TRANSPORTATION CARRIER-- BROKERAGE AGREEMENT
THIS TRANSPORTATION BROKERAGE AGREEMENT, including Appendix A (together, the “Agreement”), is made on this day referred to in the digital time stamp of the submission of this document, by and between Carrier named in profile section, referred to as “CARRIER”, on the one hand, and on the other, Pack Logistics, LLC referred to as “BROKER.”
Whereas, BROKER is licensed as a property broker by the Federal Motor Carrier Safety Administration (“FMCSA”) (MC- 280243 ), and as a licensed broker arranges for motor carrier freight transportation under its contracts with consignors and consignees (“Customers”); and
Whereas, CARRIER is registered with the FMCSA as a motor contract carrier in interstate, intrastate, and/or foreign commerce and is in all respects qualified to transport freight as required by BROKER; and
Whereas, BROKER, to satisfy some of its Customer’s transportation needs, intends to engage CARRIER to perform transportation within the limits of CARRIER’s contract operating authority and according to this Agreement’s terms and conditions, and CARRIER intends to perform such transportation.;
Now, therefore, intending to be legally bound, the parties agree as follows.
1. This Agreement’s term shall be one year subject to earlier termination at any time, with or without cause, by either party giving thirty days written notice to the other. Absent such notice, it shall automatically renew for successive one-year periods.
2. CARRIER warrants that it is legally qualified to perform the transportation services contemplated hereby. CARRIER further warrants that it has a “satisfactory” safety rating from FMCSA. In the event CARRIER does not have a satisfactory rating, it may not provide the transportation services contemplated hereby unless it has a “conditional” safety rating from the FMCSA and BROKER has acknowledged, in writing, the existence of the conditional safety rating and authorized the CARRIER to provide services contemplated herein. CARRIER further warrants that all equipment and personnel used in providing the services contemplated herein shall meet all requirements of, and be in compliance with all laws and regulations of, the United States Department of Transportation as well as all states and provinces in which these services are to be provided. CARRIER further warrants that it will immediately provide BROKER with notice, in writing, of any change in its safety rating from that represented and warranted in accordance with this paragraph and provide BROKER copies of any FMCSA Notice of Charges or Notice of Claim related to any change in safety rating.
3. There is no minimum volume of freight contemplated by this Agreement. BROKER is not restricted against tendering freight to other carriers; CARRIER is not restricted against performing transportation for third parties.
4. CARRIER shall transport BROKER’s shipments without delay. CARRIER shall immediately notify BROKER of any likelihood of delay. CARRIER will immediately notify BROKER of any incident or circumstance that will prevent or delay delivery to the consignee.
5. CARRIER shall obtain from the consignee a complete, signed delivery receipt for each shipment, and shall notify BROKER immediately of any exception on any document. CARRIER shall send BROKER delivery receipts and bills of lading as soon as possible but in no case more than five (5) days after delivery.
6. If BROKER requests CARRIER to transport any shipment required to be placarded under DOT rules as a hazardous material, the additional provisions in Appendix A, including additional insurance requirements, shall apply for each such shipment.
7. Each shipment hereunder shall be evidenced by a Uniform (Straight) Bill of Lading containing terms and conditions no less favorable to the Customer or beneficial owner of the cargo than those contained in the form of Uniform Straight Bill of Lading published as of the time of shipment in the National Motor Freight Classification (“N.M.F.C.”) and naming CARRIER as the transporting carrier. CARRIER’s drivers shall be instructed to sign their company’s name and record the seal number on every Bill of Lading evidencing a shipment under this Agreement. Under no circumstances shall CARRIER prepare a freight document which lists BROKER as “Carrier” or “Shipper.” Documents for each of BROKER’s shipments shall name BROKER as “broker” and CARRIER as “carrier.” If there is a wrongly worded document, the parties will treat it as if it showed BROKER as “broker” and CARRIER as “carrier.” If there is a conflict between this Agreement and any transportation document related to any shipment, this Agreement shall govern. Under no circumstances shall CARRIER prepare or accept a shipment for which the shipping documents, including the bill of lading, show BROKER as either CARRIER or SHIPPER. CARRIER agrees to indemnify and hold BROKER harmless from any direct, indirect and/or consequential loss, damage, fine, expense, including reasonable attorneys’ fees, arising from any errors in the bill of lading, including by way of illustration without limitation, the showing of BROKER as CARRIER or SHIPPER.
8. CARRIER shall be wholly responsible for performing the contemplated transportation and for all costs and expenses of such transportation, including as examples, costs and expenses of all CARRIER’s transportation equipment, its maintenance, and those persons who operate it. As to BROKER, CARRIER is an independent contractor, and as such is wholly responsible in every way for such persons as CARRIER hires or employs. CARRIER shall, at its sole cost and expense, (a) furnish all equipment necessary or required for the performance of its obligations hereunder (the “Equipment”); (b) pay all expenses related, in any way, with the use and operation of the Equipment; (c) maintain the Equipment in good repair, mechanical condition and appearance; and (d) utilize only competent, able and legally licensed personnel.
9. CARRIER shall defend, indemnify, and hold BROKER harmless from and against all loss, liability, damage, claim, fine, cost or expense, including reasonable attorney’s fees, arising out of or in any way related to, CARRIER’s performance of the contemplated transportation or CARRIER’s breach of any terms of this Agreement.
10. During this Agreement’s term, CARRIER shall procure and maintain, at its sole expense, the following insurance from Insurer(s) whose most recent and current rating by A.M. Best is a A-6 or better and who are licensed to do business in each state in which CARRIER performs under this Agreement:
(a) Commercial Automobile Liability Insurance, with a combined single limit of not less than $1million ($US) each occurrence, covering all vehicles however owned, and/or used by CARRIER to transport BROKER’s shipments, including coverage for all liabilities for personal injury (including death) and property damage arising out of CARRIER’s transportation under this Agreement.
(b) Subject to Subsection 10(c) of this Agreement, All Risk Broad Form Motor Truck Cargo Legal Liability insurance in the form of a B.M.C. 32 Endorsement for Motor Carrier Policies of Insurance for Cargo Liability under 49 U.S.C. § 13906, in an amount not less than $250.000 ($US) per occurrence. Unless approved in advance by BROKER, the coverage provided under the cargo policy shall have no exclusions or restrictions of any type that would foreseeably preclude coverage, or reduce coverage amount, relating to a cargo loss, damage or delay claim.
In the event that a cargo loss, damage, or delay claim, or any portion thereof, is excluded from coverage under BROKER’s contingent cargo program for any reason, CARRIER shall assume complete sole liability and responsibility for all such uninsured loss and shall indemnify, defend and hold BROKER harmless for any loss, damage or delay claim asserted against BROKER. CARRIER recognizes and agrees that BROKER is not selling or soliciting insurance, and the contingent cargo coverage provided through BROKER is subject to all of the terms, conditions and exclusions of the actual policy issued by the insurance underwriter. Upon written request, BROKER shall furnish to CARRIER a copy of the certificate of insurance.
(c) BROKER, its affiliates and subsidiaries shall be named as an additional insured or, in BROKER’s sole discretion, a loss payee or a certificate holder, in the insurance coverages to be maintained by CARRIER under this Agreement. CARRIER shall furnish to BROKER, prior to accepting any shipment for transportation under this Agreement, a written certificate obtained from the insurance carriers showing that such insurance has been procured, is being properly maintained, the expiration date, and specifying that written notice of cancellation or modification of the policy shall be given to BROKER at least thirty (30) days prior to such cancellation or modification. CARRIER will also provide to BROKER a complete copy of the applicable policies.
11. In the event of loss, damage or delay in delivery, CARRIER shall be liable for damage arising therefrom in accordance with the provisions of this paragraph. The loss, damage or injury shall be measured as the lesser of the actual replacement cost or the cost of repair, subject to a maximum of $1 million ($US) per shipment. CARRIER shall deduct from the amount of the claim the reasonable salvage value of the damaged commodities. In addition, CARRIER shall indemnify BROKER for all indirect, special or consequential damages, or other special economic losses, including attorney’s fees,that might be recovered against BROKER on any Customer’s claim. CARRIER shall promptly pay BROKER for losses to cargo transported in accordance herewith, including losses arising from delayed delivery and losses or other items of expense covered by any indemnity herein. In addition, CARRIER authorizes BROKER to deduct from any amounts owed to CARRIER by BROKER any such items of loss described in the preceding sentence.
(a) CARRIER’s liability is for the full policy limits of its insurance in subsection 10(b), on a per motor vehicle, or trailer, or container basis, regardless of any policy limitation or applicability, plus the limits of the insurance provided by BROKER, if any, in subsection 10(c). In addition, for any claim arising from any reckless, dishonest, or illegal acts of CARRIER’s employee or agent, or claim arising from CARRIER furnishing contaminated Equipment, CARRIER shall be solely liable and responsible for such claim.
(b) CARRIER shall not accept any shipment with a declared or actual value of greater than $1 Million ($US) unless and until CARRIER has informed BROKER of the value of the shipment and has received written authorization from BROKER to accept the shipment and complies with any instructions received from BROKER with respect to that shipment.
(c) For any freight claim, CARRIER shall pay BROKER within thirty days of CARRIER having been notified of the amount of the claim and provided documentation substantiating the claim.
12. CARRIER shall not withhold any freight due to any dispute with BROKER regarding freight charges. CARRIER waives and releases all liens which it might otherwise have to any freight in its possession
13. BROKER and CARRIER agree that the rates and charges for the contemplated transportation shall be only those on the individual Rate Confirmation Sheets signed by each of them prior to each shipment. BROKER will pay CARRIER the agreed amount within thirty days of BROKER’s receipt of CARRIER’s freight bill, bill of lading, clear delivery receipt, and any other documents necessary to enable BROKER to ascertain transportation has been properly provided. CARRIER agrees BROKER, at its option, may offset against any payments owed to CARRIER amounts CARRIER owes BROKER under this Agreement. In the event service is provided and it is subsequently discovered that there was no applicable rate in the existing schedule of rates or supplements, the parties agree that the rate paid by BROKER and collected by CARRIER shall be the agreed upon contract rate. CARRIER agrees that BROKER has the exclusive right to handle all billing of freight charges to the Customer for the transportation services provided herein, and, as such, CARRIER agrees to refrain and shall refrain from all collection efforts against the shipper, receiver, consignor, consignee, the freight or the Customer.
14. CARRIER shall transport all freight tendered by BROKER only on Equipment operated under CARRIER’s authority. CARRIER shall not in any way trip-lease, sub-contract, broker, or arrange for the freight to be transported by a third party without BROKER’s prior written consent.
15. CARRIER agrees that in all cases where controversy arises with a shipper or consignee, or their authorized representative, relating to the responsibility for any loss or damage, that CARRIER will accept any and all determinations and settlements made by BROKER.
16. It is expressly understood and agreed that CARRIER is an independent contractor for the services provided pursuant to this Agreement, and that CARRIER agrees to defend, indemnify and hold BROKER harmless for any claims, suits, or actions, including reasonable attorney’s fees in protecting BROKER’s interests, brought by employees, any union, the public, or state, provincial or federal agencies arising out of the operations of CARRIER under this Agreement. In this regard, CARRIER hereby assumes full control and responsibility for all hours scheduled and worked, wages, salaries, workers’ compensation and unemployment insurance, state and federal taxes, fringe benefits, and all other costs relating to its operations pursuant to this Agreement.
17. This Agreement is the entire agreement between the parties, superceding all earlier agreements and all tariffs, rates, classifications and schedules published, filed or otherwise maintained by CARRIER. It cannot be altered or amended except in a writing signed by all parties executing this Agreement. This Agreement may not be assigned or transferred in whole or in part.
18. If the operation of any part of this Agreement results in a violation of any law, such part shall be severed and the Agreement’s remaining provisions shall continue in full force and effect.
19. CARRIER and BROKER expressly waive all rights and remedies allowed under 49 U.S.C. §14101, to the extent they conflict with this Agreement. BROKER’s failure to insist upon CARRIER’s performance under this Agreement or to exercise any right or privilege shall not be a waiver of any BROKER’s rights or privileges.
20. All questions concerning the construction, interpretation, validity and enforceability of this Agreement shall be governed by and construed and enforced in accordance with the domestic laws of the State of Georgia, without giving effect to any choice or conflict of law provision or rule (whether in the State of Georgia or any other jurisdiction) that would cause the laws of any jurisdiction other than the State of Georgia to apply.
21. Each of the parties executing this Agreement irrevocably and unconditionally submits, for itself, and for its assigns, to the exclusive jurisdiction of any Georgia state court or any federal court of the United States sitting in the State and City of Albany, Georgia, and any appellate court thereof, in any suit, action or proceeding arising out of or relating to this Agreement or for recognition or enforcement of any judgment, and each of the parties executing this Agreement irrevocably and unconditionally agrees that all claims in respect of any such suit, action or proceeding shall be heard and determined in any such Georgia state court or, to the extent permitted by law, in such relevant federal court. Each of the parties executing this Agreement agrees that a final judgment in any such suit, action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
Each of the parties executing this Agreement irrevocably and unconditionally waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to the laying of venue of any such suit, action or proceeding arising out of or relating to this Agreement in any Georgia state court or in any federal court sitting in the State and City of Albany, Georgia. Each of the parties executing this Agreement further irrevocably and unconditionally waives any claim or defense that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum.
22. Notices shall be sent by registered mail, return receipt requested, to each party executing this Agreement at the address shown below, or to such other addresses as shall have been designated in a written notice pursuant to this section.
23. CARRIER acknowledges and agrees that it will not drop a trailer other than at the designated business facilities of consignee or at a location designated by BROKER. CARRIER further agrees that, in the event it drops a trailer other than as provided herein, and that there is a loss of or damage to the cargo as a result, then the CARRIER will indemnify BROKER and the Customer for any such loss or damage, including reasonable attorneys’ fees.
24. Whenever a shipper or a consignee requires that CARRIER or its agents, employees or drivers be assisted in the loading or unloading of property transported on behalf of BROKER, BROKER shall pass through to CARRIER any compensation it receives from such shipper or consignee for any costs associated with such requirement. Otherwise, CARRIER shall be responsible for the loading or unloading of such property at CARRIER’s expense. Further, detention charges that are collected by BROKER shall be directly paid to CARRIER. BROKER is entitled to all other accessorial charges.
25. This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed to be an original and all of which counterparts taken together shall constitute but one and the same instrument. In proving this Agreement in any judicial proceeding, it shall not be necessary to produce or account for more than one such counterpart signed by the party against whom such enforcement is sought. Any signature delivered by a party by facsimile transmission shall be deemed to be an original signature hereto.
26. CARRIER acknowledges that each entity appearing on the consolidated signature page to this Agreement is a separate and distinct corporate entity and that the use of this form of agreement for independent transactions by any of the entities named on the consolidated signature page is merely a convenience for the applicable BROKER party to this Agreement. This Agreement is only enforceable as between CARRIER and the party executing and delivering this Agreement as indicated below.
In Witness Whereof, the parties hereto have caused this Agreement to be executed in their respective names by their duly authorized representatives as of the date first above written.
Pack Logistics, LLC
By (Authorized Agent or Attorney-in-fact: Allen Dalton
Address: 2775 Ellenton Norman Park Rd., Norman Park, GA 31771
EXTRA REQUIREMENTS FOR HAZARDOUS MATERIALS SHIPMENTS
For any shipment arranged by BROKER to be transported by CARRIER involving transportation of hazardous materials or waste requiring vehicle placarding under 49 CFR Part 172, or any amendment, revision or other applicable regulation, the parties agree the following provisions shall apply, in addition to provisions in the Transportation Brokerage Agreement, to which this Appendix is attached:
1. CARRIER also represents and warrants it holds all Federal and/or state permits and registrations necessary to transport the hazardous materials or waste, including a “Satisfactory” safety rating by FMCSA, and CARRIER shall provide BROKER copies of all appropriate documents upon BROKER’s request.
2. CARRIER shall immediately notify BROKER of (a) any revocation or suspension of the permits and registrations in ¶(1) and (b) any change in CARRIER’s “satisfactory” USDOT safety rating. CARRIER acknowledges a “satisfactory” USDOT safety rating is a prerequisite to transporting hazardous materials or waste under this Agreement.
3. CARRIER also represents and warrants all CARRIER’s drivers transporting hazardous materials or waste (a) are properly trained under Federal and state laws, including, as example, 49 CFR §§172.700 and 177.800, and (b) have the proper endorsements on their Commercial Driver's License to transport such shipments.
4. CARRIER shall comply with all Federal, state, and local laws regarding the transportation of hazardous materials or waste.
5. If CARRIER is requested to transport hazardous materials or waste for which CARRIER must maintain $5 million ($US) liability coverage under 49 CFR §387.9, CARRIER shall procure and maintain, at its sole expense, public liability and property damage insurance from a reputable and financially responsible insurance company authorized to do business in all states in which the goods will move and whose most current rating by A.M. Best is a B+ or better insuring CARRIER for at least $5 million ($US) per occurrence. Such insurance shall name CARRIER and BROKER as insureds for any and all liabilities for personal injuries (including death) and property damage, including environmental damage due to the release of a hazardous substance, arising out of or in any way related to CARRIER’s transportation.
6. By signing below CARRIER specifically acknowledges that this Appendix A is a part of the Transportation Brokerage Agreement to which it is attached and is fully enforceable against CARRIER according to its terms.