This Agreement made and entered into this 20th day of November, 2020 by and between the below Carrier and Contractor.
Carrier Contractor
Name: LTD Trucking LLC Name
Address: 6605 Longshore St. (Suite 240-153) Address
Dublin, Ohio 43017
USDOT No. 24596594
MC-011886
Terms & Conditions
Carrier is an interstate and/or an intrastate for hire carrier operating under authority issued to it by the Federal Motor Carrier Safety Administration, or similar state agency, if operating authority is required, and/or an exempt carrier. Carrier desires to obtain transportation services from Contractor through this Agreement.
Contractor is the owner of, or lessee of, certain motor vehicle equipment, which is described in the attached Appendix A, hereinafter designated as Equipment, and is engaged in the business of transporting shipments by motor vehicles with qualified drivers pursuant to contracts with carriers and others.
Carrier desires to enter into agreement with Contractor for the transportation of periodic shipments and Contractor desires to enter into agreement with Carrier for the transportation of such shipments.
Carrier and Contractor deem it essential to their respective interests to establish and maintain an Independent Contractor relationship in the execution and performance of this Agreement.
In consideration of the promises and the mutual obligations of this Agreement, Carrier and Contractor agree as follows:
1. Term
This Agreement shall begin on the date first above written and shall remain in effect for a period of twelve months, terminating at midnight on the final day of the twelfth month, and shall renew from year to year until terminated. Either party may terminate this Agreement at any time by sending a written notice by certified mail or delivering to the other party at the address above. Termination shall be effective either 30 days after receipt of the notice of termination from the other party or at such later date as may be specified in said notice. However, termination of this Agreement by Contractor or Carrier shall not relieve either party from liability relating to prior or current shipments accepted by Contractor and Contractor shall be responsible for completion of all shipments accepted but not delivered at the time of termination. In the event of a material breach of this Agreement or violation of any law or regulation governing operations under this Agreement, Carrier may terminate this Agreement immediately by oral notice followed by written notice as specified above.
2. Independent Contractor
It is the intention of the parties, and acknowledged by the parties by signing this Agreement, that neither Contractor nor any of its drivers, helpers or other workers are to be servants or employees of Carrier for any purpose whatsoever. Contractor is responsible to Carrier only for providing transportation services pursuant to this Agreement and not as to the means and methods for providing such transportation services. Neither party shall have the right to bind the other by contract or otherwise, except as specifically stated in this Agreement.
3. Equipment
Contractor shall use Equipment, which Contractor warrants to be in good, safe and efficient operating condition, together with drivers, helpers and other workers and all other miscellaneous equipment Contractor deems necessary, to load, transport and unload shipments and otherwise provide transportation services for Carrier. Upon taking possession of the Equipment from Contractor, Carrier shall furnish to Contractor a receipt for Equipment, as set forth in Appendix B. Upon termination of this Agreement, Contractor shall execute a similar receipt for Equipment as the written receipt for the return of the Equipment by Carrier to Contractor as set forth in Appendix B; provided, however, that the Agreement and Carrier’s obligations there under shall expire upon the written notice of termination regardless of whether Contractor submits the receipt under this provision.
4. Contractor Responsibilities
Contractor shall determine the means and methods of the performance of all services undertaken by Contractor under the terms of this Agreement. Contractor shall cooperate with Carrier in achieving compliance with all applicable governmental laws and regulations and promptly shall file all log sheets, physical examination certificates and other reports, documents and data required by law to be maintained by Carrier. Contractor has and shall retain sole responsibility at Contractor’s expense for:
A. Hiring, wages, benefits, hours, working conditions, grievances, scheduling, supervising, training, disciplining and firing all drivers, helpers and other workers Contractor deems necessary for the performance of the obligations of Contractor under the terms of this Agreement, with such drivers, helpers and other workers being the employees of Contractor at all times and for all purposes.
B. Selecting, purchasing, leasing, financing and maintaining Equipment in accordance with applicable state and federal regulations.
C. Paying all operating and maintenance expenses incidental to the performance of this Agreement, including the costs of fuel, oil, lubricants and tires, including changing and repair, empty miles, permits of all types, tolls, ferries, detention and accessorial services, base plates and licenses and any unused portions of such items.
D. Safe and legal operation of all commercial motor vehicles.
E. Selecting all routes.
F. Loading and unloading of all freight whenever required by a consignee or consignor and securing all cargo whenever required.
G. Paying for public liability and property damage insurance on Equipment as required by the terms of this Agreement.
H. Reporting and paying for all taxes, including, but not limited to, road taxes, mileage taxes, fuel use taxes, gross revenue taxes and third structure taxes, and providing Carrier with written proof of same.
I. Unless indicated otherwise on Appendix F:
- Contractor will provide an IRP license plate for Equipment;
- Carrier shall supply an IFTA decal for the Equipment and shall report and pay all fuel taxes on a quarterly basis, for which Contractor shall reimburse Carrier; and
- Carrier shall provide NYHUT and KYU permits for the Equipment, as needed, and shall report and pay all NYHUT and KYU taxes on a quarterly basis and Contractor shall reimburse Carrier for all highway use taxes paid as a result of operation of the Equipment and shall provide Carrier with copies of all trip reports.
J. Paying all fines imposed for, and assuming all costs relating to, violations of any laws or regulations arising out of, or in connection with, the services rendered pursuant to this Agreement and indemnifying and holding Carrier harmless from the same. Notwithstanding the foregoing, except when the violation involves an interstate shipment and results from the acts or omissions of Contractor, Carrier shall assume the risks and costs of fines for overweight and oversize trailers when the trailers are preloaded, sealed or the shipment is containerized, or when the trailer or lading is otherwise outside of the control of Contractor and for improperly permitted over dimension and overweight shipments and shall reimburse Contractor for any fines, but not attorneys’ fees, paid by Contractor.
K. Acquiring and maintaining all insurance policies required by this Agreement.
L. Withholding all employment taxes due to federal, state or local governmental agencies on account of drivers, helpers and other workers necessary for the performance of the obligations of Contractor under the terms of this Agreement. Contractor shall hold harmless Carrier from any claims by drivers, helpers and other workers used by Contractor, and from any claims by federal, state or local governmental agencies relating to wages, work related accidents, workers' compensation claims, unemployment claims, withholding and employment taxes, or any other actions arising out of the relationship between Contractor and its employees. In order to fulfill its obligations under this numbered section, Contractor shall:
i. Maintain in force at all times all legally required workers' compensation or occupational accident insurance covering all owners, drivers, helpers and other workers used by it in the performance of this Agreement, and provide Carrier with valid certificates of coverage from the applicable workers' compensation agency or insurance carrier every 6 months evidencing such coverage.
ii. File all federal, state and local income, withholding, employment and highway use tax forms and returns, which it may be required by law to file, on account of itself and all drivers, helpers and other workers used by it in the performance of this Agreement, at the time and place which may be specified by the applicable federal, state and local laws, and to pay when due all taxes and contributions reported in such forms and returns.
iii. Furnish Carrier with such evidence of compliance with the foregoing as Carrier shall reasonably require.
M. Contractor shall provide and utilize electronic logging devices (ELD), when required by the FMCSRs, which are compliant with USDOT Safety Regulations and compatible with Carrier's fleet monitoring and tracking system, at Contractor's sole expense. At Contractor's option and expense, it may utilize a Carrier provided ELD, under the terms and conditions of Appendix F and any additional ELD addendum or appendix, which, separately executed, shall be incorporated into this Agreement.
N. Contractor and its employees and representatives shall exercise professional courtesy and act to assure continued satisfaction from all shippers, consignees, and consignors.
5. Safety.
Contractor shall comply with all federal and state laws which apply to Contractor’s services, including but not limited to the Federal Motor Carrier Safety Regulations (“FMCSRs”) and state traffic laws.
Contractor shall comply with all material safety regulations of Carrier. While operating under Carrier’s authority, for the purposes of compliance with the safety regulations of the FMCSRs, Carrier shall have exclusive possession, control, and use of the Equipment, and shall assume complete responsibility for the operation of the Equipment, during the term of this Agreement. An independent contractor relationship may exist when a carrier complies with 49 U.S.C. § 14102 and attendant administrative requirements and this subparagraph is set forth solely to conform with applicable regulations and shall not be used for any other purposes, including any attempt to classify Contractor as an employee of Carrier.
Contractor shall provide professional drivers who meet driver qualification standards of the Carrier’s insurer, and applicable law, including the FMSRs. Contractor’s drivers must authorize Carrier to obtain prior employer history, required by 49 C.F.R. § 391.23, an annual driving record, and a PSP report. Carrier reserves the right to disqualify any driver provided by Contractor who is rejected by Carrier’s insurance, who would increase the cost of Carrier’s insurance, or if Carrier finds the driver to be unsafe or unqualified.
Contractor’s drivers must comply with all DOT required drug and alcohol testing, including a clean test prior to operating a commercial motor vehicle for Carrier, and random testing as required by the FMCSRs.
6. Carrier Responsibilities
Carrier shall provide to Contractor all identification required by any governmental agencies to be affixed to Equipment. To the extent required by applicable state or federal regulations, Carrier shall have possession, use and control of Equipment; however, Contractor exclusively shall determine the manner and means of performance of all obligations undertaken by Contractor pursuant to this Agreement. If Carrier receives a refund or credit for a base plate purchased by Contractor from and issued in the name of Carrier or if such base plate is authorized by Contractor to be resold by Carrier to another contractor, Carrier shall refund to Contractor a prorated share of the amount once received by Carrier.
7. Compensation, Settlements, and Deductions
Contractor may transport such shipments as may be made available by Carrier from time to time. Contractor may decline to transport any shipments offered by Carrier. Carrier shall pay Contractor for the transportation services rendered based upon the rates and/or formulas provided in the attached Appendix C. Appendix C may be amended, from time to time, by written agreement of the Carrier and Contractor. Payments by Carrier to Contractor for services rendered pursuant to this Agreement shall be made within 15 days after submission by Contractor of driver logbooks and any other documents necessary for Carrier to secure full payment from shipper. Contractor shall also promptly provide to Carrier the following items regarding the shipment are in possession of Contractor: driver logs, bills of lading, shipping orders, delivery receipts, trip manifests, detention reports, mileage reports, toll receipts, fuel receipts and any other documents necessary for Carrier to secure full payment from shipper.
If the compensation of Contractor under this Agreement is based upon a percentage of the gross revenues for the shipments transported on Equipment, Carrier shall give to Contractor before or at the time of settlement a copy of the rated freight bill or a computer generated document containing the same information, subject to the right of Carrier to delete information identifying shippers, consignees, confidential information, and trade secrets (“Redacted Information”). Contractor shall have the right to examine copies of the pertinent portions of documents from which freight rates and charges are computed, subject to the right of Carrier to delete Redacted Information.
At the time of settlement, Carrier may deduct or setoff from the compensation of Contractor any amounts paid by Carrier for any expenses which are the obligations of Contractor under this Agreement, including those specified in Appendix C, Appendix D, Sections 4, 7, 9, 10, 11, 12, and 13, any advances made to Contractor by Carrier and such other amounts as are provided for elsewhere in this Agreement together with a recitation as to how the amounts have been computed. Carrier shall provide Contractor written itemization and documentation of all charge backs where such documentation is necessary to verify the validity of the charge.
Contractor is not required to purchase, rent, or lease any products, equipment or services from Carrier as a condition of entering into this Agreement. In the event Contractor elects to purchase lease or rent equipment from Carrier or from any third party, for which the purchase lease or rental contract gives Carrier the right to make deductions from Contractor’s settlement, then the parties mutually agree to attach and incorporate each such contract, specifying all terms thereof, to this Agreement as a separate addendum.
The parties agree that each settlement statement is conclusively presumed to be correct and final, if not disputed in writing by Contractor within 60 days of Carrier’s issuance of the settlement statement. Contractor may examine Carrier’s tariffs (or other contracts or documents, if any) from which rates and charges are computed, as well as documents underlying any computer-generated document, at Carrier’s headquarters during business hours. If rates and charges are computed from a contract, Carrier may examine only those portions of the contract containing the same information as would appear on a rated freight bill. Carrier may delete the names of shippers and consignees shown on that documentation. Nothing in this Agreement limits Carrier’s exclusive right to set the rates and amounts charged to Carrier’s Customer. All documents examined by Contractor under this section are designated Confidential Matters.
8. Escrow
Contractor shall be required to maintain an Escrow Account with Carrier in the amount specified in Appendix E, as Escrow Balance. The escrow account shall be funded by Contractor depositing the amount designated in Appendix E, as Escrow Deposit, or if no amount is listed there shall be no Escrow Deposit, with Carrier at the time of execution of this Agreement and the Settlement Escrow Contribution, as designated in Appendix E, to be withheld from each settlement until the escrow account reaches a balance of the Escrow Balance. At any time, the balance of the Escrow Account falls below the required amount, the Settlement Escrow Contribution shall be withheld from each Settlement until the Escrow Account balance has been replenished. The monies held in the Escrow Account may be deducted by Carrier to satisfy Contractor’s obligations under this Agreement including those specified in Section 4 and, Appendix C, Appendix D and Appendix F and to indemnify Carrier against any and all losses suffered because of breaches of the provisions of this Agreement, including those specified in Sections 4, 7, 9, 10, 11, 12, and 13. The Escrow Account also is to insure the return to Carrier of any identification and other Carrier Property in possession of Contractor upon termination of this Agreement. At the termination of this Agreement, Carrier shall make all proper deductions from said Escrow Account and make a final accounting to Contractor of all final deductions from said Escrow Account and return the balance of said Escrow Account to Contractor within 45 days from the date of termination of this Agreement. Carrier shall provide Contractor with an accounting of any transaction involving the Escrow Account by either clearly indicating in individual settlement sheets the amount and description of any deduction or addition made to the Escrow Account or providing a separate monthly accounting of any transaction involving the Escrow Account. Contractor may request an accounting of the Escrow Account, in writing. Carrier shall credit Contractor with interest on the escrow balance, less the average advances made, quarterly, at an interest rate equal to the average yield or equivalent coupon issue yield on 91 day, 13 week Treasury Bills, as established by the first weekly auction by the Department of Treasury occurring on or after the first day of the quarterly interest period.
9. Insurance
a. Carrier’s Insurance Responsibilities.
Carrier shall procure and maintain in full force and effect public liability, property damage, and cargo insurance coverage for protection of the public in at least the minimum amounts required by all applicable laws and regulations.
b. Contractor's Insurance Responsibilities.
Notwithstanding the provisions set forth in Section 9(a) above, during the term of this Agreement Contractor agrees to obtain, and keep in force at all times, at its sole cost and expense, the following insurance coverage’s:
i. Non-Trucking Liability.
Contractor shall procure, carry, and maintain public liability and property damage insurance which shall provide coverage to Contractor whenever the Equipment (as well as any Carrier trailer) is not being operated on behalf of Carrier (including, but not limited to, whenever the Equipment is being operated on behalf of others pursuant to a Trip Lease or whenever the Equipment is being operated on behalf of Contractor alone) in a combined single limit of not less than The Non-Trucking Liability Minimum Insurance Limits, specified in Appendix E, or if none is so specified one million dollars ($1,000,000.00), for injury or death to any person or for damages to property in any one occurrence. If Carrier offers to facilitate Non-Trucking Liability Insurance, and Contractor elects to obtain coverage independently, such coverage shall be no less comprehensive than the coverage Carrier offers to facilitate. In addition, such coverage shall be primary to any other insurance that may be available from Carrier. Contractor shall be responsible for all deductible amounts and for any loss or damage in excess of the policy limit. In addition, such coverage shall be primary to any other insurance that may be available through Carrier. Contractor shall be responsible for all deductible amounts and for any loss or damage in excess of the policy limit.
ii. Workers' Compensation/Occupational Accident Insurance.
Contractor shall maintain an insurance policy providing coverage for work-related injuries (including coverage for medical expenses and lost compensation) sustained by any of Contractor’s workers, including any owners who are not required by state law to be insured, that meets the requirements of applicable law. Contractor may satisfy this requirement by either (a) maintaining workers’ compensation coverage in the appropriate state(s) and other states coverage if applicable, or (b) if allowed by applicable law, maintaining a policy of occupational accident insurance. If Carrier offers to facilitate occupational accident coverage, and Contractor elects to obtain coverage independently, such coverage shall be no less comprehensive than the coverage Carrier offers to facilitate. Contractor shall provide Carrier with adequate evidence of coverage meeting the requirements in this Section.
iii. Passenger Insurance.
As required by 49 C.F.R. § 392.60, Contractor shall not allow any passengers to ride in the Equipment unless authorized in writing by Carrier. If Contractor wishes to carry passengers in the Equipment, Contract must obtain Carrier’s advance written authorization, and Contractor shall procure, carry, and maintain passenger liability insurance that shall provide coverage to Contractor whenever the Equipment is being operated (whether or not on behalf of Carrier) in a combined single limit of not less than the Passenger Insurance Minimum Limits, specified in Appendix E, or if none is so specified one million dollars ($1,000,000.00), for injury or death to any person riding as a passenger in the Equipment or for damages to that person's property in any one occurrence. If Carrier offers to facilitate Passenger Insurance, and Contractor elects to obtain coverage independently, such coverage shall be no less comprehensive than the coverage Carrier offers to facilitate. In addition, such coverage shall be primary to any other insurance that may be available from Carrier. Contractor shall be responsible for all deductible amounts and for any loss or damage in excess of the policy limit.
iv. Other Insurance.
In addition to the insurance coverage required under this Agreement, it is Contractor’s responsibility to procure, carry and maintain any fire, theft, uninsured and/or underinsured motorist, and physical damage (collision), or other insurance coverage that Contractor may desire for the Equipment or for Contractor's health care or other needs. Carrier has no responsibility to procure, carry, or maintain any insurance covering loss of or damage to Contractor’s Equipment, trailer, or other property. Contractor shall hold Carrier harmless with respect to loss of or damage to Contractor's Equipment, trailer, or other property, and Contractor acknowledges that Carrier may, and Contractor hereby authorizes Carrier to, waive and reject no-fault, uninsured, and underinsured motorist coverage from Carrier's insurance policies to the extent allowed under the law, and Contractor shall cooperate in the completion of all necessary documentation for such waiver, election, or rejection.
v. Insurance purchased from or through Carrier.
If set forth in Appendix G, Contractor may, if Contractor so chooses by initialing one or more boxes in the right-hand column of the "Certificate of Insurance" in Appendix G, coverages required or made optional by this Agreement. In any such case, Carrier shall deduct or otherwise recover amounts reflecting all of Carrier’s expense and cost in obtaining and administering the coverage. Contractor recognizes that Carrier is not in the business of selling insurance, and any insurance coverage requested by Contractor from Carrier is subject to all of the terms, conditions, and exclusions of the actual policy issued by the insurance underwriter. Carrier shall ensure that Contractor is provided with a certificate of insurance (as required by 49 C.F.R. § 376.12(j)(2)) for each insurance policy under which Contractor has authorized Carrier to facilitate insurance coverage from the insurance underwriter (each certificate to include the name of the insurer, the policy number, the effective dates of the policy, the amounts and types of coverage, the cost to Contractor for each type of coverage, and the deductible amount for each type of coverage for which Contractor may be liable), and Carrier shall provide Contractor with a copy of each policy upon request. Carrier is facilitating any insurance coverage for Contractor, the cost to Contractor for, or other details of a coverage changes from the information listed in the "Certificate of Insurance" attached as Appendix G.
10. Communications Equipment
Carrier may use a two-way communications system to communicate with drivers operating vehicles under this Agreement (hereinafter the "Communications Equipment"). In the event Carrier requires the use of Communications Equipment, Contractor may choose to obtain the equipment through the Carrier or from another vendor.
In the event Contractor elects to obtain the Communications Equipment through Carrier, Contractor agrees to have the unit installed in the Equipment and agrees to comply with the provisions of this Agreement with the understanding that the Communications Equipment is and shall remain the property of Carrier. Contractor shall cooperate, at Contractor's expense, with Carrier to install and train in the use of the Communications Equipment, to integrate with Carrier’s systems. Contractor shall pay a monthly fee as specified in Appendix F for each month or part thereof the Communications Equipment is in the Contractor's possession. Contractor authorizes Carrier to accrue and deduct said fee from Contractor's compensation otherwise due under this Agreement. Such accrual and deductions shall commence beginning with the settlement payment for the week during which installation occurs and shall end when the Communications Equipment is returned to Carrier regardless whether termination of this Agreement has occurred. The obligation to pay the monthly fee shall survive termination of this Agreement.
Contractor shall keep the Communications Equipment in good working order at all times while it is in the Contractor's possession and will immediately notify Carrier in the event that the Communications Equipment is destroyed or damaged. The breakage of any sealed portion of the Communications Equipment will be considered proof of tampering. In the event Contractor elects to obtain the Communications Equipment through Carrier, Contractor shall be responsible for the repair or replacement cost of the Communications Equipment in the event the Communications Equipment is destroyed or damaged by fire, windstorm, lightning, flood, vandalism, earthquake, collision, or theft but only to the extent of the Communications Equipment Replacement Cap, as specified in Appendix E, or if no amount is specified, $2,500.00, per Incident. In the event of an incident of damage or destruction determined to be due to negligence on the part of the Contractor or Contractor's driver, Contractor shall be responsible for the actual cost to repair or replace the unit.
In the event Contractor elects to obtain the Communications Equipment through Carrier and this Agreement is terminated for any reason, Contractor, at Contractor's expense, shall have the Communications Equipment removed by an authorized Communications Equipment dealer and shipped back to Carrier within five (5) days of termination. If the Communications Equipment is not received by Carrier in good working order, Contractor authorizes Carrier to deduct the cost of repair or replacement from Contractor's compensation otherwise due under this Agreement. In the event such amounts are insufficient to cover the cost of repair or replacement, Contractor agrees to pay the difference immediately upon request by Carrier Additionally, failure to return the Communications Equipment may, result in criminal prosecution.
11. Cargo Claims
Contractor shall be liable for and pay the first dollar losses, up to the Cargo Claim Cap, as specified in Appendix E, or if none is specified: $5,000.00, of any loss or damage caused to cargo or costs incurred due to cargo shifting or depalletization while under the control of Contractor, including unloading, loading, transportation, rework costs, cross dock costs and storage costs, except that contractor shall be fully liable for any theft or conversion of cargo by Contractor or its drivers, helpers or other workers and such amounts may, at the option of Carrier, be deducted from monies due Contractor under this Agreement.
12. Property Damage
Contractor shall be liable for and pay the first dollar losses, up to the Property Damage Cap, as specified in Appendix E, or if none is specified: $5,00.00, of each and every loss caused to any and all property, including, but not limited to, trailers or other equipment of Carrier or a consignor or a consignee which is caused, in whole or in part, by Contractor or its drivers, helpers, employees or sub-contractors and such amounts may, at the option of Carrier, be deducted from monies due Contractor under this Agreement.
13. Completing Delivery
If, in the opinion of Carrier, Contractor has breached this Agreement in such manner as to subject Carrier to liability to any consignor, consignee or governmental authority, Carrier may take possession of the shipment being transported by Contractor and complete the delivery. Contractor shall reimburse Carrier for, or at the option of Carrier, Carrier shall deduct from monies due Contractor under this Agreement, any costs, expenses or damages incurred by Carrier as a result of such taking possession of the shipment and completing the delivery, including, but not limited to, costs of handling and transferring the shipment, transportation expenses and damages paid to the consignor or consignee.
14. Covenant not to Compete
Contractor acknowledges that Contractor will have access to Carrier's rates, methods of operation and customer contacts that Carrier has put forth substantial effort and investment in order to develop its customer accounts and that Carrier has a protectable interest therein. As a material inducement for Carrier to enter into this Agreement and for other good and valuable consideration, the sufficiency of which hereby is acknowledged by Contractor, during the term of this Agreement, including any extensions, and for a period of two (2) years after termination of this Agreement, Contractor shall not solicit the freight of, provide transportation services to, arrange transportation services on behalf of or work for any other motor carrier, shippers' agent, shippers' association, freight forwarder or broker which transports freight on behalf of or arranges the transportation of freight for the account of any customer of Carrier for whom Contractor transports freight or performs other services pursuant to this Agreement. The parties recognize and acknowledge that damages resulting from breach by Contractor of this numbered section would be difficult, if not impossible, to ascertain, and therefore agree that Carrier shall be entitled to an injunction permanently enjoining any such breach, and furthermore, for the period of any such breach, Contractor shall pay to Carrier, as liquidated damages, a sum equal to twenty percent (20%) of the gross revenue received by Contractor from or relating to services performed in breach of this numbered section. In the event Carrier prevails in any suit, claim, counterclaim or proceeding brought or instituted by Carrier to enforce any of the provisions of this numbered section, Contractor agrees to pay Carrier all associated costs including Carrier's reasonable attorneys’ fees. This Section shall survive the termination of this Agreement.
15. Non-Disclosure
This Agreement shall be treated as a confidential document. Contractor shall not disclose or discuss the terms of this Agreement with any individual not a party to the Agreement or not representing Contractor in contractual discussions. Confidential documents shall also include all shipping papers, rate confirmations, bills of lading, customer invoices, contractor invoices, rates, customer lists, driver lists, and any document marked confidential by Carrier. Failure to maintain the confidentiality of any confidential document may result in immediate termination of this Agreement, injunctive relief, and any other legal relief available to Carrier.
16. Termination
Contractor shall remove and return all property of Carrier, including, but not limited to, truck door placards, Carrier identification, and any freight that belongs to Carrier, a consignee, or a consignor, (collectively “Carrier Property”) to Carrier within 23 hours of termination of this Agreement. Carrier shall have the right to repossess Carrier Property, if Contractor refuses to do so, including the right to peacefully enter the private property of Contractor for the purpose of repossession. Contractor shall hold Carrier harmless and shall indemnify Carrier against all claims that may arise as a result of the actions of Carrier in repossessing such property.
The Contractor’s final settlement shall not be paid until Carrier’s Identification has been removed, or a written certification of its removal has been received by Carrier. See 49 C.F.R. § 376.12(f).
The provisions identified in Section 16 shall survive termination of this Agreement.
17. Arbitration
Except for those claims Excluded Claims, as defined below, any claim, dispute or controversy arising, emanating or relating to this Agreement, including, but not limited to, interpretation, breach or the enforcement of any state or federal statutory and/or regulatory rights, shall be resolved on an individual basis exclusively between Carrier and Contractor by final and binding arbitration to be held in the county where the Carrier’s principal office is located, or an adjacent county, administered by the American Arbitration Association ("AAA") utilizing its commercial dispute resolution procedures as then enacted to the extent that such rules are not Inconsistent with the following subparts (a) through (d ). The arbitration proceeding shall be governed by the following rules:
(a) Written notice of a demand for arbitration must be mailed to the other party within ninety (90) days of the occurrence of the claimed breach or other event giving rise to the claim or controversy. Failure to mail written notice of a demand for arbitration within such ninety (90) day period shall constitute an absolute bar to the institution of any proceedings and a waiver of the claim;
(b) Prior to notifying the AAA and commencing arbitration, both parties shall make good faith efforts to negotiate a settlement of the claims for thirty (30) days (“Mediation Period”), between individual representatives with settlement authority over the claims.
(c) Upon completion of the Mediation Period, and not more than thirty (30) days after, the aggrieved party may mail its demand for arbitration to the AAA, to institute binding arbitration. Failure to timely mail this demand shall constitute an absolute bar to the institution of any proceedings and a waiver of the claim;
(d) The demand for arbitration shall identify the provision or provisions of this Agreement alleged to have been breached and shall state the issue proposed to be submitted to arbitration and the remedy sought. The copy of the demand shall be sent to American Arbitration Association, Case Filing Services, 1101 Laurel Oak Road, Suite 100 Voorhees, NJ 08043, with a request that the demand be forwarded to the appropriate AAA Regional Office;
(e) As to any dispute or controversy which under the terms of this Agreement is a proper subject for arbitration, no suit at law or in equity based on such dispute or controversy shall be instituted by either party other than a suit to conform, enforce, vacate, modify or correct the award of the arbitrator(s) as provided by law; provided, however, that this clause shall not limit Carrier's right to obtain any provisional remedy, including, without limitation, injunctive relief, writ for recovery of possession or similar relief from any court of competent jurisdiction, as may be necessary in Carrier’s sole subjective judgment to protect its property rights;
(f) The discovery process related to the arbitration proceeding shall comply with the Ohio Rules of Civil Procedure;
(g) The arbitration proceeding shall be governed by AAA's Commercial Arbitration Rules to extent such Rules are not Inconsistent with the immediately preceding subparts (a)-(f); and
Any award rendered arising out of such arbitration shall be final and binding upon the parties hereto. Judgment on an award rendered by AAA may be entered in any court having proper jurisdiction.
Excluded Claims, which are not subject to the mandatory binding arbitration in this section, are narrowly defined as the following claims: (a) either party’s claims against the other in connection with bodily injury, vehicle damage, or freight damage, (b) Carrier’s claims against Contractor for collection or payment of escrow or settlement deductions authorized by this Agreement, and (c) Carrier’s claims for injunctive relief.
18. Class Action Waiver
Contractor and Carrier agree that under no circumstances, whether in arbitration or otherwise, may Contractor bring any claim against Carrier, or allow any claim that Contractor may have against Carrier to be asserted, as part of a class action, on a consolidated or representative basis, or otherwise aggregated with claims brought by, or on behalf of, any other entity or person, including other Contractors of Carrier.
19. Indemnification
Contractor agrees to defend, indemnify, and hold harmless Carrier (and its affiliates, subsidiaries, officers, agents and employees), to the extent not in conflict with other provisions of this Agreement or applicable law, from any direct, indirect, or consequential loss, damage, delay, fine, civil penalty, action, claim for injury or death to persons (whether employees or agents of Carrier or third-parties), damage to property, environmental response or restoration expense, cargo loss or damage, loss of or damage to trailers or other real or personal property, any other expense incurred by Carrier, including reasonable attorneys’ fees, investigation costs, and costs of litigation, arising out of or relating to any of Contractor’s negligence, gross negligence, willful misconduct or material breach of this Agreement, whether by an employee or agent of Contractor, or other culpable acts or omissions of Contractor (“Carrier Damages”). Contractor authorizes Carrier to deduct or otherwise recover any amounts due to Carrier as Carrier Damages.
20. Notices
Any notices and demands, including amendments to this Agreement, shall be deemed delivered if sent by any of the following methods: (a) Qualcomm communication, or other similar device and system, effective upon sending, (b) personal delivery, effective upon delivery, (c) overnight courier to Contractor’s last known address, effective the day after sending, or (d) U.S. mail, certified, return receipt, to Contractor’s last known address, effective 3 days after sending.
21. Assignment
This Agreement shall not be assigned, in whole or in part, by Contractor without the prior written consent of the Carrier, though Contractor may delegate its duties to its employees and agents. Carrier may freely assign this Agreement to any subsidiary, parent company, company under common control, or any successor in interest who is assigned substantially all of the assets of the business unit to which Contractor provides services.
22. Headings
The numbered section headings appearing in this Agreement do not constitute any part of this Agreement and shall not be considered in its interpretation.
23. Non-waiver
The failure of either party to this Agreement to insist upon the performance of any of the terms and conditions of this Agreement, or the waiver of any breach of any of the terms and conditions of this Agreement, shall not be construed as thereafter waiving any such terms and conditions, but these shall continue and remain in full force and effect as if no such forbearance or waiver had occurred.
24. Invalidity
In the event that any phrase, clause, sentence or other provision contained in this Agreement shall violate any applicable statute, ordinance, rule or law, such phrase, clause, sentence or provision shall be ineffective to the extent of such violations without invalidating any other provision of this Agreement.
25. Governing Law & Limitations on Actions
This Agreement shall be construed in accordance with laws of the State of Ohio, without regards to the choice of law rules and jurisprudence of any other jurisdiction. The parties agree that any and all disputes or claims relating to or arising from this Agreement, shall be brought or filed no later than one (1) year after the claim accrues.
26. Entire Agreement
This Agreement and the Appendices attached hereto constitute the entire Agreement and understanding between the parties and supersedes all prior agreements and shall not be modified, altered, changed or amended in any respect unless in writing and signed by both parties.
27. Survival of Obligations
The provisions in Sections 2, 4, 8, 9, 10, 11, 12, 13, 14, 15, 17, 18, 19, 23, 24, 25, and 26 shall survive any termination of this Agreement and shall remain in full force and effect.
28. Execution
Two original copes shall be executed, with Carrier and Contractor each retaining an original Agreement, and Contractor shall receive, or make, one copy to place in the Equipment during the term of this Agreement. This Agreement may be executed in multiple counterparts, or via electronic transmission and authentication, each of which shall be deemed an original. The Agreement shall be effective upon the signing by both parties, and delivery of a fully executed copy to Contractor.
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In witness whereof, this Agreement has been signed by the authorized representatives of Carrier and Contractor on the date shown in the opening paragraph of this Agreement.
Contractor Carrier
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Signature Signature
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Printed Name Title
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Title Printed Name
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Date Date
______________________________
Address
______________________________
Telephone
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Facsimile
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E-mail