Carrier is a Registered Motor Carrier of company authorized to provide transportation of freight under contracts with shippers and receivers and/or brokers of general commodities
Shall transport the freight, under its own business authority and subject to the terms of this Agreement;
Makes the representations herein for the purpose of inducing BROKER to enter into this service Agreement.
Accepts 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 will neither change BROKER’s business status as a freight broker nor CARRIER’s business status as a motor carrier. BROKER is not a motor carrier and assumes no motor carrier responsibility for goods loss and damage in the event that the National Motor Freight Traffic Association (NMFTA) (effective in August 2016), form of bill of lading is referred.
Will not, without the prior written consent of the Broker, re-b let factoringDetails = $('#factoring_details'); roker, co-broker, subcontract, assign, interline, or transfer the transportation of shipments under this agreement to any other business conducting business under a different operating authority. In addition to all other provisions (whether at law or in equity), if CARRIER chooses to disregard this clause, BROKER shall have the option of paying the money it owes CARRIER directly to the real carrier rather than to CARRIER. After receiving payment from the broker to transport the shipment, the carrier is still liable for all obligations to BROKER under this service Agreement or otherwise, including any dispute under MAP-21 (49 U.S.C. § 13901 et seq.). In addition to the indemnity compliance in Par 1.H, CARRIER will be responsible for concerned damages for breach of this provision.
Is in, and shall maintain regulations during the term of this service Agreement, with all applicable federal, state and local laws concerned to the provision of its services including, but not limited to: transportation of Hazardous goods (including the licensing and training of Haz-Mat qualified drivers), as mentioned in 49 C.F.R. §172.800, §173, and §397 et seq. to the extent that any freight hereunder constitute Hazardous Materials; security regulations; owner/operator lease regulations; loading and securing of freight regulations; rolling out and adhering of driver safety norms including, but not limited to, hiring, controlled substances and alcohol testing, and time of service regulations; sanitation, temperature, and contamination needs for transporting food, perishable, and other products, including without limitation the Food Safety Modernization Act, the Sanitary Food Transportation Act of 2005 and the FDA’s Final Rule pertaining to Sanitary Transportation of Human and Animal Food, qualification and licensing and training of drivers; processing and maintenance of equipment safety regulations; maintenance and control of the means and types of transportation including, but not limited to, performance of its drivers; all applicable insurance regulations and laws including but not limited to workers’ compensation. CARRIER agrees to furnish proof of compliance upon insist.
Is totally responsible for any and all management, governing, discipline, direction and control of its staff, owner/operators, and related equipment with regards to operating within all applicable federal and state legal compliance to ensure the top most safest operation of CARRIERS vehicles, drivers and facilities. Both the parties of this agreement agrees 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, and information from BROKER or BROKER’s customer with respect to any shipment at any point of time.
If CARRIER's federal Operating Authority is revoked, suspended, or rendered inactive for any reason, or if it is sold, if there is a change in control of ownership, or if any insurance required by this agreement is threatened with termination or is terminated, suspended, or cancelled for any reason, CARRIER will notify BROKER right away.
When performing in violation of this Agreement, CARRIER shall always defend, indemnify, and hold BROKER and its shipper harmless from any claims, actions, or damages, including loss and damage to products, theft, delays, damage to freight, and person injury or death. As a result of the carelessness or intentional act of the other Party or the shipper, neither Party shall be liable to the other for any claims, actions, or damages. All accruing defence expenses are a part of the duty to defend.
Has analyzed, monitors, and accept to operate the business hereunder based on the credit-worthiness of BROKER and is following BROKER credit terms accordingly.
In order to benefit the BROKER and all shippers, consignors, consignees, receivers, and other parties with an interest in the conveyance of the freight. If any freight covered by this Agreement is transported inside the State of California, CARRIER guarantees that all necessary equipment, such as semi-trailers, containers, truck vans, shipping containers, and railcars, that transports them under this Agreement are in conformity with (i) the California Air Resources Board's (ARB) Heavy-Duty Vehicle Greenhouse Gas (Tractor-Trailer GHG) Emission Reduction Regulations, (ii) all refrigerated equipment used in the state complies in full with all applicable in-use and airborne toxic control measure (ATCM) regulations for Transport Refrigerated Units (TRUs), and (iii) the On-Road Heavy-Duty Diesel Vehicles (In-Use) Regulation or the Truck and Bus Regulation of the California Air Resources Board (ARB). Any liabilities or other penalties imposed on the same, or considered by BROKER due to penalties rendered on BROKERS customer(s) as a result of CARRIER's use of non-compliant equipment, shall be the responsibility of CARRIER to BROKER and any and all shippers, consignors, consignees, receivers, and any other parties with any readiness to the transportation of the freight.
SHIPMENTS, BILLING & RATES: BROKER shall offer CARRIER at least one (1) loads/shipments weekly. BROKER will keep CARRIER posted of (i) place of origin and delivery location of all shipments; and (ii) if applicable, any specific shipping and handling demands, special equipment needs, or value of shipments in excess of the amount mentioned in Par. 3C(vi) below, of which BROKER has been posted time to time.
BROKER accepts to conduct all billing activities to shippers, consignees, or other party responsible for payment. CARRIER shall generate invoice BROKER for its (CARRIER’s) freight charges, as mutually accepted by parties & contained in BROKER’s Freight Confirmation Sheet(s) / dispatch documents referred herein by this reference. Any additional rates for truckload or LTL shipments, or modifications or changes of the above rates, or additional rates, may be enforced to meet dynamic market conditions, shipper needs, BROKER requirements, and/or specific shipping time table as mutually accepted upon, and shall be attested in writing (or by fax or email) by both Parties. Any such additional, changed, or amended rates, changes in rates shall accordingly incorporated herein by this reference.
RATES: Additionally, any rates, which may be mutually agreed upon, shall be deemed accepted in writing where CARRIER has invoiced the agreed rate and BROKER has paid it. All written acceptances of rates, including confirmations by invoicing and payment, shall be incorporated herein by this reference. Rates or commercials, including but not limited to stop-offs, detention, loading or unloading, diesel fuel surcharges, or other accessorial costs, tariff rates, released rates or values, or tariff rules or circulars, will be only be valid when their terms are preciously agreed to in a writing signed by both Parties.
PAYMENT: The Parties accept that BROKER is the only party responsible for payment of CARRIER's rates & charges. If BROKER is unsuccessful to collect payment from its shipper shall not deviate BROKER of its obligation to pay CARRIER. BROKER accepts & agrees to pay CARRIER's invoice within ____ days of receiving of the bill of lading or POD, provided CARRIER is not in default under the terms of this Agreement. If BROKER has kept CARRIER unpaid for invoices as agreed, and CARRIER has complied with the terms of this Agreement, CARRIER may look payment from the Shipper or other parties responsible for payment after giving BROKER _____ (business days) advance notice in writing. CARRIER shall not seek payment from Shipper, consignees, or third parties, if they can certify payment to BROKER. (If blanks are not filled in, a default time of 30 days shall apply to Broker’s obligation to pay Carrier bills, and a default figure of 15 days shall apply to Carrier’s notice requirement.)
BOND: BROKER shall retain a surety bond /trust fund as accepted to in the amount of (not less) than $75,000.00 and on file with the Federal Motor Carrier Safety Administration (FMCSA) in the form and amount should not be less than that needed by that agency’s regulations.
BROKER will inform CARRIER immediately if its federal Operating Authority is suspended, revoked or rendered disabled for any reason; and/or if it is sold, or if there is a modification in control of ownership, and/or any insurance needed hereunder is threatened to be or is terminated, cancelled, suspended, or revoked for any particular reason.
BROKER’s responsibility is restricted to arranging for, but not performing, transportation in reality for a shipper’s freight.
EQUIPMENT: Subject to its representations and warranties mentioned in Paragraph 1 above, CARRIER agrees to provide the required equipment and qualified manpower for completion of the transportation services needed for BROKER and/or its customers. CARRIER will not provide equipment that has been used for movement of hazardous wastes, solid or liquid, regardless of whether they achieve the definition in 40 C.F.R. §261.1 et. seq. CARRIER will provide equipment for transporting cargo which is sanitary, and free of any contamination, appropriate for the particular goods being transported and which will not cause in whole or in part adulteration of the goods as defined in 21 U.S.C§ 342.CARRIER agrees that all shipments will be transshipped and delivered with reasonable dispatch, or as otherwise agreed in writing.
BILLS OF LADING: CARRIER shall sign a bill of lading, generated by shipper or CARRIER in Regulatory with 49 C.F.R. §373.101 (and any changes thereto), for the freight charges it receives for transportation under this Agreement. In other case agreed in writing, CARRIER will be sole responsible/liable for the freight when it takes/collects, possession thereafter, and the truck(s) are loaded, regardless of whether a bill of lading has been passed, and/or signed, and/or delivered to CARRIER, and which responsibility/liability shall exist until delivery of the goods to the consignee and the consignee acknowledges the bill of lading or delivery receipt. The foregoing mentioning is not intended to limit or waive the application of the law related to happened damages. Any terms of the bill of lading (including but not limited to credit terms and payments, released rates or released value) inconsistent with the clauses of this Agreement shall be ineffective. If unable to issue a bill of lading, or sign a bill of lading confirming receipt of the cargo, by CARRIER, shall not make any change to the liability of CARRIER.
CARRIER shall adhere with 49 C.F.R. §370.1 et seq. and any changes and/or any other applicable laws referred by the Federal Motor Carrier Safety Administration, U.S. Department of Transportation, or any other state regulatory agency, for processing all loss and damage claims and salvage. CARRIER accept that goods that has been transported or offered for transport under circumstances that are not in compliance with Shipper's or BROKER'S instructions, as provided to CARRIER by Shipper or BROKER, will be conclusively defined to be "adulterated" within the definition of the Federal Food, Drug and Cosmetic Act, 21 U.S.C. § 342 (i). CARRIER undertakes and agrees that adulterated shipments may be not accepted by the consignee or receiver, at destination without diminishing or affecting CARRIER'S liability at the time of a cargo claim. CARRIER shall not initiate sell, salvage or disposal or try to sell or salvage or dispose any commodity without the BROKER's written permission; and
CARRIER’s responsibility for any cargo damage, loss, or theft from any cause shall be categorized under the Carmack Amendment, 49 U.S.C. §14706 as applicable; whereas, liability for exempt commodities and processing freight loss and damage claims shall be determined by: DRC Trading Practices, Blue Book Transportation Guidelines, or NAPTWG Best Practices by mutual agreement of the Parties, and in the absence of such an agreement, by the rules of one of the aforementioned associations at the time the BROKER is chosen,
Special Damages: CARRIER’s indemnification liability (Par 1.H) for goods loss and damage claims under this sub-par C (ii) shall consist legal fees which shall constitute special damages, the risk of which is basically assumed by CARRIER, and which shall not be limited by any liability of CARRIER under Subp. (ii) Above.
Except as provided in Par 1.E above, neither Party shall be liable to the other for consequential damages without prior written notification of the risk of loss and its estimated financial amount, and agreement to consider such responsibility in writing.
Notwithstanding the terms of 49 CFR 370.9,CARRIER shall pay, decline or make settlement offer in writing on all cargo loss or damage claims within _____ days of receipt of the claim. Unsuccessful attempt of CARRIER to pay, decline or offer resolution within this _____ day period shall be deemed admission by CARRIER of total liability for the amount assert and a material breach of this Agreement. (If blanks are not filled in, the automatic figures shall be 60 days for the 1st blank and 45 days for the 2d blank.)
INSURANCE: CARRIER shall furnish BROKER with Certificate(s) of Insurance, or insurance policies providing thirty (30) days prior notice in writing 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 inclusive of environmental damages due to release or discharge of hazardous substances); cargo damage/loss, $100,000.00; workers’ compensation with limits needed by law. Except for the greater coverage limits which may be specified overleaf, the insurance policies shall comply with minimum needs of the Federal Motor Carrier Safety Administration and any other applicable legal state agency. Nothing in this Agreement shall be formed to avoid or limit CARRIER’s liability due to any policy limits or exclusion or recovery in any insurance policy.
ASSIGNMENT OF RIGHTS: CARRIER accordingly assigns to BROKER all its rights to accept freight charges from Shipper or any responsible third party on receipt of payment of its freight charges from BROKER.
CARRIER assumes total 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 individual engaged in the performance of its transportation services hereunder. BROKER shall not be responsible for any of the payroll-related tax obligations specified overleaf and CARRIER shall indemnify, defend, and hold BROKER harmless from any claim or liability rendered or claimed against BROKER for any given obligations.
INDEPENDENT CONTRACTOR: The connection of the Parties to each other shall at all times be that of independent contractors. No single term of this Agreement, or any act or omission of either Party shall be formed for any specific purpose to express or imply a joint venture, partnership, principal/agent, fiduciary, or employer/employee connection between the Parties. Each Party shall provide sole directions and shall have total control over the actions and operations of its employees, and agents used to operate hereunder. Neither Party has any right to control, discipline or direct the performance of any individual employee, or agents of the other Party. Neither Party shall present to any party that it is something other than an independent contractor in its connection to the other Party.
NON-EXCLUSIVE AGREEMENT: CARRIER and BROKER acknowledge and accept that this contract does not bind the respective Parties to absolute services to each other. Any party may get into similar agreements with other brokers, carriers, or freight forwarders.
Failure of either Party to enforce a breach or waiver of any condition or term of this Agreement shall not be deemed to constitute a waiver of any succeeding failure or breach, and shall not affect or limit the right of either Party to thereafter apply such a term or provision.
This Agreement is for specified services according to 49 U.S.C. §14101(b). To the limit that terms and conditions hereafter are inconsistent with Part (b), Subtitle IV, of Title 49 U.S.C. (ICC Termination Act of 1995), the Parties clearly waive any or all rights and remedies they may have under the Act.
DISPUTES: In the event of a debate arising out of this Agreement, including but not limited to Federal or State legal claims, the Party’s recourse (except as provided below) shall be to arbitration, or Law suit under subpars (ii) or (iii) below. Arbitration activities shall be conducted basis the rules of the (select one): ___ American Arbitration Association (AAA), ___ Transportation ADR Council, Inc. (ADR), ___ DRC (Fruit and Vegetable Dispute Resolution Corp) for fresh produce related claims, upon mutual agreement of both the Parties, or if no agreement, then at BROKER’s sole caution. Arbitration activities shall be initiated within timeline of eighteen (18) months from the date of delivery or scheduled date of delivery of the shipment, whatever is later. Upon agreement of the Parties, arbitration activities may be processed outside of the administrative control of the AAA, ADR, or DRC. The decision of the arbitrators shall be applicable and final and the award of the arbitrator may be entered as judgment in any court of competent jurisdiction. The rationale and reasoning of the decision of arbitrator(s) shall be fully described in a written opinion, including findings of fact and conclusions of law. The prevailing party shall be entitled to regaining of costs, expenses and appropriate attorney fees as well as those incurred in any activity for injunctive relief, or in the event further legal action is taken to apply the award of arbitrators. Arbitration activities shall be processed at the office of the AAA, ADR, or DRC at given other place as mutually agreed upon in through writing, or by phone call or video conferencing upon acceptance of the Parties, or if no agreement then at the selection of the BROKER or as guided by the acting arbitration association. Provided, whereas, either Party may apply to a court of competent jurisdiction for injunctive relief. Unless preempted or governed by federal transportation law and regulations, the laws of the State of ______ shall be controlling notwithstanding applicable strife of laws rules. The arbitration provisions of this paragraph shall not apply to application of the award of arbitration.
(OPTIONAL): (BROKER SIGN_____; CARRIER SIGN_____) Subject to the time limitation set forth in clause. D above, for debates where the amount in controversy is greater than $___________, BROKER shall have the right, but not the obligation, to select legal action in order to overcome any debate arising hereunder. In the event of legal action, the prevailing Party shall be entitled to recover costs, expenses and appropriate attorney fees, inclusive but not limited to any incurred on appeals.
(OPTIONAL): (BROKER SIGN________; CARRIER SIGN_________) Subject to the time limitation set forth in Subp. D above, for debates where the amount in controversy does not exceed $__________, BROKER shall have the right, but not the obligation, to select legal action in small claims court order to overcome any debates arising hereunder. The prevailing Party shall be entitled to recover costs, expenses and appropriate attorney fees, including but not limited to any incurred on appeals.
(IF i AND/OR ii ARE ADOPTED, THEN iii MUST BE INCLUDED) location, controlling law, and jurisdiction in any legal proceedings under clause i or ii above shall be in the State of ________________.
If no remedy under subparagraph (i) or (ii) is selected, all debates shall be subject to the arbitration terms set forth in paragraph D above. If no arbitration company is selected, then the default association shall be Transportation ADR Council Inc (ADR) and the applicable state law shall be that of the residence office of the BROKER.
Unless otherwise agreed in writing, CARRIER shall not knowingly appeal freight shipments (or accept shipments) for a time frame of ______ month(s) following termination of this agreement for any genuine reason, from any consignor, shipper, consignee, or other customer of BROKER, when such cargo of shipper customers were first given to CARRIER by BROKER. If no figure is inserted in the blank, then 12 months shall be the applicable term.
In the event of violation of this provision, BROKER shall be entitled, for a period of __________ months following delivery of the last shipment transshipped by CARRIER under this Agreement, to a commission of __________ percent (_____%) of the gross transportation revenue (as as freight bills) received by CARRIER for the transportation of said shipment as liquidated damages. Also, BROKER may look for injunctive comfort and in the event it is successful, CARRIER shall be liable for all expenses and costs incurred by BROKER, including, but not limited to, appropriate attorney's fees.
In addition to Confidential details protected by law, statutory or otherwise, the Parties agree that all of their commercial / financial information and that of their customers, including but not limited to shipment and brokerage rates, revenue received for brokerage services, amounts of freight charges collected, freight volume needs, as well as individual customer information, customer shipping or other logistics needs shared or understood between the Parties and their customers, shall be considered as Confidential, and shall not be shared or used for any reason without advance written consent.
In the event of breach of this Confidentiality paragraph, the Parties agree that the remedy at law, including monetary damages, may be insufficient and that the Parties shall be entitled, in addition to any other remedy they may have, to an injunction preventing the violating Party from further violation of this Agreement in which case the non-prevailing Party shall be responsible for all costs and expenses occurred, including but not limited to appropriate attorney’s fees.
The limitations of liability for loss and damage of goods as well as any other liabilities appear out of the transportation of shipments, which originate elsewhere than United States of America, may be subject to the regulations of the nation of origination.
MODIFICATION OF AGREEMENT: This Agreement may not be amended, except with mutual written agreement, or the process set forth above (Pars 2.B and 2.C).
Should CARRIER change any provision of this agreement, whether in handwritten form, changed text or otherwise, such amendment shall not be applicable, unless BROKER has initialed such change in close proximity thereto confirming BROKER’s specific acceptance of such changes.
Additionally, the provisions of this Agreement shall be deemed to replace and shall prevail over any complex terms set forth in any load confirmation, rate confirmation, dispatch sheet or any other document belonging to this Agreement, whether any such paperwork was signed prior to, contemporaneously with or consecutive to execution of this Agreement.
The Parties shall immediately inform each other of any claim that is asserted against either of them by anyone appearing out of the Parties performance of this Agreement.
Notices sent as needed hereunder, to the addresses reflected in this Agreement shall be deemed sent to the correct address, unless the Parties are notified in writing of any modifications in the address.
CONTRACT TERM: The validity of this Agreement shall be one year from the date hereof and thereafter it shall automatically be renewed for further one (1) year periods, unless terminated, upon thirty (30) day's prior written notice, with or without reason, 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 required to complete performance of any work already in progress in accordance with the terms of this Agreement.
SEVERANCE: SURVIVAL: In the event any of the terms of this Agreement are bound to be invalid or unavoidable, no other terms shall be impacted and such terms shall remain valid and enforceable as mentioned. The representations, rights and obligations of the parties hereunder shall survive termination of this Agreement for any cause.
COUNTERPARTS: This Agreement may be implemented in any number of counterparts each of which shall be deemed to be a duplicate original hereof.
FAX CONSENT: The Parties to this Agreement are permitted to fax to each other at the numbers shown herein, (or otherwise modified in writing from time to time) shipment availabilities, equipment and rate declarations, or any adds of new services.
FORCE MAJEURE. In the event that either Party is prevented from executing its obligations under this Agreement because of an occurrence out of its control and arising without its fault or negligence, including without limitation, war, riots, rebellion, acts of God, acts of lawful authorities, fire, strikes, lockdowns or other labor debates, such failures to perform (except for any payments due hereunder) shall be excused for the tenure of such occurrence. Economic downtime, including, but not limited to, recession and depression, shall not constitute Force Majeure circumstance.
TOTAL AGREEMENT: Unless otherwise taken in writing, this Agreement involves the entire understanding of the Parties and supersedes all verbal or written prior agreements, provisions, and understandings of the Parties relating to the subject matter mentioned herein, whether any such paper was signed prior to, contemporaneously with or consecutive to execution of this Agreement. The Parties also mean that this Agreement integrate the entire and exclusive declaration of its terms, and that no external evidence may be introduced to reform this Agreement in any judicial or arbitration movements part of this Agreement. IN WITNESS WHEREOF, we have signed this Agreement on the date and year mentioned first overleaf.
