BROKER/SHIPPERAGREEMENT

1. Regulatory Authority.

Broker is duly registered with Federal Motor Carrier Safety Administration (“FMCSA”) as a property transportation broker pursuant to 49 U.S.C. § 13904 licensed under USDOT No. 2227954.

2. Term.

The term of this Agreement shall be one (1) year, commencing on the Effective Date (“Term”). This Agreement will automatically renew for consecutive one year Terms unless either Party cancels this Agreement, which may be cancelled by either Party at any time on at least thirty (30) days’ notice.

3. Shipper’s Obligations.

(a) Shipper shall pay Broker for the Services in accordance with Section 6 (Rates, Charges, and Payment Terms.).

(b) Shipper shall provide timely and accurate delivery instructions and description of the cargo, including any special handling or security requirements, for any shipment.

(c) Unless the Parties agree in writing that Carrier will load and secure the cargo, Shipper will load and secure the cargo safely, securely and in conformance with industry standards, and Shipper will be responsible for applying seals for any full truckload shipments.

(d) Unless the Parties otherwise agree, Shipper will not tender under this Agreement any Hazardous Materials, as defined in the Hazardous Materials Transportation

 

Act, 49 U.S.C. § 5101 et seq., as amended, and the regulations of the U.S. Department of Transportation made thereunder..

(i) Shipper will comply with all applicable federal, state, and local laws and regulations pertaining to the shipment of cargo covered by this Agreement.

4. Broker Obligations

(a) Broker shall perform the Services for Shipper in accordance with the terms of this Agreement.

(b) Broker will have and maintain broker authority from the FMCSA, or its predecessor or successor agencies.

(c) Broker’s responsibilities under this Agreement are limited to arranging for the transportation of Shipper’s freight with Carriers. Broker will not perform the Carrier Services itself, issue bills of lading, arrange, pack, load or possess the freight, or control the means or methods of the transportation. Broker is not engaged in the business of and will not act as a “Carrier,” “Motor Carrier,” or “Freight Forwarder,” as those terms are defined under 49 U.S.C. § 13102, and Broker is not engaged in the business of and will not act as a “Rail Carrier” as that term is defined under 49 U.S.C. § 11706.

(d) Broker shall pay Carrier for the Services in accordance with Section 6 (Rates, Charges, and Payment Terms.).

(e) Broker will comply with all applicable federal, state, and local laws and regulations pertaining to the brokerage services covered by this Agreement.

5. Carrier Obligations.

Broker warrants that it has entered into written contracts with each of the motor carriers transporting Shipper’s cargo (“Carriers”) that include the following provisions:

 

(a) Carrier shall furnish motor vehicles and equipment as may be necessary and suitable to safely perform the Carrier Services hereunder.

(b) Carrier shall maintain all equipment used by it hereunder in good, safe, clean and lawful operating condition at all times. Carrier’s equipment shall be odor-free, dry, and free of contamination and infestation.

(c) If pickups and deliveries are made by appointment and/or within specific time windows, Carrier will comply with such time requirements as may be specified. Additional costs or expenses for failure to comply, including detention and redelivery expenses, will be at Carrier’s risk and expense. The requirements of this subsection are subject to reasonable claims of force majeure.

(d) For the Term of this Agreement, Carrier will have and maintain operating authority from the FMCSA, or its predecessor or successor agencies, as a for-hire motor carrier to transport general commodities in interstate commerce and shall have and maintain all operating authority, registrations, and licenses that are required by law to perform the Carrier Services in each jurisdiction in which Carrier performs the Carrier Services.

(e) Carrier shall comply with all applicable law, including federal, state and local statutes, rules and regulations, now existing or hereinafter enacted.

(f) Carrier shall maintain the following insurance:

(i) Workers’ compensation insurance on all employees, as required by applicable state law,

(ii) Automobile liability insurance with limits of liability of not less than $1,000,000 combined single limit per occurrence for bodily injury and property damage,

(iii) Cargo insurance to cover damage to or loss of cargo in the amount of $100,000 per occurrence, and

(iv) General liability insurance with limits of liability of not less than $1,000,000 per occurrence.

(g) Carrier and Shipper each expressly waive all provisions of Chapters 137 and 147 and any other provisions of Subtitle IV, Part B of Title 49, United States Code, to the extent that such provisions are in conflict with express provisions of this Agreement, but not the provisions of that subtitle relating to registration, insurance, or safety fitness.

 

6. Rates, Charges, and Payment Terms.

 

(a) The rates for transportation, including all accessorial charges and fuel charges, are set forth in Appendix A. Appendix A, also sets forth miscellaneous terms, conditions and business rules for specific Services, to the extent applicable. Valid charges will include any additional charges from carrier arising after receipt of the cargo, for benefit of the cargo, protecting any other property from the cargo, or arising due to any force majeure event.

(b) Broker will invoice Shipper for Carrier’s freight charges and Broker’s commissions or other fees.

(c) Shipper will pay Broker’s invoice within fourteen (15) days of receipt of the invoice.

(d) If Shipper does not pay the invoiced amounts, Broker may commence a civil action proceeding to recover such invoiced amounts no later than eighteen (18) months following delivery or tender of delivery of the shipments involved. If Broker alleges undercharges, or Shipper alleges overcharges, duplicate payment, or over collection, notice of such claims or unidentified payments may be given no later than 180 days following receipt of the invoice and a civil action may be filed no later than eighteen (18) months following delivery or tender of delivery of the shipments involved. The processing, investigation, and disposition of overcharge, unidentified payment, duplicate payment, or over collection claims shall be governed by 49 CFR Part 378, with Broker having the rights and obligations of a carrier.

 

7. Freight Documentation.

(a) If requested by Shipper, Broker will provide Shipper with proof of delivery and the bill of lading or receipt for each load carried by Carrier. Inclusion of Broker’s name on the bill of lading or receipt shall not change Broker’s status as a property broker and not as a carrier or shipper. The terms and conditions of any freight documentation used by Broker’s carrier selected by Broker may not supplement, alter, or modify the terms of this Agreement.

(b) Either party, at its option, may supply any document required by or referenced in this Section in either paper or electronic form (including, but not limited to, an electronically imaged, faxed, or photocopied), and any such version shall be sufficient for all purposes under this Agreement.

8. Bond.

Broker shall maintain a surety bond/trust as required by federal law (currently governed by 49 CFR 387.307).

9. Cargo Liability.

(a) Shipper will bring all cargo loss or damage claims directly against the Carrier that carried the cargo, and not against Broker. Broker will have no liability for cargo loss or damage.

(b) Except as otherwise provided herein, the Carrier’s liability for cargo loss or damage shall be governed by the provisions of 49 U.S.C. § 14706, except that Carrier’s liability will be limited to $100,000 per shipment, unless otherwise agreed to in writing by Shipper and Broker on a per-shipment basis prior to the applicable shipment.

(c) Claims for loss of or damage to cargo shall be filed and processed in accordance with 49 C.F.R. Part 370 as in effect on the Effective Date of this Agreement.

(d) Claims must be filed within nine (9) months, and civil actions must be commenced within two (2) years, in accordance with 49 U.S.C. § 14706(e).

10. Indemnification.

(a) Shipper shall indemnify, defend, and hold harmless Broker from any Claims against or incurred by Broker arising out of or related the following:

(i) A breach of any representation, warranty, covenant or agreement contained in this Agreement; or

(ii) Any negligent or more culpable action or inaction of Shipper, to the extent of its negligence or greater culpability.

(b) As used in this Section:

(i) Claim includes all claims, demands, obligations, charges, proceedings, actions, causes of actions, suits, liabilities, losses, damages, fines, judgments, penalties, fines, payments, costs and expenses (including reasonable legal fees)

(ii) References to Broker include its parent, subsidiaries and affiliates and their respective officers, agents, employees, successors and assigns.

 

11. Confidentiality; No Use of Name.

(a) Except to the extent required by law, Shipper shall not disclose to third parties (other than to freight bill auditors, prospective capital providers, and outside professionals, if such parties agree to similar confidentiality terms) either the terms of this Agreement or any confidential or proprietary information Shipper learns about Broker in the course of performing Services under this Agreement, including but not limited to software, business methods, customer lists, and carrier lists, or the rates, valuation, origin, destination and consignee identity for any shipment within the scope of the Services. Shipper acknowledges that all right, title, and interest in and to Broker’s confidential information, including the right to produce, extract, or exhibit the confidential information to any third party and any intellectual property rights relating to the confidential information, exist in Broker only.

(b) Shipper may not divulge nor use Broker’s name, trademarks, or trade names, or those of its subsidiaries or affiliates, in any manner, especially advertising, without Broker’s expressed written consent, which may be withheld in Broker’s sole discretion.

12. Back-Solicitation.

(a) During the Term of this Agreement, and for twenty-four (24) months thereafter, Shipper shall refrain from engaging any Carrier which:

(i) Performs services for Shipper arranged by Broker under this Agreement; and

(ii) Was not directly engaged by Shipper during the six (6) months prior to the Effective Date.

(b) A breach of subsection (a) will entitle Broker to a fee of fifteen percent (15%) of all money paid by Shipper to Carrier as liquidated damages for the commissions and/or compensation that Broker would have received if it had it arranged for the movement of the freight.

13. Governing Law.

(a) This Agreement shall be governed by and construed and interpreted in accordance with the laws of Delaware, OH (other than provisions addressing conflicts of laws), except where this Agreement references federal statutes, and does not modify the rights or obligations thereunder, which shall be governed by and construed and interpreted in accordance with federal law.

(b) For the avoidance of doubt, the law elected by the parties herein shall apply even to transportation to, from, or within Mexico or Canada.

14. Dispute Resolution.

(a) Except as otherwise expressly provided in subsection (b) below, any controversy or claim between the Parties arising out of or relating to this Agreement or the breach thereof, shall be settled through binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association Exclusive venue for such arbitration shall be Delaware, OH. Judgment on the award rendered by the arbitrator(s) may be entered in any court of competent jurisdiction.

(b) Notwithstanding subsection (a):

(i) Neither Party is precluded from seeking injunctive or similar equitable relief in the courts of any jurisdiction including, but not limited to, temporary restraining orders and preliminary injunctions, to protect its rights, including, without limitation, as set forth in Sections 11 (Confidentiality; No Use of Name) and 12 (Back-Solicitation); and

(ii) Claims under Section 9 (Cargo Liability) are between Shipper and Carrier and expressly excluded from this Section.

15. Independent Contractor.

(a) Broker at all times will be acting as an independent contractor, and not an employee, agent, or principal of Shipper. Shipper authorizes Broker to enter into arrangements with Carriers whereby Shipper’s liability is limited consistent with Section 9 (Cargo Liability) as well as any other terms and conditions that are consistent with this Agreement.

(b) Carrier is an independent contractor, and not an employee, agent or principal of Broker.

16. Carrier Data

(a) To the extent Carrier shares any data captured by its Electronic Logging Device or Automatic Onboard Recording Device (as defined in the rules promulgated by the Federal Motor Carrier Safety Administration) or other geolocation and asset tracking technology (“Carrier Data”) with Broker and Shipper, Shipper will only use Carrier Data for purposes of completing shipments for Carrier and for no other purpose.

 

17. Notice.

Any notice sent under this Agreement must be sent by a nationally recognized overnight courier with delivery confirmation and sent to:

Broker:

Address: 222 East William ST. Delaware, OH 43015. 
Email: cmainfo@centralmarketing.com 

Shipper

Notices shall be considered to have been received on the date of delivery confirmation, unless the notice is emailed in addition to being sent by overnight courier, in which case it will be deemed delivered on the date sent via email. Each Party may change its designated contact, or update the contact information for such individuals, by notice to the other Party.

18. Successors and Assigns.

This Agreement shall be binding on, and shall inure to the benefit of, both Parties as well as their respective successors and permitted assigns. Shipper may not assign, transfer, or delegate any or all of its rights or obligations under this Agreement unless prior written notice to Broker is provided and the assignment, transfer, or delegation is to a successor of all or substantially all of the assets of such party through merger, reorganization, consolidation or acquisition. No assignment shall relieve Shipper of any of its obligations hereunder.

19. Priority of Documents.

The terms of this Agreement, and any appendix or amendment hereto, will be interpreted, to the furthest extent possible, to be compatible with each other. In the event of a direct irreconcilable conflict, the following order of priority will control:

(a) Any amendment;
(b) The body of this Agreement;
(c) Any appendix.

20. Miscellaneous.

(a) Amendments. Amendments to this Agreement must be in writing and signed by both Parties.

(b) Severability. To the extent that any provision of this Agreement may be held to be invalid or unenforceable by a court of competent jurisdiction, such provision shall become ineffective as to all matters within the jurisdiction of that court. The court’s holding, however, shall not be treated as affecting the validity or enforceability of any other provision of this Agreement, nor as affecting the validity or enforceability of any part of this Agreement in other jurisdictions.

(c) Waiver. The failure of a Party to exercise any provision of this Agreement, or delay in exercising any provision of this Agreement, will not operate as a waiver of provision. Any waiver must be expressly stated in writing, signed by both parties, and such express waiver will not act as a future waiver unless otherwise expressly stated.

(d) Survival. Notwithstanding the termination or expiration of this Agreement, and except as otherwise stated in this Agreement, those obligations contained herein that by their terms or nature are intended to survive such termination or expiration shall do so including, as an example, and without limitation, Sections 10 (Indemnification.), 11 (Confidentiality), and 12 (Back-Solicitation).

(e) Cumulative Remedies. Unless otherwise expressly set forth herein, all remedies available to either party for breach of this Agreement are cumulative and may be exercised concurrently or separately, and the exercise of any one remedy shall not be deemed an election of such remedy to the exclusion of other remedies.

(f) Captions. The captions and headings set forth in this Agreement are for convenience only. They shall not be considered a part of this Agreement, nor affect in any way the meaning of its terms and conditions.

(g) Entire Agreement. This Agreement represents the entire agreement and understanding of the Parties with regard to its subject matter. No prior understandings or agreements of the Parties, whether written or oral, nor any documents not specifically incorporated into this Agreement, nor any course of conduct of the Parties before or after the Effective Date of this Agreement, shall have the effect of modifying the Parties’ rights and obligations under this Agreement in any way.

(h) Counterparts. This Agreement may be executed in one or more counterparts, any and all of which shall constitute one and the same instrument. This Agreement may be signed by the either Party via an electronic signature, which includes any electronic sound, symbol, or process attached to or logically associated with a record and executed and adopted by a party with the intent to sign such record.

(Signatures appear on following page)