Transport Carrier Agreement

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Broker Carrier Agreement

Broker/Carrier Agreement
MM slash DD slash YYYY
(the “Effective Date”) by and between(Required)
(hereinafer referred to as “Broker”). Carrier and Broker are sometimes collectively referred to as the “Parties.”
WHEREAS, Carrier is in the business of transporting freight (collectively, the “Services”);
and WHEREAS, Broker is in the business of providing freight and logistics brokerage; and

WHEREAS, Broker desires to retain the services of Carrier as an independent Carrier; and

WHEREAS, Carrier desires and has agreed to provide the Services for the compensation and in accordance with the terms and conditions set forth in this Agreement, including any attachments, amendments, and updates thereto; and

WHEREAS, the Parties desire to set forth their respective duties, obligations, and responsibilities relative to the Services.
NOW, THEREFORE,
undertakings and acknowledgments made in this Agreement for $10.00, and other good and valuable consideration, the receipt, and sufficiency of which is hereby acknowledged, and in consideration of the foregoing premises and the covenants of the Parties hereinafter set forth, the Parties
1.0 Relationship.
1.0 Relationship. The relationship between the Carrier and the Broker shall be that of an independent Carrier, each to the other, and at no time shall the employees, agents or associates of one be considered to be employees, agents or associates of the other. Carrier is not a legal agent of Broker, and shall have no right or power in any manner to enter into any contract or commitment in the name of or on behalf of Broker, or to assume or create any obligation or responsibility whatsoever on behalf of or in the name of the Broker, or to bind or obligate Broker to any written or oral contracts or other obligations, whether express or implied, in any respect whatsoever, including but not limited to payment arrangements, without Broker’s prior written consent, or to direct the work of any employee of Broker or make any management decisions or undertake to commit Broker to any course of action in relation to shippers or other third parties without the prior written consent of Broker. Carrier shall have not right or power to accept, cash and/or deposit any payments or remittances belonging to Broker. Carrier shall have sole and exclusive control and discretion regarding the manner, means and methods employed to accomplish its obligations contemplated in this Agreement. Carrier shall bear any and all costs or expenses incurred by it to perform its obligations under this Agreement. Broker shall have no obligation to reimburse Carrier for any expense incurred or paid by Carrier in connection with its Services under this Agreement, unless otherwise specifically agreed to in writing by Broker before the expenses are incurred by Carrier. Carrier is not authorized to extend, on behalf of Broker, any warranty obligation or liability in connection with the Services.
2.0 Disputes.
2.0 Disputes. The Parties desire to avoid the time and expense related to a jury trial of any dispute in connection with this Agreement. Therefore, notwithstanding anything herein to the contrary, if any matter is subject to litigation, the Parties, for themselves and their successors and assigns, each hereby waive, to the fullest extent permitted by applicable law, any right it may have to a trial by jury of any dispute in any legal proceeding directly or indirectly arising out of, in connection with or relating to this Agreement, any order, or the Services (whether based on contract, tort or any other theory) including, but not limited to all disputes between them related to any common law or statutory claims for breach of contract or unpaid wages. Any such disputes shall be referred to the Arbitration Procedures of the Transportation Broker's Conference of America (“TBCA”). The decision of the TBCA shall be binding on both Parties. The Parties acknowledge that this waiver is knowingly, freely, and voluntarily given, is desired by all Parties and is in the best interests of all Parties. Nothing herein shall prohibit or prevent the Parties from mediating any and all disputes that may arise hereunder; however, nothing herein shall require mediation.
3.0 Soliciting
3.0 Soliciting. During the term of this Agreement, and for a continuous uninterrupted period of two (2) years immediately subsequent to the termination of this Agreement for any reason (the “Restriction Period”), Carrier will not either directly or indirectly, for itself or through, on behalf of or in conjunction with any other entity, individually or as a proprietor, representative, broker, independent contractor, employee, agent, consultant, advisor, creditor, joint venturer, shareholder, partner, investor, member, manager, owner, officer, director or equity holder of, orotherwise through any other entity, solicit, call on, interfere with, attempt to divert, entice away or accept or attempt to solicit, call on, interfere with, attempt to divert, entice away or accept, for purposes of providing products or services that are competitive with those provided by Broker, any business from any of Broker's Customers, including actively sought or Prospective Customers, or otherwise divert or attempt to divert any existing business of the Broker. Carrier agrees it will not knowingly communicate by telephone, directly or otherwise, with Customers referred to it by the Broker without the express knowledge and approval of Broker. It is expressly understood by the Carrier that the provisions herein include “back soliciting.” Carrier hereby agrees that neither it nor anyone under its employ will approach Customers introduced to it by the Broker for the purpose of providing services without the participation of Broker, for as long as the Broker is in operation. For purposes of this Section 15, a Customer shall be defined as any entity from which Broker has received or accrued revenues in the 12 calendar months immediately preceding termination of this Agreement. An actively sought or Prospective Customer shall be defined as any entity with which Broker is or has been engaged in an active sales process in the 12 calendar months immediately preceding termination of this Agreement.
4.0 Payment.
4.0 Payment. Broker shall pay Carrier for services rendered in an amount equal to the rates and accessorial charges agreed to on the Broker/Carrier Rate Confirmation Sheet or other signed writing. Carrier shall submit proof of delivery with invoices to Broker immediately upon delivery. Payment terms shall be thirty (30) days from receipt of necessary supporting documentation unless otherwise arranged and agreed to in writing by both the Broker and Carrier. Carrier agrees that Broker is the sole party responsible for payment of Carrier’s invoices and that, under no circumstance, will Carrier seek payment from the shipper or consignee. Carrier may request that Broker expedite payment to Carrier by placing payment in the U.S. mail, First Class, postage prepaid, within 2 business days (“Expedited Payment”) after Broker receives a “clean” (do damages recorded) and signed bill of lading, a copy of rate confirmation, and Carrier’s invoice. The foregoing documents may be faxed or scanned and emailed; pictures of the documents will not be accepted. Expedited payment requires pre-approval of Broker in Broker’s sole discretion, and shall be provided at a charge of 5% of Carrier’s invoice.
5.0 Sub-Contract Prohibition.
Carrier expressly agrees that all freight tendered to it by Broker shall be transported on equipment operated only by or 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 the prior written consent of Broker. If Carrier breaches this provision, Broker shall have the right to pay any and all monies owed by it to Carrier directly to the delivering third-party carrier, in lieu of payment to Carrier. Upon Broker’s payment to delivering third-party carrier, Broker shall be released from all liability to Carrier for payment of said monies; however, Carrier shall not be released from any liability to Broker under this Agreement. In addition to the indemnity obligation reflected in this Agreement, Carrier shall be liable for consequential damages for violation of this Section 5.0 of this Agreement.
6.0 Minimum Insurance and Safety Requirements.
Carrier warrants to Broker and each shipper that:
(a) Carrier has obtained and maintains all-risk cargo insurance, to include mechanical refrigeration unit breakdown if applicable, in the amount(s) required by any government body for the types of transportation and related services specified in a Transportation Schedule, but in any case not less than $100,000.00 per shipment;
(b) Carrier has obtained and maintains public liability insurance in the amount of not less than $1,000,000.00 as required by 49 C.F.R. §387.303, and maintains a current BMC-91 on file;
(c) Carrier has obtained and maintains sufficient worker's compensation, employer’s liability insurance, unemployment insurance, and disability insurance, as required by state law, from an insurance carrier approved by each state in which services are performed hereunder;
(d) Carrier shall provide certificates of insurance upon request;
(e) Carrier currently maintains satisfactory U.S. DOT safety ratings and is otherwise authorized to provide the proposed services; and
(f) Carrier is in compliance with all applicable federal and state laws and regulations.
The foregoing minimum insurance limits may be modified by Broker upon thirty days written notice to Carrier. If Carrier is self-insured, a certificate of the state in which the transportation services are to be performed must be furnished by such state agencies directly to Broker. Insurance will meet or exceed the requirements of federal and state regulatory bodies having jurisdiction over Carrier's performances pursuant to this Agreement.
6.1 Insurance Priority and Beneficiaries.
All insurance required by this Agreement or a Transportation Schedule must be written by an insurance Broker having a Best’s rating of “B+” or better and must be authorized to do business under the laws of the state(s) or province(s) in which Carrier provides the transportation and related services under all of the Transportation Schedules. Carrier's insurance shall be primary and required to respond and pay prior to any other available coverage. Carrier agrees that Carrier, Carrier's insurer(s), and anyone claiming by, through, or under Carrier shall have no claim, right of action, or right of subrogation against Broker, its affiliates, or its shipper based on any loss or liability insured under the foregoing insurance. Carrier shall, prior to providing transportation and related services pursuant to this Agreement, name Broker as an additional insured on each of the foregoing insurance policies and shall cause its insurance Broker to issue a certificate to Broker, evidencing the foregoing coverage.
6.2 Additional Terms.
Carrier represents and warrants that it will continuously fulfill the requirements of this Section 6 throughout the duration of this Agreement. Broker shall be notified in writing by Carrier's insurance Broker at least thirty (30) days prior to any cancellation, change or non-renewal of any insurance policy(ies) required by this Agreement.
7.0 Carrier Moving Perishables.
Carrier warrants that Carrier will inspect or hire a service representative to inspect a vehicle's refrigeration or heating unit at least once each month. Carrier warrants that it shall maintain a record of each inspection of refrigeration or heating units and retain the records of the inspection for a least one year. Copies of these records shall be provided upon request to the Carrier's insurance Broker and Broker. Carrier warrants that it will maintain adequate fuel levels for the refrigeration or heating unit and assume full liability for claims and expenses incurred by the Broker or the shipper for failure to do so. Carrier shall provide its cargo insurance carrier with all records that relate to a loss and permit copies and abstracts to be made upon request.
8.0 Claims.
The following shall apply to all claims made by shipper:
(a) All claims shall be subject to the terms and conditions of the uniform straight bill of lading, and those standard claims provisions pursuant to 49 C.F.R. §370;
(b) All claims shall be valued at the destination market value for lost or damaged cargo, where applicable;
(c) No claim shall include special or consequential damages unless specifically agreed to by shipper and Carrier by written agreement;
(d) All claims shall be filed with Carrier by shipper;
(e) Claims notification procedures shall be followed in accordance with procedure described in 49 C.F.R. 370.
9.0 Shipping Document Execution.
Carrier shall be named on the bill of lading as the “carrier of record.” Broker shall be shown as the third-party payer of all freight charges. It is understood that at no time shall Broker have (a) physical control, custody, possession; or (b) physical or financial responsibility for the freight listed upon the bill of lading before, during or after transport.
10.0 Indemnification.
CARRIER HEREBY AGREES TO INDEMNIFY, DEFEND AND HOLD HARMLESS BROKER, ITS MEMBERS, MANAGERS, OFFICERS, EMPLOYEES, AFFILIATES, SUBSIDIARIES, AND ITS CUSTOMERS (AS INTENDED THIRD-PARTY BENEFICIARIES) FROM ANY AND AGAINST ALL LOSSES (AS DEFINED BELOW) ARISING OUT OF OR IN CONNECTION WITH THE TRANSPORTATION SERVICES PROVIDED UNDER THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, THE LOADING, UNLOADING, HANDLING, TRANSPORTATION, POSSESSION, CUSTODY, USE, OR MAINTENANCE OF ANY AND ALL CARGO OR EQUIPMENT, OR PERFORMANCE OR NON-PERFORMANCE OF THIS AGREEMENT (INCLUDING BREACH HEREOF) BY CARRIER OR ANY CARRIER REPRESENTATIVE. CARRIER'S OBLIGATION TO INDEMNIFY AND DEFEND SHALL NOT BE AFFECTED BY ALLEGED NEGLIGENCE OR WILLFUL MISCONDUCT OF BROKER, ITS MEMBERS, MANAGERS, OFFICERS, EMPLOYEES, AFFILIATES, SUBSIDIARIES, AND ITS CUSTOMERS. IT IS THE INTENT OF THE PARTIES THAT THIS PROVISION BE CONSTRUED TO PROVIDE INDEMNIFICATION TO BROKER, ITS MEMBERS, MANAGERS, OFFICERS, EMPLOYEES, AFFILIATES, SUBSIDIARIES, AND ITS CUSTOMERS TO THE MAXIMUM EXTENT PERMITTED BY LAW. IF THIS PROVISION IS FOUND IN ANY WAY TO BE OVERBROAD, IT IS THE PARTIES’ INTENT THAT THIS PROVISION BE ENFORCED TO ALLOW INDEMNIFICATION TO THE MAXIMUM EXTENT LEGALLY PERMISSIBLE. “Losses” shall mean any and all losses, liabilities, obligations, personal injury, bodily injury, property damage, loss or theft of property, damages, penalties, actions, causes of action, claims, suits, demands, costs and expenses of any nature whatsoever, including reasonable attorneys’ and paralegals’ fees and other costs of defense, investigation and settlement, costs of containment, cleanup and remediation of spills, releases or other environmental contamination and costs of enforcement of indemnity obligations.
11.0 Carrier’s Cargo Liability.
to delivery by Carrier and acceptance by end receiver, shall be conclusively presumed to have been lost, damaged or destroyed by Carrier unless Carrier can establish otherwise by clear and convincing evidence. Carrier shall either pay Broker directly, or allow Broker to deduct from the amount Broker owes Carrier, the shipper’s full actual loss, or the amount determined by Broker and Carrier to be Carrier’s responsibility. Broker shall deduct from the amount Broker otherwise owes Carrier the shipper’s full actual loss, as determined by Broker, of all claims that are not resolved within ninety (90) days of the date of the claim. Carrier agrees to indemnify Broker for any payments made hereunder. In the event of an accident, Carrier shall notify Broker immediately for further instructions.
12.0 Salvage Claims.
Carrier shall waive any and all right of salvage or resale of any of shipper’s damaged goods and shall, at Broker’s reasonable request and direction, promptly return or dispose of, at Carrier’s cost, any and all of Customer’s damaged goods shipped by Carrier under a Transportation Schedule. Salvage responsibility and burden of proof rests with Carrier and its insurer. Carrier shall not under any circumstance allow shipper’s goods to be sold or made available for sale or otherwise disposed of in any salvage markets, employee stores, or any other secondary outlets. In the event that damaged goods are returned to shipper and salvaged by shipper, Carrier may receive a credit for the actual salvage value of such goods.
13.0 Offset.
Broker may deduct from Carrier’s compensation any amounts payable to Carrier by Broker including, without limitation, any amounts owing or damages for violations of this Agreement.
14.0 Term.
This Agreement shall be effective from the Effective Date indicated above and shall continue in full force and effect until terminated by either Party. Any termination of this Agreement shall not terminate the restrictive covenants appearing in Section 15 below. On termination of this Agreement, all rights and obligations of the Parties under this Agreement shall be extinguished, except rights and obligations that shall have accrued prior to the effective date of termination and those surviving termination as otherwise provided in this Agreement. Neither Party shall be liable to the other because of such termination for compensation, reimbursement or damages on account of the loss of any prospective profits or anticipated sales, or on account of expenditures, investment, leases or commitments in connection with the business or good will of the non-terminating Party, or for any other reason whatsoever growing out of such termination; however, nothing in this Section 14.0 shall be construed as a release of any obligation that shall have accrued prior to the effective date of termination and that is preserved pursuant to this Agreement.
15.0 Acknowledgments.
This Agreement shall constitute the final and entire agreement and understanding between the Parties and a complete and exclusive statement of agreement with respect of and relating to the subject matter hereof and thereof, and cancels and supersedes any and all prior agreements, negotiations, understandings or arrangements, if any, whether written or oral, between the Parties to this Agreement. Each Party acknowledges that no representation or statement, no prior course of dealings, no usage of trade, and no understanding, agreement, warranty or restriction has been made or exists between the Parties other than those set forth, referenced, or provided for herein, and that in entering into this Agreement the Party has not relied on anything done or said or on any presumption in fact or in law: (1) with respect to this Agreement or any Exhibit or to the duration, termination or renewal of this Agreement, or with respect to the relationship between the Parties other than as expressly set forth in this Agreement; or (2) that in any way tends to supplement, explain, vary, change or modify the terms, or any of them, of this Agreement or to prevent this Agreement from becoming effective; or (3) that in any way affects or relates to the subject matter hereof or thereof. Acceptance of, or acquiescence in, a course of performance rendered under this or any prior agreement shall not be relevant or admissible to determine the meaning of this Agreement even though the accepting or acquiescing Party has knowledge of the nature of the performance and an opportunity to make objection. The Parties also acknowledge that the terms and conditions of this Agreement are reasonable and fair and equitable and have been negotiated by the Parties in arms length negotiations.
16.0 Assignment.
The rights and obligations of Carrier under this Agreement are personal to Carrier, and neither this Agreement nor any right under this Agreement nor interest in this Agreement may be sub-contracted, delegated, transferred or assigned by Carrier to any other person, firm, corporation, or other entity without the prior express written approval of Broker, which consent may be withheld by Broker in its absolute discretion. Broker may assign or delegate any of its rights or duties hereunder to any party. In the event of a merger or consolidation of Broker or a sale of all or substantially all of its business or assets, Carrier consents to enforcement of this Agreement against Carrier by the successor entity and/or purchasing entity; an express assignment shall not be necessary for such entities to do so.
17.0 No Implied Waivers.
Except as expressly provided in this Agreement, waiver by either Party, or failure by either Party to claim a breach, of any provision of or right under this Agreement shall not be, or held to be, or construed to be a waiver of any breach or subsequent breach, or as affecting in any way the effectiveness of such provision, or as a waiver of any other right under this Agreement.
18.0 Governing Law.
The validity, interpretation, formation, construction, performance, effect and enforcement of this Agreement shall be exclusively governed by and construed in accordance with the laws of the United States and the State of Alabama without regard to its conflict of law provisions or the conflict of law provisions of any other jurisdiction. Broker’s principal place of business is located in Jefferson County in the State of Alabama, and the Parties agree that this constitutes sufficient minimum contacts for the purpose of conferring jurisdiction upon the federal and state courts presiding in such County and State. The Parties specifically consent that any legal action or proceeding arising hereunder shall be brought exclusively in the Circuit Court of Jefferson County, Alabama, or the United States District Court of the Northern District of Alabama, and assent and submit to the personal jurisdiction of any such court in any action or proceeding relating to, involving or arising out of this Agreement. The Parties hereby waive any jurisdictional, venue or forum defenses available to them, including but not limited to the defense of inconvenient forum, and further consent to personal jurisdiction and service of process by registered mail or personal service within or without Alabama in accordance with applicable law, provided a reasonable time for appearance is allowed.
19.0 Amendment.
Any change, modification or amendment of this Agreement or additional obligation assumed by either Party in connection with this Agreement shall be binding only if evidenced in a writing signed by each Party or an authorized representative of each Party.
20.0 Third-Party Beneficiary.
The shipper shall be an intended third-party beneficiary of this Agreement.
Carrier
BROKER:
STAMPS TRANSPORT, LLC
By
__________________________
(Broker Signature)
By
By
John T. Stamps (Printed Name)
Owner
Position
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