Article I. Transportation Services
1.1 Engagement of Services. BROKER, from time to time in its sole discretion, may arrange for the
transportation of shipments
by CARRIER for the Customers who shall be third party beneficiaries of CARRIER’S obligations under
this Agreement. This Agreement is
intended to be non-exclusive to the parties.
1.2 No Liens. CARRIER shall not withhold delivery of any freight due to any dispute with BROKER
regarding freight charges
or otherwise. CARRIER shall have no lien, and hereby waives and releases its right to any statutory and
common law liens which it might
otherwise have upon any cargo transported or stored by CARRIER or in the possession of CARRIER
pursuant to this Agreement.
1.3. Applicability of 49 U.S. Code Section 14101(b). BROKER and CARRIER agree that this
Agreement is entered into for the
purpose of providing and receiving specified services under specified rates and conditions and hereby
expressly waive, and BROKER shall require
Customer to waive, pursuant to 49 U.S. Code Section 14101(b), any and all rights and remedies under
Part B, Subtitle IV, Title 49, U.S. Code,
and similar or equivalent rights and remedies under applicable Canadian federal, provincial or territorial
legislation or regulations, only to the
extent they conflict with this Agreement.
1.4 Carrier Obligations. CARRIER represents and covenants to BROKER and the Customers as
(a) CARRIER represents and warrants that, at its expense, it has and shall maintain during the term of this
subsequent renewal periods all licenses, certificates, registrations, stickers and permits required by any
applicable governmental agency for such
transportation services, including but not limited to, all necessary permits, licenses and approvals for
drivers and for the vehicles and equipment
used by CARRIER. CARRIER represents and warrants that at the time of entering into this Agreement,
CARRIER has no rating or a “Satisfactory”
safety rating as determined by the Federal Motor Carrier Safety Administration (FMCSA). A change in
CARRIER’S FMCSA Safety Rating or
other applicable authority’s comparable safety rating to “Conditional” or “Unsatisfactory” or in the event
any portion of CARRIER’S operating
authority required for CARRIER to perform its obligations under this Agreement is revoked, canceled,
suspended or discontinued by operation of law or otherwise may cause Broker to immediately terminate this Agreement.
(b) CARRIER shall, at its sole cost and expense, provide competent, licensed personnel to operate
CARRIER’S truck tractors,
trailers, motor vehicles and other equipment and to perform the Services for any/all cargo from the point
of origin to the point of delivery. While
at/on Customer’s facilities, CARRIER’S employees and agents will strictly adhere to all of Customer’s
posted rules. CARRIER shall comply with
all applicable United States, Canada and Mexico federal, state, provincial and local/municipal laws, bylaws, ordinances, rules and regulations,
including but not limited to the California Air Resources Board’s (CARB) regulations and Food and Drug
Administration regulations. CARRIER
shall ensure that CARRIER’S trailers offered for loading of cargo to be transported under this Agreement,
interior and exterior (conditions
permitting), shall be clean, odor-free, dry, leak-proof and free of contamination and infestation.
CARRIER’S trailers offered for loading of cargo
to be transported under this Agreement shall never have been used to transport refuse, garbage, trash or
(c) CARRIER shall protect and preserve all cargo and shall safely transport all cargo with prompt and
reasonable dispatch in
accordance with the scheduled pickup and delivery requirements of BROKER and the Customers; to the
extent reasonably possible, inspect the
loaded shipment to determine that it has been satisfactorily loaded and ready for safe transport, and
deliver such loads at delivery points in the
same condition as received.
(d) CARRIER shall be responsible for requesting and obtaining instructions concerning the
handling, securing, and
protection of the shipment (temperature, moisture, food grade, etc) including complying with any
instructions on the bill of lading.
CARRIER shall be solely liable for any damages resulting from CARRIER’S failure to request, obtain
and/or comply with such
instructions. In the event there is an inconsistency between the information contained in any
shipping document and any information
provided by broker, CARRIER agrees to contact broker to resolve the inconsistency. CARRIER shall
be solely responsible for any
consequences, including claims for loss, damage or delay if CARRIER fails to resolve the
1.5 Subcontractor and Interline Carriers.
(a) CARRIER will not re-broker, co-broker, subcontract, assign, interline, or transfer the transportation of
to any other persons or entity conducting business under a different operating authority. CARRIER
specifically warrants and agrees that all
freight tendered to carrier pursuant to this agreement shall only be transported by CARRIER on, in or
with equipment operating under carrier’s
(b) In the event any portion of the Services contemplated by this Agreement is interlined or
subcontracted, with or without
BROKER’S written consent, by CARRIER to another party, CARRIER shall remain responsible to
BROKER for full and proper performance of the obligations under this Agreement as if all of such Services were performed directly by CARRIER
(including, but not limited to compliance with
all applicable United States, Canada and Mexico federal, state, provincial and local/municipal laws, bylaws, ordinances, rules and regulations, DOT
and other safety ratings and registrations, insurance required by this Agreement, adherence to all
Customer rules and requirements, and
indemnification required by this Agreement).
(c) CARRIER shall be liable for payment of any compensation due CARRIER’S interlined or
subcontracted carrier(s) for any
Services performed pursuant to this Agreement by such interlined or subcontracted carrier(s). CARRIER
agrees to defend, indemnify and hold
BROKER and the Customers harmless from any and all compensation claims of CARRIER’S interlined
or subcontracted carrier(s).
(d) CARRIER represents and warrants that no freight transported pursuant to this Agreement shall
become, or shall be deemed to
be, adulterated or misbranded within the meaning of the Food and Safety Modernization Act, Federal
Food, Drug and Cosmetic Act, the Federal
Meat Inspection Act, or the Federal Poultry Products Inspection Act, as amended and as may be amended
in the future, or any other federal, state
or local law, rule or regulation of similar kind or content, by reason of being or having been transported in
or with motor vehicle equipment
provided by CARRIER to transport Shipper’s freight, or any of CARRIER’S activities in furtherance of
such transport. CARRIER further warrants
that all motor vehicle equipment provided by CARRIER to transport Shipper’s freight complies with the
requirements of the Sanitary Food
Transportation Act or any other applicable food transportation laws, rules or regulations or that none of
the equipment has been or will be used
for the transportation of any waste of any kind, or garbage, contaminants or any other commodity that
might adulterate or contaminate food
ingredients or products that Shipper may tender to CARRIER. Shipper’s freight is susceptible to odors
and CARRIER shall not commingle
Shipper’s freight with odorous or volatile materials. CARRIER further represents and warrants that it will
comply with all of Shipper’s Sanitation
and Operation Policies and with all instructions and specifications which may be included on any Bills of
Lading, including but not limited to,
any refrigeration or other temperature control requirements.
1.6 Shipping Documentation.
Unless otherwise specified by BROKER, the Bill of Lading shall be completed as follows:
(a) CARRIER shall be shown as the carrier, the shipper shall be shown as the consignor and the receiver
shall be shown as the
(b) For each pickup, CARRIER will sign the Bill of Lading, which will serve as prima facie evidence of
receipt of the shipment
by CARRIER in good order and condition, except as otherwise noted on the face of the Bill of Lading.
(c) Upon delivering a shipment, CARRIER will obtain a signature and a noted delivery date from the
consignee on the Bill of
Lading. Any discrepancies including, but not limited to, shortage, damage and/or missing or broken seal
shall be noted by CARRIER or consignee
on the Bill of Lading at time of delivery.
(d) Each Bill of Lading or other shipping document for a shipment originating in Canada shall be deemed
to include the following
statement on the face of the Bill of Lading or document: “A written agreement exists which alters the
terms and conditions of this document.”
(e) The parties agree that to the extent they are inconsistent with this Agreement the terms and conditions
and the limitations of
liability set forth in the Bill of Lading shall not apply to carriage under this Agreement.
(f) The reference, notation or identification of BROKER as the motor carrier on any bill of lading or other
shall be for the shipper's, consignor’s or consignee's convenience only and such reference, notation or
identification shall not alter Broker's status
as a property broker or CARRIER'S status as both a motor carrier as well as the motor carrier of record.
Article II. Rates, Charges and Terms
2.1. Rates. Rates shall be contracted rates, which shall be established by BROKER, and CARRIER
through mutually agreed lane
rates or through spot rates. In no event shall either party’s tariff rates apply. Spot rates shall be
communicated by BROKER to CARRIER via an
EDI, a FAX, or by EMAIL. The rates, charges and terms set forth in this Agreement, in any lane rate
schedule or in a spot rate confirmation, are
incorporated into this Agreement by reference and shall apply to the exclusion of any different rates,
charges or terms which may be referred to in
a Bill of Lading, conditions of carriage, delivery receipt, rules circular, or other shipping document.
BROKER will pay CARRIER for its
performance of Services in accordance with such rates, charges and terms. All miles will be calculated by
BROKER by utilizing the shortest miles
option of the current version of PC*MILER © unless agreed otherwise in a rate schedule.
2.2. Payment Procedures. CARRIER will invoice the specific BROKER upon the completion of
Services. Each invoice will
reference BROKER’S order number. BROKER may request that CARRIER provide a correct copy of the
Bill(s) of Lading or Shipping Order,
Delivery Receipt and/or a copy of the Proof of Delivery and other materials reasonably requested by
BROKER. If invoicing by hard-copy,
CARRIER must send invoices and required documents to BROKER at the address specified on the rate
confirmation or load tender:
BROKER shall pay invoices on or before thirty (30) days following the receipt by BROKER of the
invoice and any requested documentation.
On all shipments tendered to CARRIER pursuant to this Agreement, compensation shall be paid to
CARRIER solely and exclusively by BROKER,
in the amount(s) set forth in BROKER'S rate confirmation agreement.
Article III. Insurance
3.1 Insurance Coverage. At all times during the term of this Agreement, CARRIER, and Interlined or
subcontracted carrier, if
permitted, shall maintain, at its sole cost and expense, insurance policies with coverage of not less than
(a) Base requirements:
(1) Cargo liability insurance covering risks for loss of or damage to shipments, in the minimum amount
not less than
$100,000 USD, per shipment. Motor carriers transporting only “Exempt Commodities” must have cargo
liability insurance of
not less than $100,000 USD per shipment.
(2) Automobile liability insurance for bodily injury (including injury resulting in death) and loss of or
property, in the amount not less than $1,000,000 USD combined single limit per occurrence; Please have
Inc.” listed as additional insured; and
(3) Worker’s compensation and employer’s liability insurance as required by applicable law.
All such insurance shall be primary, include a waiver of subrogation, shall provide for a thirty (30) day
notice of cancellation and shall
name Broker as an additional insured.
Article IV. Cargo Claims Liability Standards
4.1. Cargo Claims Liability Standards. CARRIER shall be liable as set forth in 49 U.S. Code §14706
Amendment) and applicable USA federal common law for loss of, damage (injury) to or delay in delivery
of cargo transported pu rsuant to
this Agreement, occurring while in the possession or under the control of CARRIER or its interlined or
subcontracted carrier(s), or resulting
from CARRIER’S performance or failure to perform the Services under this Agreement, irrespective of
whether the value of the cargo has
been declared to CARRIER or its interlined or subcontracted carrier(s), and irrespective of where the loss,
damage or delay occurs (in interstate,
foreign, intrastate, domestic or transborder commerce originating at a point in and/or destined to a point in
the United Stat es or Canada).
4.2 Limits of Liability. Any attempt by CARRIER or CARRIER’S interlined or subcontracted carrier(s),
to further limit their
liability or to amend this Agreement by provisions contained in any shipping document, including without
limitation any Bill of Lading, conditions
of carriage, carta de porte, delivery receipt, rules circular or tariff (whether filed, published or
independently determined), or by any foreign law,
regulation or ordinance, whether purported to be incorporated by reference into this Agreement by an
attachment or otherwise, shall be deemed null
and void. Except as may be set forth in this Agreement or in a Customer Specific Addendum to this
Agreement, under no circumstances whatsoever
shall any cargo claim liability be subject to deductibles, released rates, surcharges or any other like or
similar device designed to reduce CARRIER’S
liability. CARRIER shall be liable for any loss of, damage (injury) to or delay in delivery of cargo
occurring in Mexico in accordance with the Ley
de Caminos, Puentes y Autotransporte Federal (Law of Roads, Bridges, and Federal Motor
Transportation). For Cross-Border shipments, if the
location of where damage occurred cannot be determined, the damage will be presumed to have occurred
in the United States.
4.3. Handling and Processing of Claims. Except as specifically set forth to the contrary herein, all
claims for overage, shortage,
loss, damage or delay and any salvage arising therefrom under this Agreement shall be submitted to
CARRIER by BROKER or Customer and
handled and processed in accordance with 49 C.F.R. Part 370. CARRIER shall acknowledge receipt of all
such claims within thirty (30) days and
shall pay, settle or deny all claims within one hundred twenty (120) days of receipt. For each claim not
resolved within ninety (90) days due to
either non-response by CARRIER or denial of a claim for which evidence supports validity of the claim,
BROKER may give thirty (30) days written notice to CARRIER of BROKER’S intention to automatically deduct the amount of the claim
from any monies otherwise owed by
BROKER to CARRIER (“Auto-Deduct”) at one hundred twenty (120) days of receipt. If Auto-Deduct
occurs and CARRIER subsequently
provides BROKER with sufficient proof supporting denial of the claim, BROKER will release the
applicable amount to CARRIER.
Article V. Indemnification
5.1. Obligations. CARRIER shall indemnify, defend and hold harmless BROKER, and the Customer(s),
and their respective
directors, officers, employees and agents (individually “Indemnitee” and collectively “Indemnitees”),
from and against any and all fines, penalties,
losses, damages, injuries, expenses, costs (including reasonable attorneys’ fees), claims, demands,
liabilities, actions, and judgments (“Liability”)
for bodily injury to or death of any person (including injury to or death of any employee or agent of
CARRIER), or for loss of or damage to property
(other than cargo covered by Article IV of this Agreement) including loss of use thereof, or for damage to
the environment, or for cleanup or
remediation of any leak, spill or contamination, caused in whole or part by the negligent act(s) or
omission(s) of CARRIER or failure to discharge
its duties and responsibilities as specified in this Agreement.
5.2 Negligence Exclusion. This indemnity shall not apply to an Indemnitee to the extent any such
Liability is caused in whole or
part by the negligent act(s) or omission(s) of such Indemnitee.
Article VI. Term and Termination
6.1 Term. This Agreement shall commence upon the Effective Date and will continue until terminated at
any time by BROKER
or CARRIER upon thirty (30) days prior written notice.
6.2 Termination. If either one of the parties files a bankruptcy petition or has a bankruptcy petition filed
against it, or is required
to cease and desist from the performance of this Agreement by reason of any order of any court,
commission or public authority, the other party
may immediately terminate this Agreement upon giving written notice as set forth in Section 7.4.
Article VII. Miscellaneous
7.1. Independent Contractor. This Agreement is not and shall not be construed as an agreement of joint
agency, franchise or employment between the parties or their respective employees.
7.2 Choice of Law; Venue. This Agreement, including its formation, application, performance,
enforcement, the relationship
between the parties, and any claims, demands, causes of action and disputes in any way arising out of or
related to it, shall be governed, construed
and interpreted under the substantive law (and the law of remedies, if applicable) of the State of Illinois,
without regard to the rules of conflict,
except to the extent that mandatory laws, rules and regulations of the United States govern this
Agreement. Any lawsuit arising out of this
Agreement shall be filed in The United States District Court for the Northern District of Illinois.
7.3. Severability. If any term in this Agreement is found by a competent legal authority to be illegal or
unenforceable in any
respect, the validity and enforceability of the remainder of this Agreement will be unaffected.
7.4. Notice. All notices, requests, consents, approvals and other communications (“Notice(s)”) that are
required or may be given under this Agreement shall be in writing and shall be deemed to have been duly given or made when sent
by certified mail, return receipt requested,
all postage and other charges prepaid or overnight courier service addressed to the parties at the addresses
7.5. Waiver. An effective waiver under this Agreement must be specific, in writing, and signed by the
party waiving its right. A
waiver by BROKER or CARRIER of any instance of the other’s noncompliance with any obligation or
responsibility under this Agreement will
not be deemed a waiver of subsequent instances.
7.6. Non-Solicitation. (a) CARRIER acknowledges and agrees that all freight to be transported under this
whether tendered by BROKER or BROKER's customers, and all revenues generated from such services,
arise from BROKER's business and shall
be conclusively considered to have been derived from BROKER's efforts.
(a) Neither CARRIER nor its agents or representatives shall solicit freight from, except pursuant to a
request for pricing published
to the general public, any of BROKER's customers during the earlier of the term of this AGREEMENT
plus one (1) year or the date of termination
of BROKER’s agreement with BROKER’S customer.
(b) Should CARRIER violate this Section, CARRIER shall pay BROKER a monthly commission equal to
ten percent (10%) of
the total freight charges arising from the service provided to BROKER’S Customer. CARRIER shall pay
the commission to BROKER by the
tenth (10th) day of the month following the month in which the service was provided.
(c) The term "BROKER's customers" as used in this Section shall mean any customer for whom
BROKER provides services to
during the term of this AGREEMENT and for whose benefit CARRIER has transported freight pursuant
to this AGREEMENT, whether such
freight was tendered by BROKER or the customer.
(d) The term "BROKER's customers" shall not include any customer for whom CARRIER provided
services to within one (1)
year prior to entering into this agreement. However, in no event shall CARRIER solicit freight through
any lanes which CARRIER services
pursuant to this Agreement, regardless of the Customer.