155 ENTERPRISE DR
WENTZVILLE, MO 63385

A. During the term of this Agreement, CONTRACTOR shall, as an independent contractor, provide CARRIER with professional truck driving services and other incidental transportation related services, and shall provide CARRIER with the use of the "Equipment" as defined below. If applicable, 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 thereunder shall expire upon the written notice of termination regardless of whether CONTRACTOR submits the receipt required under this provision.

B. CONTRACTOR either has a bona fide leasehold interest, or owns, motor vehicle(s) and equipment described below (the “Equipment”) and desires to operate said vehicle(s) and equipment and perform transportation services as an independent contractor on behalf of Rapid Response, Inc.

1. TERM AND RELATIONSHIP

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 provided in Section 18.

It is expressly understood and agreed that CONTRACTOR is an independent contractor for all purposes of this Agreement, and is not, in any way, an agent of CARRIER. The parties agree as follows:

(a) This Agreement is between co-equal and independent business enterprises that are separately owned and operated. The parties intend this Agreement to create the relationship of principal and independent contractor, and expressly deny any intent to create an employee and employer relationship.

(b) The parties are not employees, agents, joint venturers or partners of each other for any purpose, including but not limited to the Federal Insurance Contributions Act, the Social Security Act, the Federal Unemployment Tax Act, income tax withholding requirements, state personal income tax withholding, state unemployment taxes, state disability insurance and all other federal, state and local laws, rules and regulations.

(c) None of the provisions of this Agreement shall be interpreted to create the relationship of employer and employee between the parties. CARRIER shall have no right to, and shall not, control the manner or prescribe the method of accomplishing those services which shall be contracted to, and performed by, CONTRACTOR pursuant to this Agreement, and the general public and all governmental agencies regulating such activities shall be so informed. Those provisions of the Agreement reserving ultimate authority in CARRIER have been inserted solely to achieve compliance with federal, state, or local laws, regulations, and interpretations thereof, including the leasing regulations.

(d) Neither Party shall have the authority to bind the other by contract. CONTRACTOR has no authority whatsoever−implied, apparent, express, or otherwise−to bargain on behalf of, or bind CARRIER to, an agreement with any third party. CONTRACTOR is in no manner CARRIER's agent.

(e) Any act or attempt by CONTRACTOR to bind CARRIER to any contract shall be null and void, and any liability or obligation created by such act or attempt shall be CONTRACTOR's solely.

(f) CONTRACTOR agrees that it will make clear to any third-party who attempts to negotiate a contract with CARRIER via CONTRACTOR that CONTRACTOR has no authority to negotiate such a contract.

(g) 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 any third party, including but not limited to, 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.

(h) CONTRACTOR 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.

(i) CONTRACTOR has full control of 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.

(j) To the extent applicable, CONTRACTOR shall provide CARRIER with a current list of all drivers and laborers that CONTRACTOR may use to perform the Agreement, and that CONTRACTOR shall obtain CARRIER'S prior written approval for any new or replacement drivers or laborers before using them to operate the Equipment or provide services under the Agreement.

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 shall 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. CONTRACTOR shall not use the Equipment for any purpose other than providing services under the Agreement, and that CONTRACTOR shall not sublease, assign, or otherwise transfer the Equipment or any interest therein to any third party without CARRIER's prior written consent.

4. OPERATION OF VEHICLE AND EQUIPMENT

CONTRACTOR recognizes that CARRIER's separate and distinct business of providing motor carrier freight transportation 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:

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.

b. 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. CONTRACTOR shall provide CARRIER with copies of all driver logs and supporting documents within 24 hours of completing each trip.

c. 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.

d. That CONTRACTOR will pick up, transport, and deliver punctually all goods carried by him under this Contract to such destinations as shown on freight bills, unless otherwise instructed by CARRIER.

e. 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. CONTRACTOR agrees to comply with all State imposed speed limits except that CONTRACTOR will at no time exceed 70 miles per hour while operating the Equipment or otherwise performing services for CARRIER (including where higher speed is legally permitted

f. To carry only those shipments authorized by law in or upon the Equipment being operated under this Contract and none other.

g. 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.

h. 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.

i. 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.

j. 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. CONTRACTOR shall notify CARRIER in writing within 24 hours of any change in CONTRACTOR's operating authority, USDOT number, insurance coverage, or driver qualification status, and that failure to do so may result in termination of the Agreement.

 

5. OPERATIONAL EXPENSES

a. Operating Expenses. CONTRACTOR shall, at its sole cost and expense, provide all the Equipment ready to operate and fully roadworthy, including the necessary licenses, permits, cab cards, state base plates and shall furnish all necessary oil, fuel, tires, and other parts, supplies and equipment necessary or required for the safe and efficient operation and maintenance of the Equipment, including repairs for the operation of such Equipment. CONTRACTOR shall pay all expenses incident to the operation of the Equipment, including, but not limited to, empty mileage, lumper expenses, highway use taxes, weight taxes, state property or indefinite situs taxes, fuel taxes, registration fees, ferry and toll charges, and detention and accessorial charges not collected by CARRIER because of CONTRACTOR's failure to provide the required documentation.

b. Maintenance and Inspection. CONTRACTOR, at its sole cost and expense, shall maintain the Equipment in safe condition and in complete compliance with all laws and regulations of the states in which CONTRACTOR operates and the DOT. In order to ensure compliance with all DOT regulations, CONTRACTOR shall, at its sole cost and expense, make the Equipment available for inspection by CARRIER upon reasonable request by CARRIER. CONTRACTOR shall, at its sole cost and expense, have the Equipment inspected annually, as required by 49 C.F.R. § 396.17, at CARRIER's maintenance facility or at another maintenance facility which CARRIER may, in its sole discretion, authorize. CONTRACTOR shall, as directed by CARRIER, forward to CARRIER all inspection, maintenance and repair records for the Equipment.

c. Fines. CONTRACTOR or its drivers (as professional drivers engaged in a separate and distinct profession) agree to pay all fines, including but not limited to parking and traffic fines and penalties, imposed for violation of any law or regulation by the state or any locality in which CONTRACTOR operates, or the DOT, where such violation results, at least partially, from the acts or omissions of CONTRACTOR.

d. Overweight and Oversized Shipments. CONTRACTOR or CONTRACTOR's drivers (as professional drivers engaged in a separate and distinct profession) shall have the duty to determine that all shipments are in compliance with the size and weight laws of the states in which or through which the Equipment will travel and to notify CARRIER if the vehicle is overweight, oversized or in need of permits before commencing the haul. CONTRACTOR shall pay, or reimburse CARRIER, for any costs or penalties due to CONTRACTOR's failure to weigh each shipment or to notify CARRIER that the vehicle is overweight, oversized or in need of permits.

b. Maintenance and Inspection. CONTRACTOR, at its sole cost and expense, shall maintain the Equipment in safe condition and in complete compliance with all laws and regulations of the states in which CONTRACTOR operates and the DOT. In order to ensure compliance with all DOT regulations, CONTRACTOR shall, at its sole cost and expense, make the Equipment available for inspection by CARRIER upon reasonable request by CARRIER. CONTRACTOR shall, at its sole cost and expense, have the Equipment inspected annually, as required by 49 C.F.R. § 396.17, at CARRIER's maintenance facility or at another maintenance facility which CARRIER may, in its sole discretion, authorize. CONTRACTOR shall, as directed by CARRIER, forward to CARRIER all inspection, maintenance and repair records for the Equipment.

c. Fines. CONTRACTOR or its drivers (as professional drivers engaged in a separate and distinct profession) agree to pay all fines, including but not limited to parking and traffic fines and penalties, imposed for violation of any law or regulation by the state or any locality in which CONTRACTOR operates, or the DOT, where such violation results, at least partially, from the acts or omissions of CONTRACTOR.

d. Overweight and Oversized Shipments. CONTRACTOR or CONTRACTOR's drivers (as professional drivers engaged in a separate and distinct profession) shall have the duty to determine that all shipments are in compliance with the size and weight laws of the states in which or through which the Equipment will travel and to notify CARRIER if the vehicle is overweight, oversized or in need of permits before commencing the haul. CONTRACTOR shall pay, or reimburse CARRIER, for any costs or penalties due to CONTRACTOR's failure to weigh each shipment or to notify CARRIER that the vehicle is overweight, oversized or in need of permits.

f. Fuel Taxes. For the purposes of computing and paying all state fuel taxes owed for the Equipment, CARRIER shall issue CONTRACTOR a fuel card to be used for all fuel purchases. All fuel charges and state fuel taxes will be charged back to CONTRACTOR as allowed for under this Agreement. In the event CONTRACTOR or its drivers fail to use CARRIER's fuel card, CONTRACTOR shall be responsible for providing CARRIER with an accurate accounting of all fuel purchases and miles traveled for the purposes of computing state fuel tax liability, and CONTRACTOR shall provide CARRIER with all original fuel receipts.

6. USE OF CARRIER'S TRAILER EQUIPMENT

In the event that the Equipment shall consist of a semi-trailer(s) leased from CARRIER, CONTRACTOR agrees that he will use said semi-trailer(s) solely in the performance of his obligations under this Contract and for no other purpose. CONTRACTOR additionally covenants as follows:

(a) CONTRACTOR agrees to keep and maintain said semi-trailer in the same good repair and condition as when delivered to him, normal wear and tear excepted, and to keep the same washed, greased and cleaned as needed. In the care and maintenance of semi-trailer, CONTRACTOR agrees to comply with rules and regulations of CARRIER and DOT with respect to said maintenance and care. In the event that CONTRACTOR shall have faithfully and diligently complied with said regulations, CARRIER agrees to reimburse CONTRACTOR for such care and maintenance and in such amounts as are agreed to by and between CONTRACTOR and CARRIER. The term "normal wear and tear" shall not apply to tires on said equipment, which are a result of CONTRACTOR's own negligence. In the event that any damage shall occur to CARRIER'S equipment while in the possession of the CONTRACTOR, CONTRACTOR agrees to pay the costs for any and all damages. CONTRACTOR agrees to return any trailer, trailer equipment of any kind or purpose, or chassis provided for its use by CARRIER in the same good condition as received by CONTRACTOR, reasonable wear and tear excepted, along with any and all other equipment and property belonging to CARRIER immediately upon CARRIER's request or upon termination of this Agreement. In the event the trailer is not in the same condition, normal wear and tear excepted, as it was delivered by CARRIER, CONTRACTOR hereby authorizes CARRIER to restore the trailer to proper condition and to charge back to CONTRACTOR the costs of such repairs or reconditioning. In the event CONTRACTOR for any reason fails to comply with this provision and return CARRIER's trailer, CONTRACTOR agrees to reimburse CARRIER for all reasonable expense and costs, including attorney fees, incurred by CARRIER in recovery of its trailer or property from CONTRACTOR or its drivers. CONTRACTOR agrees that in the event it is necessary for CARRIER to enter upon private property or remove private property in order to recover its trailer and property, CONTRACTOR does hereby irrevocably grant CARRIER or its duly authorized agents, permission to do so and further agrees to indemnify and hold harmless CARRIER, and its duly authorized agents, from any form of liability whatsoever in connection with such repossession.

(b) CONTRACTOR shall be liable for, and pay, the entire amount for each incident involving direct, indirect and consequential damage, including but not limited to, towing charges, replacement costs for a total loss, arising out of, or in connection with, CONTRACTOR's use of CARRIER's trailers, CARRIER's customer's trailers, other CARRIER equipment, or equipment of any other carrier. Before deducting any such damage from CONTRACTOR's compensation, CARRIER shall provide

CONTRACTOR with a written explanation and itemization of such damage. CONTRACTOR agrees and warrants that any trailer provided for use by CARRIER will only be used by CONTRACTOR and its drivers to transport shipments tendered to CONTRACTOR by CARRIER.

(c) CONTRACTOR acknowledges that by using CARRIER'S trailer equipment, CONTRACTOR is in no way acting as an agent or employee of CARRIER, and shall not represent itself as such.

7. CARGO LOSS AND DAMAGE CLAIMS

CONTRACTOR shall immediately report all cargo claims, including all shortages, overages or other exceptions to the cargo, to CARRIER. CONTRACTOR shall be liable for, and CARRIER shall charge back to CONTRACTOR the total amount of each cargo claim, including but not limited to, delay, shortages, misdelivery, and any direct damage claim relating to lost, damaged or contaminated loads, arising out of, or in connection with CONTRACTOR's services. Before deducting any cargo claim from CONTRACTOR's compensation, CARRIER shall provide CONTRACTOR with a written explanation and itemization for each such claim. In any event, any damage to cargo arising out of CONTRACTOR's services shall be the sole liability of CONTRACTOR, and not the liability of CARRIER or CARRIER's customers. CONTRACTOR agrees to indemnify and hold CARRIER and CARRIER's customers harmless from and against any liability, including legal fees, resulting from damage to cargo caused by CONTRACTOR's services.

8. COLLECTIONS AND REMITTANCES

CONTRACTOR will collect in cash or certified check or money order payable to CARRIER monies due CARRIER for the transportation of goods, wares, and merchandise, together with any and all charges arising out of or in connection with said transportation, storage and packing, in accordance with bill of lading, shipment contract, or other written instructions covering each shipment transported hereunder.

CONTRACTOR will remit by Express Mail, UPS, Federal Express, etc., all collected monies, together with weight tickets and properly signed bills of lading and inventories to the offices of Rapid Response, Inc. at 155 Enterprise Drive, Wentzville, Missouri 63385 and in no case later than twenty-four (24) hours after making collection. CONTRACTOR is not authorized to extend credit or make any adjustment in any of the terms of collections except upon prior written authorization from CARRIER. CONTRACTOR agrees that no shipment hereunder will be delivered until all C.O.D. charges have been collected in cash, certified check, or money order, unless otherwise instructed. Any losses resulting from thefts, defalcation, or failure by drivers or other employees of CONTRACTOR relative to the return and transmittal of monies so collected shall be borne solely by CONTRACTOR.

9. 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. CARRIER may, in its sole discretion, withhold, offset, or deduct from any amounts owed to CONTRACTOR by CARRIER or its affiliates, any amounts for which CARRIER or its affiliates may be liable due to CONTRACTOR's breach or default of this Agreement or any other agreement between the parties.

 

10. NON-EXCLUSIVE ARRANGEMENT

a. The parties recognize that CARRIER and CONTRACTOR are, or may be, engaged in similar delivery service arrangements with other entities. Nothing in this Agreement shall preclude CONTRACTOR from doing business with other transportation providers. Absent any legal restriction, CONTRACTOR shall have the right to perform other delivery services for other companies, entities and customers.

b. CONTRACTOR is not prohibited from entering into separate agreements to provide equipment not identified as Equipment above or in an attachment, and to provide other professional truck drivers not used to service this Agreement, to other motor carriers.

c. CONTRACTOR may refuse any specific shipment offered by CARRIER. Following acceptance of a shipment, however, CONTRACTOR may not refuse to perform a delivery unless expressly waived by both parties.

11. 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 computed- generated 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.

 

12. 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.

13. 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.

14. ESCROW FUND

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

15. INDEMNIFICATION

(a) CONTRACTOR, agrees, to the greatest extent permitted by law, to indemnify, defend and hold CARRIER and CARRIER'S customers 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, including any claims from CARRIER's customers and its customers' end users, including but not limited to Ashley Furniture, La-Z-Boy, American Signature, and Value City. In addition to pursuing any other remedies available under this Agreement or applicable law,

CARRIER is hereby authorized to deduct any amount owed under Section 15 to CARRIER or its customers from any monies owed to CONTRACTOR by CARRIER.

(b) CONTRACTOR shall be responsible for, and shall indemnify and hold harmless CARRIER and its customers from, all costs of CONTRACTOR's business, including but not limited to, the expense and responsibility for any and all applicable insurance, local, state or federal licenses, permits, taxes and assessments of any and all regulatory agencies, boards or municipalities.

(c) For the avoidance of doubt, the indemnification obligations set forth in Section 15(a) and Section 15(b) shall survive the termination of this agreement.

16. CARRIER'S RESPONSIBILITIES

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(c1) 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.

b. 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 acknowledges that its use of the Equipment bearing CARRIER's name, lettering, advertisement, slogans, or designs, in no way gives CONTRACTOR authority to enter into any contracts on behalf of CARRIER or in any act as CARRIER's agent. 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.

 

17. 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.

18. TERMINATION

a. This Contract may be terminated as follows:

1. CARRIER may upon at least fifteen (15) days written notice to CONTRACTOR, 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.

5. CARRIER may, in its sole discretion, terminate the Agreement immediately and without notice, if CONTRACTOR or any of its drivers or laborers engages in any conduct that is dishonest, fraudulent, illegal, unethical, or detrimental to CARRIER's reputation, business, or interests, or that violates CARRIER's policies or procedures, or that exposes CARRIER to any liability, risk, or harm.

b. 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 material 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.

 

c. 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 and/or 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.

19. 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:

155 ENTERPRISE DR. WENTZVILLE, MO 63385

20. 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, then the parties mutually agree to attach and incorporate each such contract, specifying all terms thereof, to this Agreement as a separate addendum.

21. 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.


22. 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.

23. 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, know-how 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.

CONTRACTOR agrees to not to disclose the terms of this Agreement or any other contract, agreement or form belonging to or provided by the CARRIER to any person, firm, corporation, association, or other entity for any reason or purpose whatsoever without CARRIER's prior written consent.

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 CONTRACTOR.



24. NON-SOLICITATION

At all times during the term of this Agreement and for a period of one (1) year after its termination or expiration, CONTRACTOR shall not directly or indirectly solicit or encourage any current employee, independent contractor, client, or customer of CARRIER to end its business or employment relationship with CARRIER.

25. 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.

26. 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.

27. 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, and the CONTRACTOR must reimburse the CARRIER for such legal fees within 30 days after the judgment.

28. 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.

29. 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 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.

 

30. 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.

[Signatures on Following Page]

IN WITNESS WHEREOF, the parties hereto have executed this Contract on the date hereinabove set forth.

(b) Additional Compensation. [NOTE: INSERT ANY ADDITIONAL COMPENSATION TO BE PAID TO CONTRACTOR, INCLUDING FUEL SURCHARGES]

1. PERCENTAGE-BASED COMPENSATION. Unless otherwise agreed to in writing between the parties, CARRIER shall pay CONTRACTOR based on the following amounts:

(a) Percentage Compensation. CONTRACTOR shall be paid the following amounts for all dispatched miles as determined by the most recent edition of CARRIER’s Mileage Guide. CONTRACTOR shall not be compensated for any out of route miles, or bobtail or deadhead miles, unless such miles are expressly authorized by CARRIER.

2. CHARGE BACK ITEMS. The following items shall be charged back and deducted from CONTRACTOR’s compensation or from CONTRACTOR’s escrow funds in the event that CONTRACTOR’s compensation is insufficient:

CONTRACTOR agrees that CARRIER may charge back to CONTRACTOR any other expenses or cost incurred by CARRIER for which CONTRACTOR is responsible for under this Agreement or as otherwise agreed to by the parties. CONTRACTOR hereby waives any objection to any charge back item unless CONTRACTOR notifies CARRIER of CONTRACTOR’s disagreement with such charge back within thirty (30) days of the charge back.

3. CHANGES IN EXISTING DEDUCTION ITEMS. If an item in any of the above columns will be changing, CONTRACTOR shall be so notified by personal delivery, fax, or other written notice. In any event, CONTRACTOR shall not be subject to any such change until ten (10) calendar days after such notice or such later time as is set forth in the notice. CONTRACTOR’s failure, by the end of ten calendar days after such notice, to notify CARRIER of any objection to the change shall constitute CONTRACTOR’s express consent and authorization to CARRIER to implement the change and modify accordingly the deductions from CONTRACTOR’s

Settlement Compensation, beginning immediately after the ten-day period. Such modified amounts shall replace and supersede those shown in the table in Section 2 above. If CONTRACTOR fails to notify CARRIER of CONTRACTOR’s objection within the ten-day period – or if CONTRACTOR notifies CARRIER of CONTRACTOR’s objection within the ten-day period and the parties are then unable to resolve the matter, the parties shall each have the right to terminate the Agreement immediately thereafter. Once the change becomes effective, CONTRACTOR still retains the right to terminate the Agreement in accordance with the procedures set forth in Section 2 of the Agreement (although CONTRACTOR shall remain subject to the change until the effective date and time of CONTRACTOR's termination

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

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 coverages 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 the Equipment 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.

(g) OTHER INSURANCE. In addition to the insurance coverages 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 coverages 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 coverages required above have been procured from A.M. Best “A” rated insurance carriers, that the coverages 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.

5. AVAILABILITY OF INSURANCE FACILITATED BY CARRIER. CONTRACTOR may, if it so chooses by initialing one or more boxes in the right-hand column of the attached "CERTIFICATE OF INSURANCE," authorize CARRIER to facilitate, on CONTRACTOR’S behalf, the insurance coverages required or made optional by this Agreement. In any such case, CARRIER shall deduct, from CONTRACTOR settlement compensation, amounts reflecting all of CARRIER’s expense and cost in obtaining and administering such coverage. In addition, if CONTRACTOR fails to provide proper evidence of the purchase or maintenance of the insurance required above, then CARRIER is authorized but not required to obtain such insurance at CONTRACTOR's expense and deduct, from CONTRACTOR's settlement compensation,

amounts reflecting all of CARRIER's expense in obtaining and administering such coverage. CONTRACTOR recognizes that CARRIER is not in the business of selling insurance, and any insurance coverage requested by CONTRACTOR from CARRIER is subject to all of the terms, conditions, and exclusions of the actual policy issued by the insurance underwriter. CARRIER shall ensure that CONTRACTOR is provided with a certificate of insurance (as required by 49 C.F.R. § 376.12(j2 for each insurance policy under which the CONTRACTOR has authorized CARRIER to facilitate insurance coverage from the insurance underwriter (each such certificate to include the name of the insurer, the policy number, the effective dates of the policy, the amounts and types of coverage, the cost to CONTRACTOR for each type of coverage, and the deductible amount for each type of coverage for which CONTRACTOR may be liable), and CARRIER shall provide CONTRACTOR with a copy of each policy upon request.

6. CHANGES IN COST OR OTHER DETAILS OF COVERAGES. If CARRIER is facilitating any insurance coverages for CONTRACTOR pursuant to Section 5 of this Appendix and the cost to CONTRACTOR for, or other details of, a coverage changes from the information listed in the attached "CERTIFICATE OF INSURANCE", CONTRACTOR will be so notified by personal delivery, fax, or other written notice. In any event, CONTRACTOR shall not be subject to any such change until ten (10) calendar days after such notice or such later time as is set forth in the notice. CONTRACTOR’s failure, by the end of ten (10) calendar days after such notice, to notify CARRIER of any objection to the change shall constitute CONTRACTOR's express consent and authorization to CARRIER to implement the change and modify accordingly the deductions from CONTRACTOR’s settlement compensation, beginning immediately after the 10-day period. Such modified amounts shall replace and supersede those shown in the Certificate of Insurance and CARRIER shall not have an obligation to also provide a revised Certificate of Insurance. If CONTRACTOR fails to notify CARRIER of any objection within the 10-day period -- or if CONTRACTOR notifies CARRIER of its objection within the 10-day period and CONTRACTOR and CARRIER are then unable to resolve the matter to their mutual satisfaction -- CONTRACTOR and CARRIER shall each have the right to terminate this Agreement effective immediately upon the change becoming effective (although CONTRACTOR shall remain subject to the change until CONTRACTOR’s termination's effective date and time

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

CONTRACTOR hereby requests CARRIER, through its insurer, to facilitate on CONTRACTOR’s behalf (if they are available) the insurance coverages CONTRACTOR has selected by placing CONTRACTOR’s initials in the right-hand column below:

INITIAL "YES" TO REQUEST COVERAGE

INITIAL "YES" TO REQUEST COVERAGE

INITIAL "YES" TO REQUEST COVERAGE

INITIAL "YES" TO REQUEST COVERAGE

INITIAL "YES" TO REQUEST COVERAGE

INITIAL "YES" TO REQUEST COVERAGE

INITIAL "YES" TO REQUEST COVERAGE

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

As authorized by Paragraph 14 of this Agreement, CARRIER shall establish and administer an Escrow Fund, which CONTRACTOR and CARRIER agree shall be governed by the following terms and conditions:

2. SPECIFIC ITEMS TO WHICH ESCROW FUND MAY BE APPLIED. The Escrow Fund shall be held by CARRIER for the purpose of insuring compliance with the provisions of the Agreement. The specific items to which the Escrow Fund shall apply are all advances, expenses, taxes, fees, fines, penalties, damages, losses, or other amounts paid, owed, or incurred by CARRIER, or owed by CONTRACTOR to a third party under a purchase or rental contract, that are CONTRACTOR’s responsibility under the Agreement-- specifically, the charge-back and deduction items set forth in Appendix A and other appendixes (hereafter "Escrow Items") -- to the extent that the amounts owed by CONTRACTOR for such Escrow Items exceed CONTRACTOR's earned and payable compensation at the time of any settlement or final accounting.

3. ACCOUNTINGS. While the Escrow Fund is under CARRIER’s control, CARRIER shall provide an accounting to CONTRACTOR, no less frequently than monthly, of all transactions involving such funds by clearly indicating on individual settlement sheets the amount and description of any deduction or addition made to the Escrow Fund. In addition, upon CONTRACTOR’s request, CARRIER shall provide CONTRACTOR with an accounting of any transactions involving CONTRACTOR’s Escrow Fund.

4. FINAL SETTLEMENT. To have any remaining balance in the Escrow Fund returned following termination of the Agreement, CONTRACTOR must first comply with all of the specific obligations set forth in the Agreement, and make payments to CARRIER for all Escrow Items. At the time of the return of any remaining balance in the Escrow Fund, CARRIER may deduct monies for all Escrow Items. Such deductions shall be limited to amounts CARRIER actually spends, incurs, or owes to a third party, or that CONTRACTOR owes to CARRIER or a third party under a purchase or rental contract, before termination of this Agreement or, with respect to any CONTRACTOR obligation triggered by termination, including any expenses (including reasonable attorneys' fees) incurred by CARRIER in seeking the return of its identification devices and other property, all amounts CARRIER actually spends, incurs, or owes to a third party upon termination or within one hundred eighty (180) days thereafter. CARRIER shall not make deductions from the Escrow Fund for items for which, by the end of one hundred eighty (180) days after termination, neither CONTRACTOR nor CARRIER has yet made an expenditure or incurred a quantified, legally binding obligation to pay. CARRIER shall provide a final accounting to CONTRACTOR of all such final deductions made from the Escrow Fund within one hundred eighty (180) days from the date of termination of the Agreement.

5. RETURN OF ESCROW BALANCE. In no event shall the Escrow Fund, less any final deductions pursuant to the above provision, be returned to CONTRACTOR later than one hundred eighty (180) days from the date of termination of this Agreement. CARRIER's use, or post-termination return to CONTRACTOR, of any balance in the Escrow Fund shall not constitute a waiver of CARRIER's right to recover, through arbitration or other available legal means, any additional amounts CONTRACTOR owes, or comes to owe, CARRIER under this Agreement.

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

In consideration of the mutual undertakings of the parties hereto, as set forth herein, it is agreed that the USER may interchange owned, leased, or controlled trailers subject to the following terms and conditions.

1. 2. 3. 4. 5. EQUIPMENT: The term EQUIPMENT as used herein shall refer to any trailers owned, leased, or controlled by the CARRIER.

POINTS OF INTERCHANGE: The specific points of interchange shall be at the points mutually agreed upon between the parties. At the time of interchange, an authorized representative of each party shall execute, in multiple copies, as the parties may require, an Interchange Receipt and Inspection in the form and manner prescribed by the CARRIER.

USE and RETURN: USER agrees that the EQUIPMENT will be utilized only for transportation to complete promptly and expeditiously the motor vehicle movement and return the EQUIPMENT to the CARRIER in the city and at the terminal where received, unless otherwise specified by the CARRIER. USER shall be responsible for the safe and timely return of the EQUIPMENT to the CARRIER, ordinary wear and tear expected. USER agrees not to interchange EQUIPMENT obtained from the CARRIER hereunder with third parties.

USER’S RESPONSIBILITY: USER shall accept responsibility for owner operators and their leased power units as if they were USER’S own employees and vehicles. Proper identification on tractors is mandatory and is an obligation of the USER. USER shall have complete control and supervision of such EQUIPMENT, and such EQUIPMENT shall be operated under its authority while in its possession, and CARRIER shall have no right to control the detail of the work of any employee or agent operating or using said EQUIPMENT during such time. Any person operating, in possession of, or using said EQUIPMENT after parties hereto sign an Inspection Report and until proper form is signed returning the EQUIPMENT to CARRIER, is not the agent or employee of the CARRIER for any purpose whatsoever.

TAXES: USER shall bear the cost of all federal, state, or municipal taxes, fines, fees, or charges levied or imposed or arising out of the use of the EQUIPMENT while in its possession, until its proper return to the CARRIER.

6. 7. a. b. INDEMNIFICATION: USER agrees to indemnify, defend, and hold CARRIER harmless from and against any and all loss, damage, liability, cost, or expense, including but not limited to, attorney’s fees, suffered or incurred in connection with injuries or death of any person, or loss of or damage to any property, arising out of the use, operation or maintenance of said EQUIPMENT until such EQUIPMENT has been returned to CARRIER and receipt issued therefore. The obligations assumed by USER pursuant to this paragraph shall apply regardless of any contributing act or omissions, whether negligent or not, on CARRIER’S part.

INSURANCE: Before commencing any work hereunder, USER shall procure, and shall thereafter maintain in force during the period of this Agreement, all of its own insurance, with insurance companies satisfactory to CARRIER, covering all of the work and services to be performed hereunder by USER and each of its subcontractors:

USER agrees to maintain for the duration of this Agreement, insurance coverage for owned and hired automobile liability including bodily injury and property damage, with coverage of at least $1,000,000.00 combined single limit or the equivalent.

USER agrees to maintain for the duration of this Agreement, insurance coverage for physical damage insurance for loss or damage to EQUIPMENT while in the care, custody and / or control of the USER. Such coverage may be written on an actual cash value basis per unit, but in no event less than $15,000.00.

USER agrees to maintain for the duration of this Agreement, insurance coverage for cargo loss insurance for loss and damage to lading contained in the EQUIPMENT while in the care, custody, and / or control of the USER. Such coverage shall be in the minimum amount of $100,000.00.

All certificates of insurance must provide CARRIER a minimum of thirty (30) days notice of cancellation.

TIRES: CARRIER shall furnish EQUIPMENT with tires and tubes of proper size at the time of interchange. Thereafter, until the EQUIPMENT is returned to CARRIER, repairs to tires and tubes shall be made by and at the expense of the USER. When an unserviceable tire or tube is replaced, it must be with a new tire / tube or newly recapped tire. When a tire is replaced, the empty tube should be reapplied if serviceable. USER shall return the blown-out or unserviceable tire to CARRIER.

DAMAGE or LOSS of EQUIPMENT: USER shall be responsible for all damages and losses occurring while in its possession, to the EQUIPMENT of CARRIER. In the event of total loss of EQUIPMENT, USER shall pay to CARRIER the commercial value of the trailer at the time it was interchanged.

DISPUTE RESOLUTION: IF any suit shall be brought against either party and a judgment recovered which such party will be compelled to pay and the other party shall, under the provisions of this Agreement, be solely liable therefore, such other party on demand shall promptly repay the party paying the same all money which it (the party paying the same) is required to pay, including damages, costs, fees, or other expenses. Neither party shall be bound by any judgment at law or in equity against the other party unless it has had reasonable notice from such other party requiring it to appear in an action or suit and make defense thereto for its own account or jointly with the other party. If such notice shall have been given by either party to the other party and the party receiving the same shall fail to appear and make defense, thereupon it shall be bound by the judgment or decree in the suit.

MISCELLANEOUS: The laws of the State of Missouri shall govern this Agreement in all of its aspects, including execution, interpretation, performance, and enforcement. This Agreement together with all exhibits shall constitute the entire agreement between the parties, and no oral amendment or modification thereof shall be permitted.

TERM and TERMINATION: This Agreement is in effect from the date shown herein, and shall remain in effect until terminated by either party giving the other party ten (10) days advance notice of termination, in writing, addressed to the other party. Any EQUIPMENT in possession of the USER on the date of termination must be returned to CARRIER within seventy-two (72) hours. If EQUIPMENT is not returned by USER and it becomes necessary for CARRIER to have the EQUIPMENT returned, USER shall bear all expenses for return of EQUIPMENT.