transportation services hereunder. BROKER has no right to discipline or direct the performance of any driver and/or employees, contractors, subcontractors, or agents of CARRIER. CARRIER represents and agrees that at no time and for no purpose shall it represent to any party that it is anything other than an independent contractor in relationship to BROKER.
C. NON-EXCLUSIVE AGREEMENT: CARRIER and BROKER acknowledge and agree that this contract does not bind the respective Parties to exclusive services with each other. Either party may enter into similar agreements with other carriers, brokers, or freight forwarders.
D. WAIVER OF PROVISIONS: 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. 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.
E. DISPUTES; GOVERNING LAW; VENUE: This Agreement shall be construed in accordance with and is governed by the laws of the State of Wyoming. The parties agree that any action at law or equity arising out of or relating to this Agreement shall be filed only in the state or federal courts located in Wyoming, and the parties hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating such action.
F. DEFAULT. In the event of a material breach by CARRIER of any provisions of this Agreement, BROKER shall have right to withhold and/or set off any payment owing to CARRIER. This right of withholding and/or set off shall be in addition to all other remedies BROKER may have at law or in equity against CARRIER.
G. NO BACK SOLICITATION: Unless otherwise agreed in writing, CARRIER shall not solicit freight shipments (or accept shipments) for a period of twenty-four (24) months(s) following termination of this Agreement for any reason, from any shipper, consignor or consignee or other customer of BROKER, when the availability of such shipments first became known to CARRIER as a result of BROKERS's efforts, or where such shipments of shipper were first tendered to CARRIER by BROKER. In the event of breach of this provision, BROKER shall be entitled, for a period of twelve (12) months following delivery of the last shipment transported by CARRIER under this Agreement, to a commission of fifteen percent (15%) of 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 the costs and expenses incurred by BROKER, including, but not limited to, reasonable attorney's fees.
H. 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 will not be disclosed or used for any reason without prior written consent.
(ii) In the event of the 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.
I. MODIFICATION OF AGREEMENT: This Agreement and any rate schedules attached may not be amended, except by mutual written agreement or the procedures set forth herein.
J. NOTICES: All notices required to be made in writing hereunder shall be sent by certified mail, return receipt requested, or by personal delivery or overnight courier with receipt acknowledged in writing, to the parties at the following addresses: