Broker and Carrier agree as follows:
1. Broker Status. Broker is a transportation broker authorized by the FMCSA under the broker permit identified as U.S. DOT No. 3431426 and Docket Number MC 1122768 to arrange for transportation of general commodities by motor carriers and to provide cargo transportation for its customers, in accordance with its role as legally defined under 49 U.S.C. § 13102 Definitions (2), 49 C.F.R. §371.2 and 49 U.S.C. § 14501(c)(1).
1.1 Carrier Status, Rights and Responsibility. Carrier will perform its Transportation Services for Broker and its Customers as an independent contractor and will not for any purpose be the agent of Broker or Broker's Customers. Carrier has exclusive control and direction of the work Carrier performs pursuant to this Agreement. Carrier will not contract or take other action in Broker's name without Broker's prior written consent. Carrier agrees to assume full responsibility for the payment of all local, state, federal and intra-provincial payroll taxes, and contributions or taxes for unemployment insurance, worker's compensation insurance, pensions, and other social security or related protection with respect to the persons engaged by Carrier for Carrier's performance of the transportation and related services, and Carrier shall indemnify, defend, and hold Broker, and its Customer harmless there from. Carrier shall provide Broker, with Carrier's Federal Tax ID number and a copy of Carrier's IRS Form W-9 prior to commencing any transportation or related services for Broker, under this Agreement.
1.2 Description of Services. Carrier agrees to provide transportation services, including but not limited to, for less-than-truckload, full truckload, and consolidated truckload shipments, for goods tendered by Broker’s shipper customers (the “Services”) in compliance with the terms of this Agreement and its Exhibits as well as all applicable federal, state, and local laws and regulations relating to the transportation of the freight covered by this Agreement. The Services shall be understood as “contract carriage” within the meaning of 49 USC 13102(4)(B), and the Parties each expressly waive all rights and remedies they may have as to each other under 49 USC, Subtitle IV, Part B as permitted by 49 USC 14101(b)(1) to the extent that such rights and remedies conflict with the terms of this Agreement. Carrier agrees that from time to time Broker or its shipper customers may provide instructions for the consolidation and/or deconsolidation of certain less-than-truckload or truckload shipments. Carrier agrees to comply with the consolidation and/or deconsolidation instructions and notify Broker if any such consolidation and/or deconsolidation services have not been completed, as instructed. When Broker or its shipper customer has provided instructions for consolidation and/or deconsolidation, such services shall be included in Carrier’s Services. Carrier or its driver are responsible for determining the appropriate route for transportation. Any route directions provided by Broker to Carrier are provided as a convenience only and Carrier shall have no obligation to follow such routing directions. To allow Broker to comply with customer requests regarding shipment status, Carrier shall provide contact information for any driver transporting cargo pursuant to this Agreement.
2. Rates and Charges. Carrier shall invoice Broker for its Services in accordance with rates and charges set forth on Exhibit A or otherwise mutually agreed upon in writing between the Parties including, for example, on a Load Confirmation Sheet/Rate Confirmation Sheet. Carrier expressly acknowledges and agrees that, for any pooled shipments where one or more of the shipments in a given pool is missed or otherwise unavailable for pickup, Broker and Carrier will negotiate a reasonable reduction in the rate for the pooled shipment, such reduction to be memorialized in a revised Rate Confirmation Sheet or other writing (email communication being sufficient) between the Parties. Absent an express rejection in writing, Carrier’s continued transportation of the shipment after having received a quote for a commercially reasonable reduced rate shall constitute Carrier’s acceptance of such rate. Other charges, including but not limited to, stop-offs, detention, loading or unloading, fuel surcharges, or other accessorial charges, tariff rates, released rates or values, or tariff rules or circulars, shall only be valid when their terms are specifically agreed to in a writing signed by both Parties. Carrier hereby waives any lien rights that it has or may have over goods received pursuant to this Agreement. If Carrier tenders a shipment covered by this Agreement to a third party and such third party claims a lien over the goods, then Carrier shall immediately take any such action as is necessary to satisfy such lien and release the goods to Broker or its shipper customer. In addition, Carrier will not assert any lien or make any claim on any cargo or equipment, and no lien will attach against Broker, its Customers or any cargo or equipment, for failure of Broker, the Customer or any other third party to pay Carrier for charges due to Carrier.
3. Payment. Broker agrees to pay Carrier within thirty (30) days of receipt of Carrier’s undisputed invoice for the Services, in accordance with the rates set forth or as otherwise agreed, provided that, Carrier timely submits documents verifying delivery, including any receipt of proof of delivery, bill of lading, signed load confirmation, and any other documents agreed upon in the Load Confirmation Sheets/Rate Confirmation incorporated herein by reference. Carrier must provide Broker with a proof of delivery document within twenty-four (24) hours after delivery or any other time requested by Broker. If Carrier fails to tender such documents after ninety (90) days, then Carrier hereby forfeits and waives any right to payment for any shipment performed pursuant to this Agreement. Broker reserves the right to proportionately reduce the rate agreed in a Rate Confirmation Sheet if Carrier fails to adhere to the instructions therein. Carrier automatically assigns all of its rights to payment from shippers, consignees, or third parties to Broker. Carrier agrees that Broker is the sole party responsible for payment of Carrier’s charges and that, under no circumstances, will Carrier seek payment from the shipper, consignee, or third party.
4. Term and Termination. The term of this Agreement shall begin on the Effective Date and shall continue in full force and effect for a period of one (1) year, and shall thereafter automatically renew for successive one (1) year terms. This Agreement may be terminated by either party prior to the expiration of the term, with or without cause, by giving thirty (30) days prior written notice. The termination of this Agreement shall not relieve or release either Party from any right, liability, or obligation that accrued prior to the date of such termination. Carrier shall be required to complete all pending shipments in compliance with this Agreement for the compensation contemplated herein even in the event that such performance extends beyond the effective date of termination.
5. Lawful Operation. Carrier represents and warrants that it holds and will maintain during this Agreement a valid motor carrier operating authority issued by the FMCSA and identified by the U.S. DOT Number and MC Docket Number set forth in the Recitals, if applicable, and all required insurance as well as all foreign or intrastate licenses and permits necessary to lawfully perform the Services, including a valid Commercial Vehicle Operator’s Registration issued by the Ministry of Transportation for Ontario if operating in Canada. Carrier shall, at all times, transport the goods under its own operating authority and subject to the terms of this Agreement. Carrier agrees to provide Broker with proof of insurance and operating authority if requested. Carrier represents that it does not have an “Unsatisfactory” or “Conditional” safety rating as determined by the FMCSA or a substantially equivalent rating issued by a state or other government agency having jurisdiction. Carrier shall immediately notify Broker if it receives an Unsatisfactory, Conditional, or equivalent safety rating, or if its required operating authorities, licenses, permits, or insurance are revoked, suspended, or rendered inactive for any reason and Carrier shall cease providing the Services until such are restored. If Carrier is sold, merges, dissolves or experiences a change in control of ownership, Carrier will notify Broker immediately.
6. Carrier Operating Responsibilities.
(a) Re-Brokering Prohibited. Carrier shall transport all cargo tendered by Broker on motor vehicle equipment operated pursuant to Carrier’s for-hire motor carrier authority, and shall not re-broker, co-broker, subcontract, assign, interline, or transfer the transportation of shipments hereunder to any other person or entity without express prior written consent of Broker. If Carrier breaches this provision, Carrier shall remain fully liable pursuant to this Agreement as if it had transported the shipment on vehicles operating under its motor carrier authority (including liability for cargo loss and damage claims and its indemnification, defense, and hold harmless obligations). In addition, If Carrier breaches this provision, Broker shall have the right of paying the monies it owes Carrier directly to the delivering carrier, in lieu of payment to Carrier. Upon Broker’s payment to the delivering carrier, Carrier shall not be released from any liability to Broker under this Agreement. In the event any shipment is delayed, or Carrier otherwise fails to complete any trip undertaken by it, and Broker must arrange for the completion of such trip with another carrier, Carrier shall be responsible for reasonable and necessary costs, charges, fees, and expenses related thereto. In the event that Broker has a reasonable basis to believe that Carrier has breached this section with respect to a single shipment, Broker reserves the right to conduct an investigation to its reasonable satisfaction that Carrier has not violated this provision in any respect, and Broker may withhold payment of any outstanding invoices to Carrier until Broker has confirmed Carrier’s compliance with this provision. Broker may immediately terminate this Agreement if Carrier breaches this Subsection 6(a).
(b) Compliance with Law. Carrier shall comply with all applicable federal, state, provincial, and local laws relating to the provision of its services including, but not limited to those requirements in the jurisdiction of operation that are equivalent to those set forth herein: transportation of Hazardous Materials (including the licensing and training of Haz Mat qualified drivers), as defined in 49 C.F.R. §172.800, §173, and §397 et seq. to the extent that any shipments hereunder constitute Hazardous Materials; security regulations; owner/operator lease regulations; loading and securement of freight regulations; implementation and maintenance of driver safety regulations including, but not limited to, hiring, controlled substances and alcohol testing, and hours of service regulations, federal and state labor regulations and OSHA; sanitation, temperature, and contamination requirements for transporting food, perishable, and other products, qualification and licensing and training of drivers; implementation and maintenance of equipment safety regulations; maintenance and control of the means and method of transportation including, but not limited to, performance of its drivers; all applicable insurance laws and regulations including but not limited to workers’ compensation; and the Canadian National Safety Code. Further, Carrier represents and warrants that it will not perform services pursuant to this Agreement at any time while Carrier is included on the list of port trucking companies with unsatisfied court judgments, tax assessments or tax liens published by the California Labor Commissioner pursuant to Cal. Labor Code § 2810.4
(c) Drivers. Carrier shall be solely responsible for any and all management, governing, discipline, direction and control of its employees, owner/operators, and equipment with respect to operating within all applicable federal, state, and provincial legal and regulatory requirements to ensure the safe operation of Carrier’s vehicles, drivers and facilities. Carrier shall ensure that each driver is duly qualified, in possession of a valid Commercial Driver’s License or equivalent, and otherwise meets all of the physical, training and other qualifications for commercial motor vehicle drivers set forth in the Federal Motor Carrier Safety Regulations or other laws and regulations applicable in the jurisdiction of operation. Carrier shall ensure that each driver who it assigns to transport cargo will have sufficient time under the hours of service regulations to complete the assigned transportation and is in compliance with all applicable drug and alcohol testing requirements.
(d) Equipment. Carrier shall, at its sole cost and expense, furnish the vehicles and equipment, including loading equipment, required to provide the Services. Carrier shall ensure the safe and lawful operation of the vehicles and equipment used in the performance of the Services and will assume all costs, expenses, and liabilities incident to or arising out of furnishing, maintaining, repairing, or operating motor vehicles and other equipment, labor, fuel, supplies, and insurance. Carrier shall ensure that (i) all vehicles and equipment are regularly maintained and in good order, condition and repair and in compliance with all applicable federal and state laws, rules and regulations; (ii) no equipment has previously been used to transport hazardous wastes, garbage, refuse, rodenticide or pesticide of any kind, regardless of whether it meets the definition in 40 C.F.R. §261.1 et seq., or other similarly applicable laws or regulations; and (iii) all equipment is clean, dry, leak proof, free from harmful or offensive odor, sanitary, and free of any contamination, suitable for the particular commodity being transported and which will not cause in whole or in part adulteration of the commodity as defined in 21 U.S.C § 342. Unless a trailer is pre-loaded and sealed by the shipper, and the applicable bill of lading bears a “shipper load and count,” “SLC,” or similar designation, Carrier shall be solely responsible for ensuring that all goods and equipment have been properly loaded, secured, blocked and braced. Unless otherwise agreed in writing, Broker and its customers shall have exclusive use of equipment provided by Carrier for a shipment covered by this Agreement.
(e) Transportation Requirements. Carrier will comply with any cargo handling instructions communicated to Carrier by Broker or its shipper customer, including via the applicable bill of lading or load tender documentation. In addition, Carrier shall, and shall cause its drivers to, comply with facility rules in effect at any locations where Carrier is performing pick-up or delivery services. Carrier is responsible for payment of all permits, escorts, route surveys, bridge surveys, utility assistance, and any other ancillary costs arising from or related to the Services and such costs are not collectable under Section 2 of this Agreement. Carrier agrees that all shipments will be transported and delivered with reasonable dispatch, or as otherwise agreed in writing. For Carriers transporting Food Shipments, further obligations are set forth in Exhibit B which shall apply in addition to all other laws and regulations applicable in the jurisdiction of operation. Carrier, its employees, drivers, and agents when on any premises of a shipper, consignee, or affiliated party shall comply with all applicable laws, rules and regulations regarding safety, health, and security, and all other rules and procedures at an origin or destination facility that are visibly posted or otherwise made known to the Carrier.
(f) Shipping Documents. Carrier shall sign a bill of lading, produced by shipper or Carrier in compliance with 49 C.F.R. §373.101 (and any amendments thereto), or other similarly applicable laws or regulations, for the property it receives for transportation under this Agreement. Any terms of the bill of lading, delivery receipt, or tariff (including but not limited to payment and credit terms, released rates or released value) inconsistent with the terms of this Agreement shall not operate to alter or amend the provisions herein and shall be subordinate to this Agreement. Carrier shall not insert Broker’s name as the “carrier” on any bill of lading or other shipping document. Any such insertion shall be for convenience only and shall not change Broker’s status as a property broker or Carrier’s status as a motor carrier. Failure to issue a bill of lading, or sign a bill of lading acknowledging receipt of the cargo, by Carrier, shall not affect the liability of Carrier. Prior to signing any bill of lading, it shall be the responsibility of Carrier’s driver to count the goods, if applicable, described in the bill of lading, and to report any overages and shortages to Broker; otherwise Carrier will be liable for any shortages. Unless otherwise agreed in writing, Carrier shall become fully responsible/liable for the freight when it signs the bill of lading or takes/receives possession of the freight and the trailer(s) is loaded, whichever occurs first, and with respect to the latter, regardless of whether a bill of lading has been issued, and/or signed, and/or delivered to Carrier. Such responsibility/liability shall continue until delivery of the shipment to the consignee and the consignee signs the bill of lading or delivery receipt. Any discrepancy between a Rate Confirmation Sheet and a Bill of Lading relating to shipment details (including cargo kind and quantity) or instructions (including temperature requirements) shall be immediately communicated by Carrier to Broker, and Carrier shall await Broker’s instructions to resolve such discrepancy before proceeding with the affected shipment.
(g) Weight and Dimensions. Carrier shall be responsible for confirming that the weight and dimensions of the shipment tendered by Broker’s shipper customers at the time of pickup conforms to the weight and dimensions of the shipment as set forth in the load confirmation and complies with applicable laws and regulations. In the event of a material discrepancy between the actual weight and/or dimensions of the shipment at the time of pickup of the shipment with the weight and/or dimensions as recorded and provided by Broker to Carrier, or if the shipment is not under the legal weight limit, Carrier shall immediately notify Broker of such discrepancy. Carrier is responsible for all costs, fees, fines, tickets, and other damages arising from its failure to comply with the requirements herein.
(h) Pooled Freight. For all shipments being transported via shared truckload or pooled truckload mode, Carrier must be present for the loading and unloading of the cargo to verify that such cargo is not lost or damaged during loading or unloading. Further, Carrier shall ensure that the cargo is properly stowed, loaded, blocked, and braced for transportation pursuant to any applicable laws and regulations, safety standards, industry standards, and Broker-provided instructions. If cargo is lost or damaged during the loading or unloading process, Carrier shall immediately notify Broker, and the cargo will be considered to be in apparent good order and conditions unless Carrier provides such notification. Unless necessary to comply with the instructions of a governmental authority, Carrier is prohibited from transloading, crossdocking, or any in manner unloading and/or reloading cargo after it has been loaded onto the conveyance at the origin location, until the cargo is unloaded at its specified destination. Carrier shall follow pick up and drop off instructions provided by Broker, including the sequence of loading and unloading.
(i) Temperature-Controlled Transportation. For all shipments that Broker or its customer designates as requiring temperature control, Carrier shall maintain proper temperature control in compliance with all instructions provided by Broker or its customer. The final temperature instructions shall be those listed on the bill of lading; Carrier shall immediately notify Broker and await further instructions if there is a discrepancy between the temperature instruction on the Rate Confirmation Sheet and those on the bill of lading. Carrier is responsible for noting the temperature of the cargo at time of pick up on the bill of lading. If the temperature at the time of pickup is more than two degrees outside of the required temperature, Carrier should refuse the load. Carrier shall ensure the equipment is pre-cooled to the required temperature range prior to pickup and that the temperature range is maintained throughout the entire time of transport. Carrier shall (i) maintain written records demonstrating Carrier’s compliance with the temperature requirements; (ii) retain such records for at least two (2) years from the delivery date; and (iii) provide such records to Broker or its customer upon request.
(j) Seals. Carrier is responsible for attaching seals to all loads, except for shipments that are loaded and sealed by the Shipper. Carrier shall note the seal number on the bill of lading at the time of pick up, and Carrier shall maintain seal records for a minimum of three years for all shipments transported pursuant to this Agreement. Carrier shall immediately notify Broker of any seal that is found to be broken or missing. Carrier shall be liable for any shortages on a shipment with a missing or broken seal. In the case of a broken or missing seal, Broker’s customer has the right to deem the cargo contaminated and/or unsalvageable as their sole discretion.
(k) Notice of Release. Carrier shall provide Broker with written notice providing Broker with remittance instructions (“Notice of Release”) in the event Carrier enters into any factoring, assignment, pledge, hypothecation, or granting of a security interest in Carrier’s right to payment under this Agreement. Such assignment, factoring, or transfer shall not take effect until fifteen (15) days after Broker receives the Notice of Release. Any factoring, assignment, pledge, hypothecation, or granting of a security interest in Carrier’s right to payment under this Agreement shall in no event modify, limit, or terminate Broker’s or its Customer’s right to offset or recoup or claims of Broker or its Customer for offset, recoupment, loss, or damage to any cargo or other property, including personal injury, or any other claim which Broker or its Customer may have against Carrier for any reason. All of Broker’s and its Customer’s claims and rights are specifically preserved and shall be superior to any such assignee’s, factor’s, or creditor’s rights or claims to payment, regardless of any notice to Broker or its Customer to the contrary. Carrier shall notify any such factor, secured creditor, or assignee of Broker’s and its Customer’s rights in this regard. Further, if Broker discovers that Carrier has not provided a valid Notice of Release, Carrier shall be deemed in breach of this Agreement and Broker may at its sole discretion terminate this Agreement. Broker’s remittance of payment in accordance with any Notice of Release shall be deemed payment to Carrier in all regards and shall absolve Broker of any liability with respect to payment to Carrier for the services underlying such invoice. Should Carrier provide multiple or conflicting Notices of Release, Broker’s compliance with instructions in any Notice of Release shall absolve Broker of any liability with respect to amounts owed to Carrier for the services in question. Carrier shall defend, indemnify, and hold Broker harmless from any losses, fees, claims, liability, actions, or damages (including reasonable attorneys fees) arising from or related to such assignment, factoring, granting of a security interest, or transfer of rights by Carrier.
7. Carrier’s Liability for Physical Loss or Damage to Cargo. Carrier agrees that all cargo damage, loss, or theft will be deemed to have occurred in United States interstate traffic and Carrier’s liability shall be determined under the Carmack Amendment, 49 U.S.C. §14706, regardless of the actual jurisdiction of loss or performance. Carrier shall be responsible for the full actual damage or loss to all articles while in its or its contractor’s care, custody, or control. Unless otherwise agreed in writing, Carrier’s measure of damages shall be based upon the actual cost incurred by Broker’s customer as reflected on the original commercial invoice for the goods, including the replacement cost of such goods and any direct cost associated with packaging, handling, and shipment of those articles. Such liability shall also include amounts required for securement, cleanup, towing fees, and disposal of cargo and to inspect, test, segregate goods. Exclusions in Carrier’s insurance coverage, including but not limited to exclusions for unattended or unattached trailers, theft, refrigerator breakdown or lack of refrigerator fuel, shall not exonerate Carrier from this liability. Each of Broker’s shipper customers is a third-party beneficiary of this Section and is entitled to enforce the obligations of Carrier directly against Carrier as if such shipper was a party to this Agreement.
8. Loss and Damage Claims. Carrier shall comply with 49 C.F.R. §370.1 et seq. and any amendments and/or any other applicable regulations adopted by the FMCSA, for processing all loss and damage claims, which arise out of the discharge of Carrier’s duties and responsibilities hereunder. Carrier shall accept cargo claims from Broker or its customer within nine (9) months from the date of loss, damage, or delay, which for purposes of this Agreement shall be determined by the delivery date or, in the event of non-delivery, the scheduled delivery date. Carrier shall acknowledge receipt of a cargo claim within thirty (30) days and will promptly investigate the claim. Carrier will pay, decline, or make a firm compromise settlement offer within ninety (90) days of receipt of the claim. Any claims not resolved within such ninety (90) day period may be deducted by Broker from amounts otherwise due to Carrier. Civil actions against Carrier for loss, damage, or delay may be filed at any time within two (2) years following the date on which Carrier provides notice that it has disallowed any part of such claim. Carrier shall notify Broker immediately by telephone of any accidents, spills, theft, hijacking, delays or shortages which impair the safe and prompt delivery of goods in its control. Carrier agrees to waive any and all rights of salvage or resale of cargo, which may be determined in the sole discretion of Broker’s customers as salvageable or not and, if salvageable, the value of such salvage. Carrier specifically agrees not to dispose of damaged or contaminated shipments, nor to allow any third party, including insurance companies, to assume custody thereof, except such temporary custody as may be necessary, until Broker’s instructions are received. Carrier Shall not sell or dispose of any rejected cargo without the prior written consent of broker. Carrier shall immediately notify Broker in the event of an accident or if any shipment is lost, damaged, contaminated, delayed, or rejected. Carrier shall fully assist Broker in investigating any claim for cargo loss, damage, contamination, delay, or rejection. Without limiting Carrier’s contractual liability to Broker hereunder, Carrier acknowledges and agrees that Broker may, in its sole discretion, but is not required to, pursue claims for cargo loss and damage on behalf of its customer, and in such instances is not required to obtain an assignment of claim from its customer in order to pursue such a claim. Should Broker or its customer incur costs to collect amounts owed by Carrier pursuant to this article, in addition to any other amounts owed by Carrier hereunder, Carrier will be liable to reimburse any and all such costs including, but not limited to, reasonable attorney fees. If for any reason cargo is rejected by the consignee, Carrier must immediately notify Broker. Carrier shall maintain possession of the cargo until Broker provides written instructions for disposition of the rejected cargo, which may include but not be limited to returning the cargo to the point of origin, attempting redelivery at the same or different destination, or maintaining the cargo in storage. If Broker instructs Carrier to store the cargo, Carrier shall place the freight into storage in a public warehouse or other suitable storage facility under reasonable security. Carrier shall not sell or dispose of any rejected cargo without the prior written consent of Broker. Where the consignee has not refused delivery and Carrier is requested or required to temporarily store a shipment prior to completing delivery (for example, because the consignee is not ready to accept delivery, Carrier is required to re-deliver because Carrier missed a delivery appointment, or Carrier is otherwise unable to complete delivery to the consignee), such stored shipments shall be deemed in transit, and Carrier’s liability shall not revert to that of a warehouseman. Carrier shall transport all shipments without delay and shall immediately notify Broker of any circumstances that may cause a shipment to be delayed. Carrier shall be liable for any charges imposed by Broker’s customer or receiver that were caused by actions of the Carrier, including charges for unreasonable delay, early or late delivery.
9. Insurance. Carrier shall procure and maintain, at its sole cost and expense, the following insurance coverages, subject to the following minimum limits:
(a) General liability $1,000,000.00 per occurrence and $2 million annual aggregate. Broker and its shipper customer shall be named as additional insured on a primary and noncontributory basis on Carrier’s insurance certificate, with a waiver of subrogation;
(b) Auto liability $1,000,000.00 combined single limit per occurrence ($5 million combined single limit per occurrence if transacting hazardous materials including environmental damages due to release or discharge of hazardous substances). Broker and its customers shall be named as additional insured on a primary and noncontributory basis on Carrier’s insurance certificate, with a waiver of subrogation;
(c) All Risk Broad Form Motor Truck Cargo Legal Liability Coverage minimum $100,000.00 per Occurrence. Refrigeration Breakdown deductible shall be listed separately on certificate of insurance (if transporting refrigerated cargo). Carrier’s Motor Truck Cargo Legal Liability Policy shall name Broker and its customers as Loss Payee. Carrier’s certificate of insurance provided to Broker shall also include an endorsement that Carrier’s insurance shall be primary and non-contributory; and
(d) Workers’ Compensation with limits and benefits as required by law, and Employer’s Liability in the minimum amount of $1,000,000.00 per employee, per accident. When Carrier provides Services that involve origins and destinations solely within Canada, Carrier shall be current in its remittances to the appropriate Workers’ Compensation Board of the Carrier’s province, shall provide a certificate issued by the appropriate Workers’ Compensation Board of the Carrier’s province certifying that the Carrier is not delinquent and is current in its remittances to that authority, and shall have such other insurance or higher coverage limits required by applicable Canadian national or provincial law or regulation. Except for the higher coverage limits which may be specified above, the insurance policies shall comply with minimum requirements of the Federal Motor Carrier Safety Administration and any other applicable national, regulatory, or provincial agency. If Carrier is self-insured for one or more of the required policies, Carrier must provide evidence of such self-insurance, including proof of acceptance of the self-insurance by the applicable governmental agency. Carrier shall furnish Broker with certificate(s) of insurance showing that all policies or coverages described above have been procured, each of which certificates shall name Broker as Certificate Holder, and expressly assure that Broker shall be provided with thirty (30) days advance written notice from the insurance carrier of any material change, cancellation or termination of any such insurance policies or coverages. Nothing in this Agreement shall be construed to avoid or limit Carrier’s liability due to any exclusion or deductible in any insurance policy. All coverages set forth above shall be with reputable and financially responsible insurance companies (rated on the AMBEST of A – VII or better; provided that Broker may approve a lower rating in its sole discretion). If requested by Broker, Carrier shall provide copies of any insurance policy required herein.
10. Emissions Compliance. To the extent any goods are transported within the State of California, Carrier represents and warrants as follows:
(a) All trailers, including both dry-van and refrigerated equipment, and tractors that haul them within California are in compliance with the California Air Resources Board (ARB), including the Truck and Bus Regulation (TBR), Drayage Truck Regulation (DTR), and Heavy-Duty Vehicle Greenhouse Gas (Tractor-Trailer GHG) Emission Reduction Regulations;
(b) All refrigerated equipment is in full compliance with the California ARB Transportation Refrigeration Unit (TRU) Airborne Toxic Control Measure (ATCM) in-use regulations; and
(c) All TRUs are registered in ARB’s Equipment Registration (ARBER) system.
11. Indemnification Obligations. To the full extent permitted by law, Carrier shall defend, indemnify, and hold harmless Broker, its subsidiaries and affiliates, Broker’s customer, and its and their respective officers, directors, shareholders, employees, agents, shippers, successors, and assigns from and against any and all actual, potential, threatened, or pending claims, demand, actions, causes of action, liabilities, judgments, fines, penalties, orders, decrees, awards, cost, expenses, including attorneys’ fees, settlements, and claims (collectively “Claims”) arising out of or relating to Carrier’s performance of the Services, breach of this Agreement, or violation of any applicable law or regulation by Carrier, its personnel, agents, or contractors, and including but not limited to (i) claims involving loss or damage to property, or personal injury, including death, and (ii) employment-related claims asserted by Carrier’s personnel including for claims of joint or co-employment, employee benefits, or worker’s compensation. Notwithstanding the foregoing, Carrier’s defense, indemnification and hold harmless obligations will not apply to the extent that any indemnified claim is finally determined by a court of competent jurisdiction to have been caused by the negligence or willful misconduct of an indemnified party. To the extent permitted by applicable law, Carrier hereby expressly waives any exclusive remedy defense, including any such defense available under any workers’ compensation or other occupational accident statutory regime, to the extent that any such defense conflicts with Carrier’s obligations under this Section. Each of Broker’s shipper customers is a third-party beneficiary of this Section and is entitled to enforce the obligations of Carrier directly against Carrier as if such shipper was a party to this Agreement.
12. Phone Calls and Text Messages. Broker may contact Carrier via phone call and/or text messages at any phone number provided by Carrier to Broker. Carrier consents to receive such phone calls and text messages, whether sent through an automatic telephone dialing system or any other manner, and including for marketing or promotional purposes. Carrier may opt out of such text messages by contacting Broker, following the “opt-out” instructions in the text message, or editing its account settings. Message and data rates may apply.
13. Force Majeure. In the event that either Party is prevented from performing its obligations under this Agreement because of an occurrence beyond its control and arising without its fault or negligence, including without limitation, war, riots, rebellion, acts of God, acts of lawful authorities, fire, strikes, lockouts or other labor disputes by third parties, such failures to perform (except for any payments due hereunder) shall be excused for the duration of such occurrence. Economic hardships, including, but not limited to, recession and depression, shall not constitute Force Majeure events.
14. Independent Contractor. It is understood and agreed that the relationship between Broker and Carrier is that of independent contractor. None of the terms of this Agreement, or any act or omission of either Party shall be construed for any purpose to express or imply a joint venture, partnership, principal/agent, fiduciary, employer/employee relationship between the Parties. Carrier shall provide the sole supervision and shall have exclusive control over the operations of its employees, contractors, subcontractors, agents, as well as all vehicles and equipment used to perform its transportation services hereunder. Broker has no right to discipline or direct the performance of any driver and/or employees, contractors, subcontractors, or agents of Carrier. Carrier represents and agrees that at no time and for no purpose shall it represent to any party that it is anything other than an independent contractor in its relationship to Broker. Carrier assumes complete responsibility for all state and federal taxes, assessments, insurance (including, but not limited to, workers’ compensation, unemployment compensation, disability, pension and social security insurance) and any other financial obligations arising out of the transportation performed hereunder.
15. Non-Exclusive Agreement. Carrier and Broker acknowledge and agree that this contract does not bind the respective Parties to exclusive services to each other. Either party may enter into similar agreements with other carriers, brokers, or freight forwarders. Additionally, Broker makes no representation or commitment as to volume or revenue and Carrier makes no representation or commitment as to available capacity.