CONTRACTOR HAULING AGREEMENT

155 ENTERPRISE DR
WENTZVILLE, MO 63385

RECITALS

1. During the term of this Agreement, CONTRACTOR shall provide CARRIER professional truck driving services, other incidental transportation related services, and the use of the equipment set forth below or in an appendix (the “Equipment”). CONTRACTOR represents and warrants that CONTRACTOR has title to or is authorized to contract the Equipment and services to CARRIER. Upon taking possession of the Equipment from CONTRACTOR, CARRIER shall furnish to CONTRACTOR a receipt for Equipment, which shall constitute the receipt required by 49 C.F.R.§ 376.11(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; 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 required under this provision.

    

2. CONTRACTOR owns or has a bona fide leaseholder interest in the motor vehicle(s) and equipment described below and desires to operate said vehicle(s) and equipment and perform transportation services as an independent contractor on behalf of Rapid Response Inc.

1. RELATIONSHIP

It is expressly understood and agreed that CONTRACTOR is an independent contractor for the Equipment and driver services provided pursuant to this Agreement. CONTRACTOR agrees to defend, indemnify and hold CARRIER harmless for any claims, suits, or actions, including reasonable attorney’s fees in protecting CARRIER’s interests, brought by employees, any union, the public, or state or federal agencies, arising out of the operation of the Equipment or the providing of driver services under this Agreement. CONTRACTOR also agrees to provide
necessary documentation and apply for certification of its independent contractor status where mandated by applicable state law, including but not limited to, the State of South Dakota. CONTRACTOR hereby assumes full control and responsibility for the selection, training, hiring, setting of grooming and dress standards, disciplining, discharging, setting of hours, wages and salaries, providing for unemployment insurance, state and federal taxes, fringe benefits, workers’ compensation, adjustment of grievances, all acts and omissions, and all other matters relating to or arising out of CONTRACTOR’s use or employment of drivers and laborers, and any and all other employees or agents of CONTRACTOR that CONTRACTOR may provide or use to perform any aspect of this Agreement. CONTRACTOR shall be solely responsible for complying with any and all state and federal laws, rules and regulations that may be applicable to the terms and conditions of employment of CONTRACTOR’s employees or applicants for employment, including, without limitation, compliance with the Federal Fair Credit Reporting Act; verification of immigration and naturalization status; proof of proper taxpayer identification number; proof of highway use tax being currently paid when the CONTRACTOR purchases its license; proof of payment of income; unemployment; Medicare and other state and federal payroll taxes; and, other required withholdings for CONTRACTOR’s employees. CONTRACTOR’s performance of these responsibilities shall be considered proof of its status as an independent contractor in fact. Proof of such control and responsibility shall be submitted by CONTRACTOR to CARRIER as required by CARRIER and may include, but not be limited to, proof of highway use tax being currently paid, proof of income tax being currently paid, and proof of payment of payroll tax for CONTRACTOR’s drivers. For the purposes of this section, the term CONTRACTOR refers to the owner of the Equipment as well as drivers that may be operating the Equipment on behalf of the owner. As required by law, CARRIER agrees to file information tax returns (Form 1099) on behalf of CONTRACTOR if CONTRACTOR is paid more than the statutory amount in compensation during a calendar year.

 

2. QUALIFICATIONS AND INSPECTION OF VEHICLE AND EQUIPMENT

CONTRACTOR represents and warrants that the Equipment is now in good mechanical condition and repair and meets the requirements and rules and regulations of the Federal Motor Carrier Safety Administration (“FMCSA”) and the U.S. Department of Transportation (“USDOT”); and CONTRACTOR agrees that he will at all times maintain said vehicle(s) and equipment in said condition and in compliance with said rules and regulations of all governmental bodies or agencies at his own cost and expense. Before commencing operation of said Equipment hereunder, and from time to time thereafter, CARRIER shall inspect the same or require the same inspected by such persons as CARRIER may designate in accordance with requirements of the USDOT and FMCSA. If said Equipment does not meet with the rules and regulations of the said FMCSA or USDOT the same  not be operated under this contract; and, in such event, CONTRACTOR agrees to repair and remedy the defects in order that said Equipment complies with said rules and regulations.

 

3. SUBSTITUTE VEHICLES

CONTRACTOR agrees that no substitution of Equipment shall be made without, first obtaining the written consent and authority of CARRIER. CONTRACTOR agrees that in the event another vehicle or piece of equipment is substituted for that herein above described, all the terms and conditions of the Contract shall apply to such substitute vehicle or equipment, the same as if specifically named herein.

4. OPERATION OF VEHICLE AND EQUIPMENT

CONTRACTOR recognizes that CARRIER’s separate and distinct business of providing motor carrier freight transportation service and white glove service to the public is subject to regulation by the federal government acting through the DOT, and by various other federal, state, local, and foreign governing bodies. As such, CONTRACTOR hereby acknowledges that he/she possesses full and complete understanding and knowledge of the USDOT’s CSA 2010 program (including, but not necessarily limited to, driver violations and ranking criteria). CONTRACTOR shall adhere to the following provisions of this Agreement to aid CARRIER in discharging its legal duties:

1. (a) CONTRACTOR shall provide competent professional drivers who meet CARRIER’s minimum driver qualification standards and all of the requirements of the DOT, including but not limited to, familiarity and compliance with state and federal motor carrier safety laws and regulations. As part of the driver qualification process, CONTRACTOR, and CONTRACTOR’s drivers, shall authorize CARRIER to access applicable driver files, Driver Safety Measurement System (“DSMS”) safety scores, and any other driver data or information available as part of USDOT’s CSA 2010 Driver Information Resource System (“DIRS”). The parties agree that CARRIER shall have the right to disqualify any driver provided by CONTRACTOR in the event that the driver is found to be unsafe, unqualified, unfit, uninsurable, or marginal, pursuant to federal or state law or the criteria established by the USDOT’s CSA 2010 DIRS, in violation of CARRIER's minimum qualification standards, or in violation of any policies of CARRIER’s customers. Drivers with a recent history of accidents, traffic convictions and/or serious traffic offenses will not meet CARRIER’s minimum qualification standards. Upon a driver’s disqualification by CARRIER, CONTRACTOR shall be obligated to furnish another competent, reliable and qualified professional driver that meets the minimum qualification standards established by CARRIER. For all qualified drivers, CONTRACTOR agrees to provide CARRIER with updated DSMS and DIRS driver rankings on a monthly basis.
2. Paperwork Requirements. CONTRACTOR shall submit to CARRIER, on a timely basis, all driver logs and supporting documents (including original toll receipts for CARRIER’s reproduction), physical examination certificates, accident reports, and any other required data, documents or reports, including any documentary evidence that CARRIER requests proving CONTRACTOR has paid all taxes legally due and owing to any government body. As required by 49 C.F.R. § 376.12(l), CARRIER will keep the original of this Agreement with a copy to be maintained by CONTRACTOR, and a second copy to be carried in the Equipment during the term of this Agreement.
3. That all transportation will be conducted under CARRIERS’ waybills, bills of lading, freight bills, manifests and other shipping documents, as required by State and Federal regulations. All transportation herewith contracted for shall be moved under the certificates of CARRIER or its carrier and over any route CONTRACTOR desires provided they are within the scope of reasonable operations or its principal carriers’ scope of authority. CONTRACTOR will be bound by all the terms, conditions, and provisions of said contracts, bills of lading and other shipping documents, as provided by all State and Federal regulatory agencies.
4. That CONTRACTOR will pick up, transport, deliver, and set up to retail customers request, punctually all goods carried by him under this Contract to such destinations as shown on freight bills, unless otherwise instructed by CARRIER.
5. That Equipment operated by CONTRACTOR hereunder shall at all times, be operated in full compliance with Federal, State and local laws, statutes, ordinances, rules and regulations relating to the operation of motor vehicles, including but not limited to contracting or licensing, speed, safety, devices and equipment, weight, tonnage, width, height, length, tariff publications, collection of charges, extensions of credit, insurance, wages and other terms and conditions of this agreement and worker’s comp insurance and/or occupational accident insurance and any and all other laws or regulations pertaining to operations hereunder.
6. To carry only those shipments authorized by law in or upon the Equipment being operated under this Contract and none other.
7. To return and deliver forthwith to CARRIER or its principal carrier, or such person or persons as CARRIER may designate, at any time upon demand of CARRIER or its principal carrier, any and all shipments being carried by CONTRACTOR under this Contract and any and all of CARRIERS’ vehicles or equipment in CONTRACTOR’s possession or under his control.
8. CONTRACTOR and its drivers shall, as required by 49 C.F.R. § 382.103, comply with CARRIER’s Drug and Alcohol Policy, including participation in CARRIER’s random drug and alcohol testing program, and any addendums or revisions thereto.
9. CONTRACTOR agrees to operate the Equipment in a safe and prudent manner at all times so as to avoid endangering the public, the driver, and/or the property being transported and in accordance with this Agreement, the laws of the various jurisdictions in which the Equipment will be operated and pursuant to the operating authorities of CARRIER, and in accordance with all rules related to traffic safety, highway protection and road requirements. Moreover, CONTRACTOR agrees that all drivers and/or workers employed by CONTRACTOR will comply with the terms of this Agreement, including the requirement of safe operations, while operating the Equipment on behalf of CONTRACTOR. CONTRACTOR agrees that any driver utilized by CONTRACTOR will comply with CARRIER’s policies and procedures and any subsequent revisions thereto, which will be provided by CARRIER.
10. Beginning on the date the FMCSA makes its CSA 2010 Program effective as to CARRIER’s and CONTRACTOR’s operations under this Agreement, CONTRACTOR shall ensure that CONTRACTOR, and any drivers of CONTRACTOR, and CONTRACTOR’s Equipment shall at all times meet CSA 2010 safety standards sufficient to enable CARRIER to (a) achieve and maintain a “fit” or similar rating that enables CARRIER to operate without FMCSA intervention or restriction pertaining to driver, equipment, and other CSA 2010 performance measures; (b) obtain insurance coverage without increased costs associated with driver, equipment, or other performance measures under CSA 2010; and (c) be and remain competitive with similarly situated carriers with regard to safety performance measures under CSA 2010. CONTRACTOR further agrees to notify CARRIER in writing within two (2) business days of receiving notification from the FMCSA that CONTRACTOR or any of its drivers have been deemed “unfit” or “marginal” based on their safety and compliance performance.

7. COMPENSATION

It is expressly understood and agreed that CONTRACTOR’s compensation shall be as set forth in Appendix A, and such compensation shall constitute the total compensation for everything furnished, provided, or done by CONTRACTOR in connection with this Agreement, including driver’s services. All mileage computations shall be based on the most recent edition of CARRIER’s Mileage Guide. Although CARRIER shall use reasonable efforts to make shipments available to CONTRACTOR for transportation during the term of this Agreement, CONTRACTOR acknowledges and agrees that CARRIER does not guarantee any specific number of shipments or amount of revenue to CONTRACTOR during the term of this Agreement. CONTRACTOR may refuse any specific shipment offered by CARRIER. CONTRACTOR is not prohibited from entering into separate agreements to provide equipment and other professional truck drivers not identified as Equipment above or in an attachment and drivers not used to service this Agreement, to other motor carriers.

8. SETTLEMENT PERIOD.

CARRIER shall settle with CONTRACTOR with respect to services provided under this Agreement within 15 calendar days after CONTRACTOR’s submission, in proper form, of those documents necessary for CARRIER to secure payment from its customers, including the signed freight bill, delivery receipt or bill of lading, and properly completed logs as required by the U.S. Department of Transportation (“DOT”). Where CONTRACTOR is paid a percentage of revenue, CARRIER will provide CONTRACTOR with a copy of the rated freight bill (or a computergenerated summary) before or at the time of settlement. CONTRACTOR may examine CARRIER’s tariffs, or other contracts or documents, if any, from which charges and rates are computed; provided, however, only that information that would appear on a rated freight bill will be disclosed by CARRIER. CARRIER shall have the right, but not as a condition of settlement and payment, to review all of CONTRACTOR’s documents and records relating to the use of the Equipment and the services provided under this Agreement and CONTRACTOR agrees to provide CARRIER with access to such documents and records upon reasonable notice. With respect to final settlement upon termination of this Agreement, the failure on the part of CONTRACTOR to remove and return to CARRIER all identification devices of CARRIER or a letter certifying their removal shall entitle CARRIER to withhold any payments owed to CONTRACTOR until such obligation is met.

9. CHARGE BACK.

CARRIER shall deduct from CONTRACTOR’s compensation, at the time of payment to or settlement with CONTRACTOR, any liability or expense CARRIER has incurred or paid that, under this Agreement or any addendum to this Agreement, CONTRACTOR is obligated to bear. Such expenses shall be deducted from the amount of CONTRACTOR’s settlement compensation and shall include those expenses set forth in Appendix A of this Agreement. The amount of each item to be charged back to CONTRACTOR shall be computed based on the actual cost or expense incurred by CARRIER and any administrative fee or mark-up disclosed in Appendix A or elsewhere in this Agreement or any addendum thereto. CARRIER shall provide CONTRACTOR written itemization and documentation of all charge backs where such documentation is necessary to verify the validity of the charge

10. INSURANCE

The respective obligations of the parties shall be as set forth in Appendix B. CARRIER shall maintain public liability, property damage and cargo insurance in such amounts as are required by the DOT and applicable state regulatory agencies. CARRIER shall maintain insurance coverage for the protection of the public pursuant to 49 U.S.C. § 13906. CARRIER’s possession of legally required insurance shall in no way restrict CARRIER’s right of indemnification from CONTRACTOR as provided under this Agreement. It shall be considered a material breach of this Agreement where CONTRACTOR is determined by CARRIER or CARRIER’s insurer to be uninsurable for any reason.

11. RESERVE FUND

CONTRACTOR authorizes CARRIER to establish and administer a reserve fund in accordance with the provisions of Appendix C.

12. INDEMNIFICATION

CONTRACTOR, agrees, to the greatest extent permitted by law, to indemnify, defend and hold CARRIER free and harmless against any and all liabilities, damages, losses, claims, causes of action, and suits at law or in equity or any obligations whatsoever arising out of or attributable to any action or neglect of CONTRACTOR or any of the personnel employed by CONTRACTOR in connection with the operation or maintenance, use, loading or unloading of the Equipment herein above described and any CARRIER owned semi-trailer or other equipment operated hereunder in connection therewith, and in connection with CONTRACTOR’S performance of transportation and other services hereunder, whether or not such liabilities, damages, losses, claims, causes of action or suits are caused in part by the CARRIER. CARRIER is hereby authorized to deduct all such claims from monies due the CONTRACTOR or from the “CONTRACTOR’s FUND”.

13. CARRIERS RESPONSIBILITIES

1. (a) Exclusive Possession and Responsibility. The Equipment shall be for CARRIER’s exclusive possession, control, and use for the duration of this Agreement. As such, CONTRACTOR shall not operate the Equipment for any other motor carrier or entity during the term of this Agreement without prior written consent from CARRIER. CARRIER shall assume complete responsibility for the operation of the Equipment for the duration of this Agreement. This subparagraph is set forth solely to conform with DOT regulations and shall not be used for any other purposes, including any attempt to classify CONTRACTOR as an employee of CARRIER. Nothing in the provisions required by 49 C.F.R. § 376.12(c)(1) is intended to affect whether CONTRACTOR or its drivers are an independent contractor or an employee of CARRIER. An independent contractor relationship may exist when a carrier complies with 49 U.S.C. § 14102 and attendant administrative requirements. Notwithstanding the above, Contractor is not prohibited from providing transportation services for other common or contract carriers or any other person or entity, provided that Contractor complies with the trip lease requirements set forth under federal law in 49 C.F.R. Part 376. CONTRACTOR may trip lease or subcontract the Equipment to a third party upon receiving prior authorization from CARRIER. CARRIER assumes no responsibility for the collection of freight charges or payment to CONTRACTOR for any trip-lease or subcontract related revenue. During the term of any trip lease or subcontract, CONTRACTOR will remove or cover up all of CARRIER’s identification on the Equipment and display instead the trip-lease carrier’s identification and, as between CONTRACTOR and CARRIER, CARRIER will have no responsibility for, and CONTRACTOR will fully indemnify CARRIER regarding, the operation of the Equipment.
2. Identification of Equipment. CARRIER shall identify the Equipment in accordance with the requirements of the DOT and appropriate state regulatory agencies. CARRIER shall have the right to place and maintain on the Equipment CARRIER’s name and any lettering, advertisement, slogans or designs as CARRIER may choose. CONTRACTOR shall remove such identification at the termination of this Agreement or while operating such Equipment for any purpose other than conducting CARRIER’s business. At its discretion, CONTRACTOR may have the identification permanently painted on the Equipment. CONTRACTOR further agrees to keep the Equipment in clean appearance and identified as described herein, at its sole cost and expense. CARRIER agrees that CONTRACTOR may display CONTRACTOR’s name and address on the Equipment where required by applicable state law.

14. ACCIDENTS AND CLAIMS

CONTRACTOR shall immediately report any accident or potential claim to CARRIER involving operations under this Agreement. CONTRACTOR and its drivers shall cooperate fully with CARRIER with respect to any legal action, regulatory hearing or other similar proceeding arising from the operation of the Equipment, the relationship created by this Agreement or the services performed hereunder. CONTRACTOR shall, upon CARRIER’s request and at CONTRACTOR’s sole expense, provide written reports or affidavits, attend hearings and trials and assist in securing evidence or obtaining the attendance of witnesses. CONTRACTOR shall provide CARRIER with any assistance as may be necessary for CARRIER or CARRIER’s representatives or insurers to investigate, settle or litigate any accident, claim or potential claim by or against CARRIER.

15. TERM AND TERMINATION

1. The term of this Contract shall be for one (1) year from the date hereof, and shall be automatically renewed and continued from year to year thereafter, unless terminated as follows:

1. Either party may, upon at least thirty (30) days written notice to the other party, terminate this Contract.
2. Should CONTRACTOR become insolvent, or make a general assignment for the benefit of creditors, or should a receiver be appointed for him, or should CONTRACTOR commit any act of bankruptcy, or be deemed financially insecure by CARRIER, this Contract may be terminated by CARRIER without notice, immediately upon the happening of any of such events.
3. This Contract shall terminate forth-with upon any attempted assignment thereof by CONTRACTOR whether voluntary by operation of law or otherwise.
4. In the event of any breach of the terms, provisions, conditions, or covenants of this Contract by CONTRACTOR, CARRIER may, at its option and without prior notice, terminate this Contract immediately upon the happening thereof.

1. (b) Upon receipt of any notice of termination from CARRIER, CONTRACTOR shall:

1. Immediately discontinue all operations under this contract provided, however, that upon request of CARRIER, CONTRACTOR shall complete the delivery of any goods, wares, and merchandise which he may then have in his possession being transported under the terms of the Contract, and CONTRACTOR shall deliver forthwith to CARRIER all collections due CARRIER, any and all equipment belonging to CARRIER, all papers and documents furnished by CARRIER to CONTRACTOR, including copies of this contract, bills of lading inventories, and any and all shipping documents, materials, and other evidence of opening authority in CONTRACTOR’s possession.
2. Return of said semi-trailer forthwith to CARRIER or such other point as CARRIER shall designate, providing such point shall not be greater distance than CARRIER terminal. In the event, CONTRACTOR shall fail or refuse to return said semi-trailer as herein provided, CONTRACTOR hereby authorizes CARRIER to expend any and all monies then due or thereafter becoming due CONTRACTOR for the purpose of locating said semi-trailer and returning same to CARRIER and the expenses of any legal action deemed necessary by CARRIER, including reasonable attorney’s fees therein; and all such sums to expended shall be deducted from any compensation due or to become due CONTRACTOR hereunder and shall be prima face evidence of the reasonableness thereof in the event of any law suit in which said expense are contested by CONTRACTOR.
3. Forthwith, and in no event later than five (5) days after receipt of notice of termination, remove all identifying trade-marks, signs, color combinations, and lettering referring to CARRIER from said Equipment. In the event CONTRACTOR fails to comply with this provision within said five (5) days period, CONTRACTOR shall pay to CARRIER the sum of Fifty ($50) dollars per unit of equipment per day as for liquidated damages for each day of non compliance; and, in addition thereto, CARRIER may withhold payment of any and all amounts due CONTRACTOR or which may thereafter become due CONTRACTOR until this provision has been fully complied with. Evidence of such compliance shall be furnished by CONTRACTOR to CARRIER in accordance with CARRIERS’ instructions or requirements.

16. NOTICES

Any and all notices required under this Contract to be given to either party to the other shall be deemed to have been given upon the mailing of same in a postpaid, registered, sealed envelope to the parties hereto as follows:

To the CARRIER Rapid Response Inc. at:

155 ENTERPRISE DR.
WENTZVILLE, MO 63385

17. BREACH.

Notwithstanding anything to the contrary in this Agreement, this Agreement may be terminated, at any time, by either party in the event of a material breach by the other of any term or obligation contained in this Agreement. In the event of a breach and when practicable, written notice shall be served upon the breaching party, notifying such party of the breach and the termination of the Agreement and reason therefore. If, in CARRIER’s judgment, CONTRACTOR has subjected CARRIER to liability because of CONTRACTOR’s acts or omissions, CARRIER may take possession of the shipment entrusted to CONTRACTOR and complete performance. In such event, CONTRACTOR shall waive any recourse against CARRIER for such action and CONTRACTOR shall reimburse CARRIER for all direct or indirect costs, expenses, or damages, including attorney’s fees, incurred by CARRIER as a result of CARRIER’s taking possession of the shipment and completing performance.

18. CONTRACTOR NOT REQUIRED TO PURCHASE PRODUCTS,

EQUIPMENT OR SERVICES FROM CARRIER. CONTRACTOR is not required to purchase or rent any products, equipment, or services from CARRIER as a condition of entering into this Agreement. In the event CONTRACTOR elects to purchase or rent equipment from CARRIER or from any third party, for which the purchase or rental contract gives CARRIER the right to make deductions from CONTRACTOR’s settlement.

19. PASSENGER AUTHORIZATION.

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 as required by law. Before passenger authorization will be given by CARRIER, CONTRACTOR (or its driver) and the passenger requesting authorization shall submit a fully executed Passenger Authorization and Release of Liability form to CARRIER for prior approval.

20. LOADING AND UNLOADING.

In the event the shipper or consignee does not assume loading and unloading responsibilities, CONTRACTOR shall be responsible for the loading or unloading of property transported on behalf of CARRIER at CONTRACTOR’s expense.

21. CONFIDENTIALITY.

CONTRACTOR hereby recognizes and acknowledges that any list of CARRIER’s customers, as it may exist now or from time to time, is a valuable, special and unique asset of the business of CARRIER. CONTRACTOR agrees, during and after the term of this Agreement, not to disclose the list of CARRIER’s customers or any part thereof to any person, firm, corporation, association, or other entity for any reason or purpose whatsoever without CARRIER’s prior written consent. CONTRACTOR agrees to preserve as “Confidential Matters”, all trade secrets, knowhow and information relating to CARRIER’s business, forms, processes, developments, sales and promotional systems, prices and operations, which information may be obtained from tariffs, contracts, freight bills, letters, reports, disclosures, reproductions, books, records, or other contractors, and other sources of any kind resulting from this Agreement. CONTRACTOR agrees to regard such Confidential Matters as the sole property of CARRIER, and shall not publish, disclose or disseminate the same to others without the written consent of CARRIER. In the event of any breach or threatened breach by CONTRACTOR of the provisions of this paragraph, CARRIER shall be entitled to an injunction, restraining CONTRACTOR from disclosing, in whole or in part, the list of CARRIER’s customers, and all other Confidential Matters. CONTRACTOR agrees that CARRIER will be irreparably damaged in the event of any breach of this provision by CONTRACTOR. Accordingly, in addition to any other legal or equitable remedies that may be available to CARRIER, CONTRACTOR agrees that CARRIER will be able to seek and obtain immediate injunctive relief in the form of a temporary restraining order without notice, preliminary injunction, or permanent injunction against CONTRACTOR to enforce this confidentiality provision. CARRIER shall not be required to post any bond or other security and shall not be required to demonstrate any actual injury or damage to obtain injunctive relief from the courts. Nothing hereunder shall be construed as prohibiting CARRIER from pursuing any remedies available to CARRIER at law or in equity for such breach, including the recovery of monetary damages from CONTRACTOR22. SEVERABILITY. If any Agreement or its appendices is deemed invalid for any reason whatsoever, the Agreement shall be void only as to such provision, and this Agreement shall remain otherwise binding between the parties. Any provision voided by operation of the foregoing shall be replaced with provisions which shall be as close as the parties’ original intent as permitted under applicable law

23. WAIVER

The failure of CARRIER to enforce at any time of the provisions of this Contract, or to exercise any option which is herein provided, or to require at any time performance by CONTRACTOR of any of the provisions hereof, shall in no way be construed to be a waiver of such provisions, nor in any way affect the validity of this Contract or any part thereof, or the right of the CARRIER to thereafter enforce each and every such provision.

24. ATTORNEY’S FEES

In the event that CARRIER incurs legal fees or attorney fees in securing payment for any amounts due under this Contract, then said costs will be assumed by the CONTRACTOR in the event that judgment is ruled in favor of the CARRIER.

25. ASSIGNMENT

CONTRACTOR covenants that he will not assign or transfer this Contract, and any attempt on the part of CONTRACTOR to assign, whether by operation of law, voluntary, or otherwise shall terminate this Contract and the same shall be void and of no effect forthwith. CARRIER reserves the right to assign this Contract to any corporation succeeding, by way of purchase or otherwise, to substantially all of the assets of CARRIERS’ corporation.

26. INTERPRETATION, LAW APPLICABLE, ETC.

It is expressly understood and agreed between the parties to this Contract that the same is subject to all State and Federal Statutes, and the rules and regulations of the FMCSA, and all state regulatory bodies and agencies; and, in the event of any conflict therewith, this Contract shall be modified to meet such requirements, and, as so modified shall continue in full force and affect as to the parties hereto. It is further agreed between the parties hereto that verbal arrangements or understandings of any kind or character have been entered into, and that all Arrangements or Agreements between the parties incorporated within this Contract and the Schedules attached 13 Rapid Response  hereto, or as said Schedules shall hereinafter be amended. This Contract shall be governed by the laws of the State of Missouri, both as to interpretation and performance. CONTRACTOR covenants and agrees that any action at law or in equity by CONTRACTOR against CARRIER and arising out of this Contract shall be commenced and maintained in any court of competent jurisdiction in the State of Missouri. CONTRACTOR hereby expressly agrees that service of process by publication and personal services on CONTRACTOR, outside the State of Missouri shall be sufficient to give the proper Missouri court personal jurisdiction over him, and CONTRACTOR hereby expressly waives all objections to such service of process and consents thereto.

27. COMPLETE AGREEMENT

The Agreement (including the Appendices and any addendums) constitute the entire agreement between CARRIER and CONTRACTOR pertaining to the subject matter contained herein and fully replaces and supersedes all prior and contemporaneous agreements, representations, and understandings. No supplement, modification, or amendment to the Agreement shall be binding unless in writing and signed by both CARRIER and CONTRACTOR, except as otherwise provided with respect to deductions in Section 3 of Appendix A. No waiver of any of the provisions of the Agreement shall constitute a waiver of any other provisions whether or not similar, nor shall any waiver constitute a continuing waiver. No waiver shall be deemed effective or binding upon the CONTRACTOR unless executed in writing by the party making the waiver. IN WITNESS WHEREOF, the parties hereto have executed this Contract on the date hereinabove set forth.

INSURANCE AND ALLOCATION OF LIABILITY

1. CARRIER'S INSURANCE OBLIGATIONS. It shall be CARRIER’s responsibility, pursuant to DOT regulations promulgated under 49 U.S.C. § 13906 and pursuant to applicable state laws, to provide public liability, property damage, and cargo liability insurance for the Equipment at all times while the Equipment is being operated on behalf of CARRIER. However, CARRIER's possession of such insurance shall in no way affect CARRIER's rights of indemnification against CONTRACTOR as provided for in this Agreement.
2. CONTRACTOR'S INSURANCE OBLIGATIONS. CONTRACTOR shall maintain, at its sole cost and expense, the following minimum insurance coverage’s during this Agreement:
(a) AUTO LIABILITY. CONTRACTOR shall, at CONTRACTOR's sole expense, carry its own insurance coverage for auto liability in an amount sufficient to meet the obligations of 49 U.S.C. § 13906, but in any event, not less than $1 Million per occurrence for any injury, property damage or death resulting from the operation of the Equipment during the term of this Agreement. Such auto liability insurance must provide coverage regardless of whether theEquipment is being operated on behalf of CARRIER or otherwise at the time of any claim and the insurance policy must have a maximum deductible of no greater than $2,500 per occurrence. The coverage shall be no less comprehensive than the coverage CARRIER will facilitate on CONTRACTOR’s behalf if CONTRACTOR so chooses, as provided in Section 5 of this Appendix and the policy shall include an endorsement stating that it will reimburse CARRIER or its insurer for claims paid by CARRIER or its insurer. In addition, such coverage shall be primary to any other insurance that may be available to CARRIER and CONTRACTOR shall be solely responsible for all deductible amounts and for any loss or damage in excess of the policy limit.
(b) COMMERCIAL GENERAL LIABILITY. CONTRACTOR shall, at its sole expense, carry its own insurance coverage for commercial general liability in an amount no less than $1 Million per occurrence with a deductible amount of no greater than $2,500 per occurrence. Such coverage shall be no less comprehensive than the coverage CARRIER will facilitate on CONTRACTOR’s behalf if CONTRACTOR so chooses, as provided in Section 5 of this Appendix and the policy shall include an endorsement stating that it will reimburse CARRIER or its insurer for claims paid by CARRIER or its insurer. In addition, such coverage shall be primary to any other insurance that may be available to CARRIER, and CONTRACTOR shall be responsible for all deductible amounts and for any loss or damage in excess of the policy limits.
(c) CARGO INSURANCE. CONTRACTOR shall, at its sole expense, carry its own cargo insurance coverage in an amount no less than $100,000 per occurrence with a maximum deductible of no greater than $2,500 per occurrence. Such coverage shall be no less comprehensive than the coverage CARRIER will facilitate on CONTRACTOR’s behalf if CONTRACTOR so chooses, as provided in Section 5 of this Appendix and the policy shall include an endorsement stating that it will reimburse CARRIER or its insurer for claims paid by CARRIER or its insurer. In addition, such coverage shall be primary to any other insurance that may be available to CARRIER, and CONTRACTOR shall be solely responsible for all deductible amounts and for any loss or damage in excess of the policy limits. 

(d) 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 One Million Dollars ($1,000,000) for injury or death to any person or for damages to property in any one occurrence. 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.
(e) WORKERS' COMPENSATION/OCCUPATIONAL ACCIDENT INSURANCE. CONTRACTOR shall provide workers’ compensation insurance coverage for CONTRACTOR (if a natural person), all of its employees and agents, anyone driving the Equipment, and any other persons required to be covered under the worker's compensation law of any state that is reasonably likely to have jurisdiction over CONTRACTOR’s business operations and in amounts not less than the statutory limits required by such applicable state law. The worker's compensation insurance policy shall provide principal coverage in Missouri as well as the state in which the work is principally localized, and shall provide "other states coverage" that excludes only North Dakota, Ohio, Washington, and Wyoming. As evidence of such coverage, CONTRACTOR shall provide CARRIER with a copy of the insurance policy declarations page for CARRIER’s verification before operating the Equipment under this Agreement. If (a) CONTRACTOR is the sole owner and the sole and exclusive operator of the Equipment and (b) the state in which the work is principally localized is not Colorado, Massachusetts, Nevada, New Hampshire, New Jersey, or North Carolina, then CONTRACTOR may, as an alternative to obtaining workers’ compensation coverage, obtain occupational accident insurance policy that includes either an endorsement or a separate policy provision whereby the insurer provides, or agrees to provide, workers' compensation coverage that becomes effective for a claim by CONTRACTOR alleging employee status.
(f) PASSENGER INSURANCE. 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 ________________ Dollars ($___,000) 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. 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.
(g) OTHER INSURANCE. In addition to the insurance coverage’s 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. As provided in this Agreement, CONTRACTOR holds CARRIER harmless with respect to loss of or damage to CONTRACTOR's Equipment, trailer, or other property, and 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 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 Missouri law (or such other state law where the Equipment is principally garaged), and CONTRACTOR shall cooperate in the completion of all necessary documentation for such waiver, election, or rejection. 

3. REQUIREMENTS APPLICABLE TO ALL OF CONTRACTOR'S INSURANCE
COVERAGES. CONTRACTOR shall procure insurance policies providing the above described coverage’s solely from insurance carriers that are A.M. Best “A”-rated, and CONTRACTOR shall not operate the Equipment under this Agreement unless and until CARRIER has determined that the policies are acceptable (CARRIER’s approval shall not be unreasonably withheld). CONTRACTOR shall furnish to CARRIER written certificates obtained from CONTRACTOR’S insurance carriers showing that all insurance coverage’s required above have been procured from A.M. Best “A” rated insurance carriers, that the coverage’s are being properly maintained, and that the premiums thereof are paid. Each insurance certificate shall specify the name of the insurance carrier, the policy number, and the expiration date; list CARRIER as an additional insured with primary coverage; and show that written notice of cancellation or modification of the policy shall be given to CARRIER at least thirty (30) days prior to such cancellation or modification.
4. CONTRACTOR'S LIABILITY IF REQUIRED COVERAGES ARE NOT
MAINTAINED. In addition to CONTRACTOR's hold harmless/indemnity obligations to CARRIER under the Agreement, CONTRACTOR agrees to defend, indemnify, and hold CARRIER harmless from any direct, indirect, or consequential loss, damage, fine, expense, including reasonable attorney fees, actions, claim for injury to persons, including death, and damage to property that CARRIER may incur arising out of or in connection with CONTRACTOR'S failure to maintain the insurance coverages required by this Agreement. In addition, CONTRACTOR, on behalf of its insurer, expressly waives all subrogation rights against CARRIER, and, in the event of a subrogation action brought by CONTRACTOR's insurer, CONTRACTOR agrees to defend, indemnify, and hold CARRIER harmless from such claim.

THIS APPENDIX is agreed to by the undersigned parties as of the latest date set forth below.

 

RESERVE FUND

As authorized by Paragraph 13 of this Agreement, CARRIER shall establish and administer a Reserve Fund, which CONTRACTOR and CARRIER agree shall be governed by the following terms and conditions: Contractor agrees to deposit a total of $2,000.00 (per unit/truck operated) into a reserve fund. In lieu of a lump sum deposit at time of engagement, CARRIER will deduct $50.00 per week per unit for the first forty (40) weeks for the reserve fund, to reach the required amount of $2,000.00 per unit. In the event of termination, if the balance of reserve fund has not met the $2,000 required amount, CARRIER’s final settlement statement may be applied toward this fund. The reserve fund will be held by the CARRIER for one (1) year from date of termination. In the event funds are depleted for any reason from the reserve fund, the $50.00 weekly deduction will resume until the amount in the reserve fund is brought back to $2,000.00. Contractor will forfeit reserve fund if proper notice is not given or actions deemed detrimental to CARRIER results in automatic termination.

THIS APPENDIX is agreed to by the undersigned parties as of the latest date set forth below.