STANDARD TERMS AND CONDITIONS -  CARRIER SPOT CONTRACT AGREEMENT

 

1.           Referral and Performance of Services.  Broker may refer to Carrier, and Carrier may accept from Broker, transportation services to be performed by Carrier as set forth on one or more mutually agreed upon bills of lading.  Broker and Carrier agree that any services referred to Carrier by Broker shall be performed pursuant to the terms and conditions of this Agreement.  In the event of any conflict between this Agreement and any individual bill of lading, the terms of this Agreement shall control (but only with respect to the services provided under such bill of lading).  This Agreement is not intended to be an exclusive arrangement for Broker or Carrier, and the parties acknowledge and agree that Broker may refer transportation services to other carriers and Carrier may perform transportation services for other Brokers and customers subject

2.           Terms.   On a per load basis.

 

3.           Compliance with Law.  Carrier represents and warrants that it is duly and legally qualified to provide, as a contract carrier, the transportation services contemplated by this Agreement.  Carrier further represents and warrants that it does not have a conditional or unsatisfactory safety rating issued by any regulatory authority with jurisdiction over Carrier’s operations, including, but not limited to, the Federal Motor Carrier Safety Administration (“FMCSA”) of the U.S. Department of Transportation (“DOT”), and is not rated as “deficient” with respect to any Safety Evaluation Area (“SEA”) maintained by the FMCSA.  Carrier further agrees to comply with all applicable laws in the performance of its services under this Agreement.  In the event that Carrier receives a conditional or unsatisfactory safety rating, any SEA shall change to “deficient,” or is otherwise prohibited by applicable law from performing services hereunder, Carrier shall immediately notify Broker of such fact and shall not carry any loads or goods tendered to Carrier by Broker until such prohibition on operations is removed. Carrier shall furnish to Broker a copy of its operating authority upon request.

 

4.           Hazardous materials.   In the event Carrier is requested to transport hazardous materials or waste requiring vehicle placarding under 49 C.F.R. Part 181, Carrier represents and warrants that it has obtained all necessary federal permits and registrations to transport hazardous materials or waste in inter-provincial, interstate and/or intrastate commerce.  Upon request, Carrier shall provide Broker with a copy of all such federal and state permits and registrations.  Carrier further represents and warrants that all drivers used to transport hazardous material shipments have undergone the necessary training requirements of state and federal laws, including, but not limited to, the training requirements under 49 C.F.R. Part 126(F).  Carrier further warrants and certifies that all drivers used to transport hazardous material have the proper endorsements on their Commercial Driver's License to legally transport such shipments.  Carrier and its drivers shall comply with all federal, state and local laws regarding the transportation of hazardous material, including, but not limited to, the requirements specified under 49 C.F.R. Part 181, and 49 C.F.R. Part 397. 

 

5.           Receipts and Bills of Lading.  Each shipment hereunder shall be evidenced by a bill of lading naming Carrier as the transporting carrier.  In the event that Broker is erroneously named as a “carrier” on the bill of lading, such fact shall in no way alter Broker’s status as a property broker.  The bill of lading shall act as shipping instructions and a receipt only, and shall be prima facie evidence of Carrier’s receipt of the goods stated therein in good condition unless otherwise noted thereon.   Upon delivery of each shipment made hereunder, Carrier shall obtain a receipt showing the kind and quantity of product delivered to the Customer at the destination specified by Broker or the Customer, and Carrier shall cause such receipt to be signed by a representative of the recipient of the shipment.

 

6.           Carrier’s Operations; Independent Contractor.

 

(a)   Carrier shall, at its sole cost and expense: (i) furnish all equipment necessary or required for the performance of its obligations hereunder (the “Equipment”); (ii) pay all expenses related, in any way, with the use and operation of the Equipment; (iii) maintain the Equipment in good repair, mechanical condition and appearance; and (iv) utilize only competent, able and legally licensed personnel.

 

(b)  Carrier acknowledges and agrees that it shall perform all services under this Agreement as an independent contractor.  Any and all employees furnished by Carrier shall be employees of Carrier and shall be hired, directed, paid, controlled, and discharged solely by Carrier. Carrier shall file all forms and returns, and pay all financial obligations arising out of the services performed under this Agreement, including, without limitation, workers compensation, unemployment compensation, and all withholding and employment taxes due to federal, state, and local government agencies on account of employees.  Nothing in this Agreement shall be construed to give either party the power to direct or control of the daily activities of the other party, or to constitute the parties as principal and agent, employer and employee, franchisor and franchisee, partners, joint venturers, co-owners, or otherwise as participants in a joint undertaking. The parties understand and agree that, except as specifically provided in this Agreement, neither party grants the other party authority to make or give any agreement, statement, representation, warranty, or other liability or obligation, express or implied, on behalf of the other party, or to transfer, release, or waive any right, rule, or interest of such other party.

 

7.           Indemnity.  Carrier shall defend, indemnify, and hold Broker harmless from and against all loss, liability, damage, claims, fines, costs or expenses, including attorney’s fees, arising out of or in any way related to (i) the performance of services pursuant to this Agreement and (ii) the performance or breach of this Agreement, by Carrier, its employees or independent contractors working for Carrier (collectively, the “Claims”), including, but not limited to, Claims for or related to personal injury (including death), property damage and Carrier’s possession, use, maintenance, custody or operation of the Equipment.

 

8.           Insurance.  Carrier shall procure and maintain, at its sole cost and expense, all insurance coverage required by the U.S. Department of Transportation and any state in which Carrier will operate, along with such other insurance coverage as Broker may require.  Insurance coverage required of Carrier under this Section 8 shall include, without limitation:

 

(a)         Business Automobile Liability / Public Liability Insurance covering all vehicles used in Carrier’s operations under this Agreement, in an amount not less than $1,000,000.00 in combined single limits for bodily injury and property damage per occurrence; provided, however, that the minimum amount of coverage shall be increased to $5,000,000 and the policy properly endorsed to cover hazardous material transportation when so required.

 

(b)         All Risk Broad Form Motor Truck Cargo Legal Liability Insurance in an amount not less than $250,000 per occurrence.  Such insurance policy shall name Broker as a loss payee and provide coverage to Broker, the Customer or the owner and/or consignee for any loss, damage or delay related to any property coming into the possession of Carrier under this Agreement.  The coverage provided under the policy shall have no exclusions or restrictions of any type that would foreseeably preclude coverage relating to cargo claims, including, without limitation, exclusions for unattended tractors or trailers.

 

(c)         Commercial General Liability Insurance covering operations under this Agreement in an amount not less than $1,000,000.00 in combined single limits for bodily injury and property damage per occurrence.  Such insurance also shall cover Carrier’s contractual liability under this Agreement.

 

(d)         Statutory Workers’ Compensation Insurance coverage in such amounts and in such form as required by applicable laws and Employer’s Liability Insurance in an amount not less than $1,000,000.

 

(e)         Carrier shall furnish to Broker written certificates obtained from the insurance carrier(s) specifying:  (i) the insurance coverage has been procured; (ii) the expiration date of such coverage; and (iii) that written notice of cancellation or modification of the policies shall be given to Broker at least thirty (30) days prior to such cancellation or modification.  Upon request, Carrier shall provide Broker with copies of the applicable insurance policies.

 

(f)          In addition to the other requirements set forth in this Section 8, all insurance coverages / policies must:  (i) be maintained with insurance companies qualified to do business in all applicable jurisdictions and holding a rating of B+ or better as set forth in the most current issue of Best's Insurance Guide; (ii) contain a waiver of subrogation against Broker, its parents, subsidiaries, and affiliated companies; and (iii) name Broker as an additional insured (except with respect to Workers’ Compensation).

 

(g)         Insurance required under this Section 8 shall be kept in force until all of Carrier’s obligations under this Agreement have been fully discharged and fulfilled.

 

(h)         Nothing contained in this Section 8 or elsewhere in this Agreement shall limit, or be construed to limit, Carrier’s liability to the amounts of required insurance coverage.

 

9.           Freight Loss, Damage or Delay.  Carrier shall have the sole and exclusive care, custody, and control of the Customer’s property from the time it is delivered to Carrier for transportation until delivery to the consignee accompanied by the appropriate receipts as specified in Paragraph 5.  Carrier assumes the liability of a carrier pursuant to the Carmack Amendment as currently codified at 49 U.S.C. § 14706 for loss, delay, damage to or destruction of any and all of Customer’s goods or property while under Carrier’s care, custody or control.  Carrier shall pay to Broker, or allow Broker to deduct from the amount Broker owes Carrier, Customer’s full actual loss for the kind and quantity of commodities so lost, delayed, damaged or destroyed.  Carrier shall be liable to Broker for all economic loss, including consequential damages that are incurred by Broker or the Customer for any freight loss, damage or delay claim. Payments by Carrier to Broker or its Customer, pursuant to the provisions of this section, shall be made within thirty (30) days following receipt by Carrier of Broker’s or Customer’s invoice and supporting documentation for the claim. Carrier waives any right to salvage unless specifically granted in writing in the sole discretion of the Customer or owner.

 

10.        Waiver of Carrier’s Lien.  Carrier shall not withhold any goods of the Customer on account of any dispute as to rates or any alleged failure of Broker to pay charges incurred under this Agreement.  Carrier is relying upon the general credit of Broker and hereby waives and releases all liens which Carrier might otherwise have to any goods of Broker or its Customer in the possession or control of Carrier.

 

11.        Payments.  Unless otherwise stated in a separate Rate Confirmation Agreement signed by the parties, Carrier will invoice and Broker will pay the rates and charges set forth in Schedule A, for transportation services performed under this Agreement.  Carrier represents and warrants that there are no other applicable rates or charges except those established in this Agreement or in any Rate Confirmation Agreement signed by the parties.  Payment by Broker will be made within thirty (30) days of receipt by Broker of Carrier’s freight bill, bill of lading, clear delivery receipt, and any other necessary billing documents enabling Broker to ascertain that service has been provided at the agreed upon charge.  Schedule B details specific invoices requirements.  Carrier shall provide signed proof of delivery within fifteen (15) days of delivery. Carrier agrees to refrain from all collection efforts against the shipper, receive, consignor, consignee or the Customer.  Carrier further agrees that Broker has the discretionary right to offset any payments owned to Carrier hereunder for liability incurred by Carrier pursuant to Section 9 of this Agreement.

 

12.        Confidentiality and Non-Solicitation.  Neither party may disclose the terms of this Agreement to a third party without the written consent of the other party except (1) as required by law or regulation; (2) to its parent, subsidiary or affiliate company; or (3) to facilitate rating or auditing of transportation charges by an authorized person and such person agrees to keep the terms of this Agreement confidential.  Carrier will not accept traffic from any shipper, consignor, consignee or customer of Broker where (1) the availability of such traffic first became known to Carrier as a result of Broker’s efforts, or (2) the traffic of the shipper, consignor, consignee or Customer of Broker was first tendered to Carrier by Broker.  If Carrier breaches this Agreement and directly or indirectly accepts such traffic during the term of this Agreement of for twelve (12) months thereafter, Carrier shall be obligated to pay Broker, for a period of fifteen (15) months thereafter, commission in the amount of thirty-five percent (35%) of the transportation revenue resulting from traffic transported in violation of this provision, and Carrier shall provide Broker with all documentation requested by Broker to verify such transportation revenue.

 

13.        Broker’s Records.  To the extent allowable under applicable law, Carrier hereby waives its right to obtain copies of Broker’s records as provided under 49 C.F.R. Part 371.  Notwithstanding the foregoing, to the extent that Carrier obtains records set forth in 49 C.F.R. § 371.3 by any means whatsoever, Carrier agrees to refrain from utilizing such records in negotiating for the provision of services with any third party, including existing customers of Broker.  Carrier further agrees and understands that all such records comprise Broker’s confidential information and trade-secrets.  Nothing in this section is intended to relieve Carrier of any other obligations imposed upon it by this Agreement, or to limit any rights of Broker to enforce such obligations.

 

14.        Sub-Contract Prohibition.  Carrier specifically agrees that all freight tendered to its by Broker shall be transported on equipment operated only under the authority of Carrier, and that Carrier shall not in any manner sub-contract, broker, or in any other form arrange for the freight to be transported by a third party without prior written consent of Broker.

 

15.        Assignment; Entire Agreement; Amendment.  This Agreement may not be assigned or transferred in whole or in part by Carrier, and supersedes all other agreements and all tariffs, rates, classifications, service guides, circulars and schedules published, filed or otherwise maintained by Carrier.  There are no understandings, agreements or representations, express or implied, between the parties with respect to the subject matter of this Agreement that are not specified herein.  This Agreement shall be binding upon and inure to the benefit of the parties hereto, and may not be amended except by a written document referencing this Agreement that is signed by an authorized representative of each party.

 

16.        Severability.  In the event that the operation of any portion of this Agreement results in a violation of any law, the parties agree that such portion shall be severable and that the remaining provisions of this Agreement shall continue in full force and effect.

 

17.        Waiver.  Carrier expressly waives any and all rights and remedies allowed under 49 U.S.C. §14101 to the extent that such rights and remedies conflict with this Agreement.  No failure or delay by Broker in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall Broker’s waiver of any right, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder.

 

18.        Customers.  The obligations of Carrier under this Agreement shall extend not only to Broker but also to the Customers.

 

19.        Safety.  Carrier agrees to immediately notify Broker of any accident or event which impairs the safety of or delays delivery of goods or shipments, and also agrees to use reasonable care and due diligence in the protection of said goods and shipments. In the event Broker determines, in Broker’s sole discretion, that Carrier is unable or unwilling to deliver the goods or shipments without delay and without reasonable protection of said goods or shipments, Broker may immediately terminate carrier’s transportation contract for such goods or shipments and carrier will cooperate in transferring the goods or shipments to a carrier of Broker’s choosing.

 

 

20.        Governing Law; Venue.  This Agreement shall be governed by and construed under the laws of the Commonwealth of Pennsylvania, without regard to the choice of law provisions thereof.  The exclusive venue for any action arising from, related to, or brought to enforce, this Agreement shall be Bucks County, Pennsylvania and the state or federal courts located therein.  The parties irrevocably submit to the personal and subject matter jurisdiction of such courts.

SCHEDULE A 
                 

SELECTED CHARGES FOR MOST FREQUENTLY USED ACCESSORIALS

LIQUID COMMODITIES

SERVICE

QUALIFIER

CHARGES

Air Blower

When order

included in LH

Air Comp

When order

included in LH

Air Dryer

When order

included in LH

Deadheading

Per mile

$1.80

Heel Disposal

Actual 

N/A

Hoses ( after standard 40ft )

Each addition 20ft.

$20.00

Drumming Nozzles(Std)

When order

included in LH

Pump (Std)

When order

included in LH

Steaming

Per hour 

Actual

In Transit

When order

included in LH

Extra Stop Pay

When order

$50.00

Spotting

Per 24 hour

$150.00

Weight and Scale

When order

actual

Load Order not Taken

1.80 per running mile ,min 150.00 to/from nearest terminal 

$150.00

Layovers 1700 - 0800

Reject/Return Shipment 

Overnight   - $300.00

50% of line haul rate 


$300.00




  



 

STANDARD TERMS AND CONDITIONS -  SHIPPER SPOT CONTRACT AGREEMENT

      

1.      Term.   On a per load basis.
 
2.     Broker’s Compliance with Law.         Broker represents and warrants that it is duly and legally qualified to operate as a property broker and to arrange the transportation services contemplated herein.  Broker agrees to comply with all federal, state and local laws regarding the provision of such brokerage services.  The parties understand and agree that Broker functions as an independent entity, and not as a carrier, in selling, negotiating, providing and arranging for transportation for compensation.
 
3.     Payment and Charges.  Shipper shall tender certain shipments, from time to time, to Broker.  The charges and rates for each shipment shall be provided in Appendix A, attached hereto and incorporated herein. In addition, from time-to-time rates may be agreed upon orally, as spot rates. Such rates must be confirmed by exchange of email or fax.    Shipper agrees to pay Broker within thirty (30) days of receiving the invoice, with interest accruing monthly at a rate of one percent (1%).  Shipper also shall be liable for any expenses, including attorneys’ fees, Broker incurs in collecting its rates and charges.
 
4.      Indemnification.  Broker shall defend, indemnify and hold harmless Shipper from any loss or damage, including without limitation injury to persons (including death) and loss or damage to property, that Shipper may incur as a direct result of Broker’s negligent acts or omissions.  However, it is understood and agreed that Broker assumes no liability for bodily injury (including death), loss or damage to property, or public liability arising out of the involved transportation.  Shipper shall defend, indemnify and hold harmless Broker from any and all loss or damage, including without limitation injury to persons (including death) and loss or damage to property, that Broker may incur as a direct result of Shipper’s negligent acts or omissions.
 
5.     Independent Contractor.  Broker represents and warrants that it is an independent contractor under this Agreement and that its agents and/or employees are under Broker's exclusive management and control, and that Shipper neither exercises nor retains any control over Broker, its operations, agents or employees in any manner whatsoever.
 
6.     Contract Carriers. Broker shall make reasonable efforts to place Shipper’s loads with responsible carriers for the purposes of transporting the loads with reasonable dispatch under the direction of Shipper.  However, the parties understand and agree that Broker, by signing this Agreement, makes no express or implied warranties or guarantees concerning delivery time or the locating of a carrier to provide the transportation services requested by Shipper.
 
7.     Cargo Loss, Damage, or Shortage.  In the event of a cargo loss, damage or shortage claim, Shipper agrees to notify Broker immediately by phone and to subsequently submit to Broker a written claim, fully supported by all relevant documentation, including but not limited to the signed delivery receipt, listing the nature and cause of the claim for cargo loss, damage or shortage within twenty (20) days following the date of delivery.  No claims or allowances for cargo loss, damage or shortage will be considered unless clearly noted on the delivery receipt or bill of lading signed by the consignee at delivery.  Broker assumes no liability for cargo loss, damage, shortage or delay; however, Broker agrees make commercially reasonable efforts in submitting, negotiating and settling cargo claims with the responsible carrier, and to keep Shipper reasonably advised of the status of all such claims.  Upon Shipper’s request, Broker shall assign its rights against the carrier to Shipper.  If Broker, in its sole discretion, pays any such claims to Shipper, Shipper shall immediately assign its rights and interest in the claim to Broker to allow Broker to subrogate its loss.  In no event shall Broker be liable to Shipper for special, incidental, consequential, or punitive damages that relate to cargo loss, damage, shortage or delay claims.  Nothing herein shall be construed to restrict any right or cause of action Shipper may have against any carrier involved with the transportation of Shipper’s shipment.
 
8.     Shipping Documents Unless otherwise agreed in writing, all shipments tendered shall be accepted on a bill of lading acceptable to Shipper as the shipping document.  In the event of a conflict between the bill of lading terms and this Agreement, this Agreement shall prevail.  Upon request of Shipper, Broker shall require all carriers to obtain a delivery receipt from the consignee, showing the products delivered, condition of the shipment, and the date and time of such delivery.
 
9.     Notification of Accidents or Delays.  Broker agrees to notify Shipper of any accident or other event which prevents carrier from making a timely or safe delivery.
 
10.  Assignment/Modification/Benefit of Agreement.  No party may assign this Agreement without the prior written consent of the other party. 
 
11.   Hazardous Materials.  It is Shipper’s responsibility to notify Broker of any hazardous materials, as defined in 49 CFR § 171.8, present in any shipments tendered to Broker for transportation, and to comply with all federal and state laws governing the labeling and packaging of such materials. Shipper shall indemnify, defend and hold Broker harmless against any fines, penalties, costs, damages, claims, judgments, and the like, including attorneys’ fees, resulting from Shipper’s failure to comply with this provision.
 
12.   Currency.  All amounts are in U.S. dollars.
 
13.   Confidentiality.  The parties agree not to disclose information regarding shipments transported pursuant to this Agreement to any person or entity not named in the transportation documents, except as required by law.
 
14.   Force Majeure.  Neither party shall be liable to the other for failure to perform its obligations under this Agreement if prevented from doing so because of an act of God, strikes, fire, flood, pandemic flu, civil disturbance, war or warlike act, interference by civil or military authority, governmental restrictions, or causes beyond the reasonable control of the party and not intentionally caused by such party (“Force Majeure”).  The provisions hereof shall not apply to monetary amounts owed by either party to the other.
 
15.   Notices.  All notices under this Agreement shall be in writing and effective when delivered in person, by certified or registered mail (return receipt requested), or by prepaid express delivery service to the relevant undersigned party at its address provided at the end of this Agreement, or at such other address as such party may from time to time specify in writing.
 
16.   Complete Agreement; No Waiver.  This Agreement, together with all exhibits and attachments, constitutes the entire agreement between the parties with respect to the subject matter contained herein, and may not be amended or changed except by written agreement signed by both parties.  Either party’s failure to insist upon strict performance of any provision of this Agreement or exercise any right under this Agreement shall not be construed as a waiver of such provision or right, nor shall such failure excuse the other party from future performance.
 
17.   Applicable Law; Venue. This Agreement shall be governed by and construed under the laws of the State of Florida, without regard to the choice of law provisions thereof.  The exclusive venue for any action arising from, relating to, or brought to enforce this Agreement shall be Hillsborough County, Florida and the state and federal courts located therein.  The parties irrevocably submit to the personal and subject matter jurisdiction of said courts.
 
18.   Severability.  If any individual term or provision of this Agreement is contrary to or in conflict with any requirement of applicable law, then that term or provision shall be severed from this Agreement and the remainder of this Agreement shall be binding on the Parties