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This Agreement made and entered into this
Date Format: MM slash DD slash YYYY
by and between COST FREIGHT LLC., an authorized broker operating under Authority granted by the Federal Motor Carrier Safety Administration (“FMCSA”) under docket number MC1061894 (hereinafter referred to as "Broker,") and the following motor carrier, an authorized for-hire interstate motor carrier of property operating under Authority granted by the FMCSA:
hereinafter referred to as "Carrier":
NOW THEREFORE in consideration of the covenants contained herein, Broker and Carrier agree as follows:
Carrier’s Representations and Warranties:
Carrier represents and warrants that Carrier is duly and legally qualified to provide, as a contract carrier, the transportation services contemplated herein. Carrier further represents and warrants that it does not and will not have a conditional or unsatisfactory safety rating issued by the FMCSA, and further agrees to comply with all federal, state and local laws regarding the provision of the transportation services contemplated under this Agreement. In the event that Carrier is requested by Broker to transport any shipment required by the USDOT to be placarded as a hazardous material, Carrier agrees that Carrier shall comply with all USDOT regulations governing the transportation of such hazardous material.
The Term of this Agreement shall be for one (1) year from the date first above written and shall automatically renew for successive one (1) year periods; provided, however, that this Agreement may be terminated by either party at any time by giving thirty (30) days prior written notice. Notwithstanding the foregoing, Broker may terminate this Agreement immediately and without prior notice in the event Carrier materially breaches any term set forth herein or if Carrier files a voluntary petition in bankruptcy or is involuntarily petitioned into bankruptcy, makes an assignment for benefit of creditors, has a receiver appointed for its business, or becomes insolvent. Carrier shall be obligated to complete performance of any work in progress at the time of termination in accordance with the terms of this Agreement.
Carrier’s Performance of Services:
A. Carrier's services under this Agreement are specifically designed to meet the specific service needs of Broker and Broker’s customers under the terms and conditions set forth herein. Carrier shall provide all transportation as single-line transportation without commingling shipments with other shipments and without transferring cargo between cargo-carrying vehicles, except in instances where
Carrier first receives written authorization from Broker to commingle shipments or transfer cargo. Carrier shall have no right to warehouse cargo contained in any shipment except in a warehouse directed and designated in writing by Broker. Carrier will be responsible as a motor carrier from receipt of a shipment by Carrier until the shipment is delivered to and receipted by consignee and Carrier will not have any defenses available to a warehouseman or other bailee that might otherwise be available unless such change in status is specifically agreed to in writing by Broker. Carrier acknowledges that all shipments contemplated by this Agreement and the services Carrier is providing to Broker herein shall be handled and provided as contract carriage as defined in 49 U.S.C. § 13102(4)(B) and subject to the terms herein.
B. Carrier expressly waives any and all rights and remedies under Part B, Subtitle IV, of Title 49 U.S.C. (Sections 13101 to 14916 of the Interstate Commerce Act), as permitted in 49 U.S.C. § 14101(b), to the extent such rights and remedies conflict with the terms of this Agreement. Nothing in this Agreement shall be construed as waiving any Carrier statutory registration, insurance, or safety requirements. The terms of this Agreement shall apply to all loads arranged by Broker and hauled by Carrier regardless of whether Carrier received the request to transport directly from Broker or otherwise.
C. Upon receipt by Carrier of goods for transportation, Carrier shall transport and carry such goods as set forth in any oral or written direction from Broker and deliver the same in good order and condition to the consignee at the destination and time designated by Broker. Carrier expressly waives the right to perform service under this Agreement “with reasonable dispatch” when there is a scheduled pickup time, scheduled transit time, or scheduled delivery time and, in such event, Carrier shall not alter scheduled transit or delivery times without Broker’s written consent. Where the Broker provides Carrier with a specific pickup and/or a specific delivery time and date, such times and dates are of the essence and are material terms of this Agreement. In the event Carrier fails to pick up or deliver at a scheduled time, Carrier waives all rights to assess and collect detention charges. Notwithstanding the foregoing, Carrier acknowledges and agrees that nothing in this paragraph shall be construed as a request or requirement on the part of Broker for Carrier to violate the Federal Hours of Service Regulations. Carrier agrees to immediately notify Broker if a scheduled pickup or delivery time or date or if other circumstances would cause Carrier’s driver to violate such Hours of Service Regulations. Under no circumstances shall Carrier permit or require its drivers to violate any Hours of Service Regulation.
D. Notwithstanding any other term set forth herein or in any other writing, Carrier agrees that on each load transported hereunder, Carrier shall secure advance written approval from Broker prior to imposing any accessorial or detention charges. Carrier agrees that Carrier shall not withhold or attempt to withhold delivery of any shipment in order to secure pre-approval of any accessorial or detention charge. In any event, Carrier agrees to allow a minimum of two (2) free hours at each loading and unloading location and not request any detention charges for less than two (2) free hours.
E. On loads requiring the use of a refrigerated trailer, Carrier agrees that prior to arrival at origin, Carrier shall confirm that the refrigerated unit is working properly and Carrier shall precool Carrier’s trailer to the temperature specified on the Broker’s rate confirmation sheet. Upon loading, Carrier agrees that Carrier shall ensure that the refrigerated unit is set at the temperature directed on the bill of lading. If no temperature is contained on the bill of lading at origin, or in the event of a discrepancy between the bill of lading and any other oral or written direction, Carrier shall confer with Broker and the consignor and Carrier shall ensure that the correct temperature is entered on the bill of lading. Carrier shall strictly adhere to all requirements imposed by the Broker and the Broker’s customer with respect to the refrigerated load. Carrier shall be solely responsible for any loss or damage incurred due to a broken seal or incorrect
temperature after Carrier signs the bill of lading at origin. On refrigerated loads where a seal is applied at the shipper’s location, a seal broken prior to arrival at the consignee shall be prima facie evidence of actual injury to the cargo. Moreover, Carrier agrees to comply with the terms set forth in Appendix A, attached hereto.
Receipts and Bills of Lading.
Each shipment hereunder shall be evidenced by a Bill of Lading naming Carrier as the transporting carrier. Carrier shall become fully liable for freight when Carrier takes possession of such freight, regardless of whether a bill of lading has been issued or has been signed. Under no circumstances shall Carrier prepare or accept any freight document which lists Broker as "carrier" or "shipper." A shipper’s insertion of Broker’s name as carrier on a bill of lading shall be for the shipper’s convenience only and shall not change Broker’s status as a property broker. Broker is not a motor carrier and assumes no motor carrier responsibility for injury to cargo. Carrier shall become fully responsible/liable for the freight when it takes possession thereof and issuance of the bill of lading shall be prima facie evidence of Carrier's receipt of Broker’s customers' products in good order and condition, unless and to the extent otherwise noted by Carrier on the face of such receipt at the time of such tender. Upon delivery of each shipment made hereunder, Carrier shall obtain a receipt showing the kind and quantity of product delivered to the consignee of such shipment at the destination specified by Broker, and Carrier shall cause such receipt to be signed and dated by the consignee. All signed delivery receipts and bills of lading will be sent to Broker via e-mail within twenty-four (24) hours of delivery. To the extent Carrier maintains a tariff, or classifications, rules, and practices as identified in 49 U.S.C. § 13710(a), the terms of this Agreement shall control over such tariff, classifications, rules, and practices where such tariff, classifications, rules, and practices conflict.
A. Carrier shall be wholly responsible for the performance of all transportation contemplated by this Agreement. Carrier shall, at its sole cost and expense, (a) furnish all equipment necessary or required for the performance of its obligations hereunder (the "Equipment"); (b) pay all expenses related, in any way, with the use and operation of the Equipment; (c) maintain the Equipment in good repair and in safe and sound mechanical condition and appearance; and (d) utilize only competent, able drivers having a Commercial Drivers’ License and being qualified by Carrier to operate under Carrier’s motor carrier authority in compliance with the Federal Motor Carrier Safety Regulations (“FMCSR’s”) including but not limited to 49 CFR §§ 382 (Controlled substances and alcohol use and testing), 383 (Commercial drivers license standards), 391 (Qualifications of drivers), 392 (Driving of Commercial motor vehicles), and 395 (Hours of service of drivers).
B. Carrier shall perform the services hereunder as an independent contractor. By this Agreement the parties do not intend to provide for division of profits between Carrier, Broker and/or any customer of Broker, or to clothe Broker and/or any customer of Broker with joint control over Carrier’s performance of the motor carrier services provided hereunder. Carrier assumes complete and sole responsibility for its drivers’ compensation, unemployment insurance (where applicable), workers’ compensation insurance, payroll taxes, pensions, social security taxes, and any and all other incidents and benefits due or that may be due to Carrier’s drivers and other agents and employees.
Carrier shall defend, indemnify, and hold Broker, Broker’s customer and their respective officers, directors, shareholders, members, agents, customers, employees, and insurers (“Broker Indemnified Parties”), harmless from and against all losses, liabilities, damages, claims, fines, costs, and
expenses, including reasonable attorney's fees, arising out of or in any way related to the performance or breach of this Agreement by Carrier, its employees, drivers, and agents (collectively, the "Claims"), including, but not limited to:
A. Claims which may be brought at any time against any Broker Indemnified Party because of death or injury to any person, including Carrier’s own employees, agents, and/or subcontractors or property damage (including injury to cargo) which may arise from or in connection with the maintenance, use, or operation by Carrier, Carrier’s agents, or subcontractors of equipment in performance of services under this Agreement;
B. Penalties and fines of any character which are sought to be enforced against any Broker Indemnified party by reason of a violation or alleged violation by Carrier, Carrier’s agent, or subcontractor of any Federal, State, or local law, rule, or regulation;
C. Claims related to Carrier’s drivers’ classification as employees or owner operators, and to Carrier's possession, use, maintenance, custody or operation of the Carrier’s and its drivers’ or owneroperators’ motor vehicle equipment.
Notwithstanding the foregoing, Carrier's indemnification and hold harmless obligations to the Broker Indemnified Parties under this paragraph will not apply to any portion of such claim attributable to the intentional or reckless conduct of Broker. The right to indemnity hereunder shall include all expenses (including reasonable attorneys’ fees) incurred in settling claims or fines and in pursuing the right to indemnity herein.
A. Carrier acknowledges that during the term of this Agreement, Carrier will have material contact with Broker’s customers and will develop and/or obtain knowledge, skills, information and experience of a valuable and confidential nature in relation to Broker’s and its customers’ operations. Carrier agrees that for the term of this Agreement and for twelve (12) months thereafter, Carrier shall not directly or indirectly initiate communication with, contact, solicit business from, provide service for, or attempt to initiate communication with or provide service for any of Broker’s customers for whom Carrier provided service under this Agreement within the prior twelve (12) month period.
B. In the event of a breach of this paragraph, Broker shall be entitled to a commission of ten percent (10%) of the gross transportation revenue (as evidenced by freight bills) received by Carrier for the transportation of Broker’s customers’ freight as liquidated damages, in addition to any other remedy provided herein. Additionally, Broker may seek injunctive relief and, in the event Broker is successful, Carrier shall be liable for all costs and expenses incurred by Broker, including, but not limited to, reasonable attorney's fees. The parties agree that the restrictions and limitations in this Section are reasonable as to scope and duration and are necessary and reasonable to protect Broker’s interest in preserving its customer relationships. In the event the restrictions and limitations of this paragraph shall ever be deemed to exceed the time, scope or geographic limitations permitted by applicable law, then such provisions of this Section shall be reformed to the maximum time, scope, and geographic limitations permitted by applicable law. Broker is materially relying upon each such covenant, agreement, representation and warranty of Carrier set forth in this paragraph and elsewhere in the Agreement in entering into this Agreement with Carrier. Carrier’s obligations hereunder shall survive termination of this Agreement.
Carrier shall procure and maintain, at its sole cost and expense, the following insurance coverages during the term of this Agreement:
Commercial Automobile Liability Insurance,
with a combined single limit of not less than ONE MILLION DOLLARS
(U.S. Dollars), each occurrence, with respect to all vehicles owned, non-owned, hired or assigned to transport shipments under this Agreement. Such insurance policy shall include coverage for any and all liabilities for personal injury (including death) and property damage arising out of the ownership, maintenance, use or operation, including loading or unloading, of the equipment operated by Carrier under this Agreement, and shall be endorsed naming Broker as an additional insured. If Carrier transports hazardous materials, it must comply with the minimum liability insurance limit for bodily injury and property damage required by 49 C.F.R. Section 387.9, as may be amended from time to time.
in an amount not less than ONE HUNDRED THOUSAND DOLLARS ($100,000.00) per shipment coverage, with no exclusions of coverage based on the commodities tendered to Carrier under this Agreement, and, to the extent Carrier accepts refrigerated loads, with a Refrigeration Endorsement or similar endorsement. Said insurance shall include coverage for consequential damages, broken seal, driver error, driver and employee theft, and spoilage.) Said insurance shall be endorsed naming Broker as an additional insured.
Workers’ Compensation Insurance
to the extent required by law, and employers’ liability insurance with at least five hundred dollars ($500,000.00) coverage per occurrence for bodily injury on all employees and drivers.
Non-Trucking General Liability,
with limits of $1,000,000 per occurrence and aggregate.
Proof of Insurance.
Prior to accepting any shipment hereunder, Carrier shall provide Broker with evidence of all insurance coverages required to be maintained by Carrier under this Agreement showing that such insurance has been procured, is being properly maintained, the expiration date, and specifying that written notice of cancellation or modification of the policy shall be given to Broker at least thirty (30) days prior to such cancellation or modification. Nothing in this Section shall be construed to limit Carrier’s liability to Broker, Broker’s customer, or any third party.
Freight Loss, Damage, Delay, or other Injury to Cargo.
Subject to the following, Carrier agrees that Carrier’s liability for any cargo damage, loss, delay, or other injury to cargo from any cause shall be determined under the Carmack Amendment, 49 U.S.C. §14706. Carrier’s liability shall extend to full liability for loss and damage to trailers, flat beds, containers, or other similar vehicles owned or utilized by Broker’s customer while in the possession of Carrier. Carrier agrees that where food products for human or animal consumption have been transported under conditions that are not in compliance with the shipper’s or Broker’s instructions provided to Carrier, such food products will be considered “adulterated” within the meaning of the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 342(i), and shall constitute a material breach of this agreement
Carrier shall pay, decline, or make a settlement offer in
writing on all cargo loss or damage claims in compliance with 49 C.F.R. §370.1 et seq. and any amendments and/or any other applicable regulations adopted by the FMCSA, U.S. Department of Transportation, or any applicable state regulatory agency. Failure of Carrier to pay, decline or offer settlement within 120 days shall be deemed admission by Carrier of full liability for the amount claimed by Broker’s customer and a material breach of this Agreement.
All rates negotiated between Broker and Carrier shall be for the full value liability on the part of the Carrier for cargo transported by Carrier hereunder. For transportation provided hereunder, in the event of a freight loss, damage, theft, or other injury to Cargo, Carrier shall be liable to Broker and Broker’s customer for the full value of the cargo, which shall be understood to mean the invoice value of the lost, stolen, or damaged item or the actual cost of replacing the damaged or lost shipment, whichever is greater, plus the cost of transportation; provided Carrier may limit its liability solely by entering into a separate, integrated written agreement, mutually-executed by Carrier and Broker, specifically identifying the date, commodity, unique Broker’s identifying number for the specific shipment, and the agreed-upon value of the cargo. Carrier shall not generally limit liability by a rules tariff or similar document.
In addition to the damages recoverable in Paragraph 9(B) above, in the event a shipment under this Agreement involves freight that has an expiration date for usage or delivery (such as perishables or printed matter) or a specified delivery date and time, then Carrier shall be responsible for the cost of the production of substitute product and the cost of transportation to substitute the replacement product for delayed, lost or damaged product and any other consequential damages suffered by the Broker or Broker’s customer arising as a result of Carrier’s acts or failures to act.
Broker and Broker’s customers shall have the sole right to the salvage of any product contained on any shipment under this Agreement unless the Carrier shall secure from Broker written direction to salvage such product.
Waiver of Carrier Liens and Assignment of Rights:
Because Carrier is relying solely upon the general credit of Broker and not Broker’s customer, shipper, or consignee, Carrier agrees that Carrier shall not have any right, title, interest, ownership or claim in the goods tendered for transportation to Carrier under this Agreement, and Carrier waives all carrier liens, bailment liens, possessory liens or liens of any type and kind, (including but not limited to, liens arising under 49 U.SC. § 13707 and 49 U.S.C. § 80109) arising by reason of the Carrier’s possession or provision of a transportation service for Broker and Broker’s customers. In the event Carrier asserts a lien, Carrier agrees to pay (i) the actual cost of replacing the commodities against which the lien is asserted, (ii) all consequential damages incurred by Broker and/or Broker’s customer arising as a result of the asserted lien, and (iii) all attorneys’ fees, bond and surety costs, filing fees, and other costs incidental to actions in replevin or other actions to recover possession, clear title, or to recover damages arising by and during the time possession is denied.
Rates and Compensation.
A. Rates and charges for services rendered by the Carrier under this Agreement shall be as agreed to between the parties in writing on a Schedule of Rates mutually-executed by Broker and Carrier or on Broker’s Rate Confirmation, the terms of which are incorporated herein, and are deemed
binding. Carrier represents and warrants that there are no other applicable rates or charges except in a mutually executed Schedule of Rates, or in Broker’s Rate Confirmation.
(i) Payment by Broker will be made within thirty (30) days of receipt by Broker of Carrier's freight bill, a clean bill of lading and/or clear delivery receipt, and any other necessary billing documents enabling Broker to ascertain that service has been provided at the agreed upon charge.
(ii) In the event service is provided and it is subsequently discovered that neither a Schedule of Rates nor a Broker’s Rate Confirmation has been executed, a reasonable rate shall be charged of $1.50 per mile.
(iii) Carrier agrees that, in the event of a claim for loss, damage, delay, or any other injury to any shipment tendered to Carrier hereunder, Broker has the discretionary right to offset against any payments owed to Carrier hereunder the amount of such claim until such claim is paid to or at the direction of Broker or Broker’s customer, or it is determined that Carrier is not liable for such claim.
(iv) Carrier agrees that this Agreement supersedes all other rates or charges including but not limited to charges for stop-offs, detention, lumper fees, fuel surcharges contained in any tariff, rules, circulars or other similar document maintained by Carrier.
(v) Upon Carrier’s acceptance of payment for a load, Carrier agrees to waive all rights and remedies under 49 C.F.R. § 371.3 with regard to that particular load.
B. Carrier agrees that Carrier’s agreement to accept the tender of shipments from Broker has been made solely upon a determination of the credit-worthiness of Broker and not of Broker’s customers, shippers, or consignees. As such, Carrier acknowledges and agrees that Broker has the exclusive right to handle all billing of freight charges for transportation services provided herein and Carrier expressly waives any and all contractual, statutory, or other right to commence or engage in any collection efforts against or to collect freight charges due on any shipment tendered hereunder from the shipper, receiver, consignor, consignee, or the customer of Broker. Carrier’s obligation to look solely to the Broker for payment of Carrier’s freight charges shall survive termination of this Agreement for any reason, and Carrier agrees that a material breach of any term hereunder by Broker shall not relieve Carrier of this obligation. Carrier agrees to indemnify and hold harmless Broker and Broker’s customer against any and all claims, demands, losses, liabilities, costs and expenses, (including without limitation attorneys’ fees) incurred by Broker and its customer arising out of or relating in any way to Carrier’s violation of this paragraph. The indemnity obligation under this paragraph shall include the payment of Broker’s and Broker’s customers’ attorneys’ fees in securing indemnity.
Prohibition Against Subcontracting.
Unless Carrier first obtains prior written consent from Broker, Carrier specifically agrees that all freight tendered to Carrier by Broker shall be transported on equipment operated only under the authority of Carrier and Carrier agrees that Carrier will not re-broker, co-broker, double-broker, assign, or interline shipments tendered to Carrier by Broker. If Carrier breaches this provision, in addition to any and all other remedies available to Broker in equity or at law, Carrier and its assigns shall forfeit payment for the load at issue and shall waive any and all legal rights and remedies
against Broker and Broker’s customer with respect to the load at issue. In the event of a breach of this provision, Broker shall have the right to pay any freight charges due directly to the delivering carrier, in lieu of payment to Carrier. Carrier shall not be released from any liability under this Agreement including but not limited to Carrier’s liability for freight loss, damage, delay, or other injury to cargo. In addition to the indemnity obligation provided in this Agreement and any claim Broker or Broker’s customer may have under 49 U.S.C. § 14916, Carrier will be liable for consequential damages and attorneys’ fees resulting from any violation of this Paragraph. Upon contravention of this Paragraph, Carrier waives the right to pursue legal action in the collection of payment from Broker or any other party. Carrier’s obligations herein shall survive termination of this Agreement.
This Agreement contains all the terms and conditions between the parties, and it shall not be altered or amended except in writing signed by all parties. This Agreement may not be assigned or transferred in whole or in part. The provisions of this Agreement shall be deemed to supersede and prevail over any conflicting terms set forth in in any bill of lading or other shipping document issued by Carrier whether such document was prepared prior to or after execution of this Agreement.
In the event that the operation of any portion of this Agreement results in a violation of any law, the parties agree that such portion shall be severed and that the remaining provisions of this Agreement shall continue in full force and effect. The representations of the parties hereunder and the obligations and rights as set forth in paragraphs 7, 11(B), and 12 shall survive termination of this Agreement for any reason.
Failure of Broker to insist upon Carrier's performance under this Agreement or to exercise any right or privilege shall not be a waiver of any Broker's rights or privileges herein and shall not affect or limit the right of either party hereto to thereafter enforce such a term or provision.
Dispute Resolution / Arbitration:
A. THE LAWS OF THE STATE OF ILLINOIS SHALL GOVERN ALL QUESTIONS, DISPUTES, OR CLAIMS, WHETHER BASED IN TORT, STRICT LIABILITY, CONTRACT, OR EQUITY OR UPON FEDERAL OR STATE STATUTE OR REGULATION, ARISING OUT OF OR RELATING DIRECTLY TO THIS AGREEMENT, THE PERFORMANCE, INTERPRETATION, ENFORCEMENT, OR ALLEGED BREACH OF THIS AGREEMENT, OR THE BUSINESS RELATIONSHIP BETWEEN THE PARTIES, WITHOUT REGARD TO CHOICE OF LAW PRINICPLES THEREOF.
B. Except as provided in paragraphs 7, 11(B), and 12 herein, the parties agree in the event of a dispute arising out of this Agreement or otherwise out of the business relationship between parties, including but not limited to State and Federal statutory claims, each party’s sole recourse shall be to arbitration. Proceedings shall be conducted under the rules of the Transportation ADR Council by a sole arbitrator appointed in accordance with such rules: https://www.translaw.org/Pages/ADRInformation.aspx. The decision of arbitrator shall be binding and final and the award of the arbitrator may be entered as a judgment in any court of competent jurisdiction. The rationale and reasoning of the decision of the arbitrator shall be fully explained in a written opinion. Arbitration proceedings hereunder shall be conducted in Chicago, Illinois or in such other place as is mutually agreed upon in writing and may be conducted by telephone or video conferencing or as directed by the appointed arbitrator.
C. Broker, in its sole discretion, may bring a claim for injunctive relief, including but not limited to relief as permitted in paragraphs 7, 11(B), and 12, in any State of Federal Court located in the continental United States without regard to the arbitration requirements set forth in paragraph 16(B). In the event Broker brings a claim for injunctive relief as permitted herein, Broker may, in its sole discretion, join any other claims at law or equity in such proceeding without first submitting the claim to arbitration as set forth in paragraph 16(B). Broker shall be entitled to recover its costs, expenses, and reasonable attorneys’ fees incurred in any action for injunctive relief.
Any written notice herein provided for shall be sent United States mail addressed to the party identified below at the address specified below or by e-mail with electronic receipt, or to such other addresses as shall have been designated in writing by each party below.
This Agreement shall be binding upon the respective heirs, executors, personal representatives, and successors of the parties hereto.
In any action by Broker to enforce any of the terms or conditions of this Agreement wherein Broker is successful, Broker shall be awarded a reasonable attorneys’ fee in addition to any costs allowed by law.
Minimum Volume / Non-Exclusivity.
There are no minimum volumes of freight contemplated by this Agreement. Broker is not restricted against tendering its freight to other motor carriers. Subject to paragraph 7 herein, Carrier is not restricted against performing transportation for other shippers or brokers.
Limited Power of Attorney.
Carrier, as principal, hereby appoints Broker, as Carrier’s true and lawful attorney in fact, with full authority to serve in its place and stead, for the following specific and limited purpose only: To take such action necessary to secure coverage under the policies of insurance maintained by Carrier pursuant to Section 12, including but not limited to reporting and processing claims direct with Carrier’s insurers, and assigning all rights under such policies to Broker or Broker’s customer.
Carrier, on behalf of itself and its drivers, hereby agrees to the transfer and transmission to Broker of location and other data created by or entered into any Electronic Logging Device (“ELD), GPS device, or other fleet management and tracking technologies for use at Broker’s sole discretion. Such transfer and transmission to Broker may be made by Carrier or Carrier’s service provider as may be necessary to effectuate the transfer and transmission. Carrier authorizes Carrier’s service providers to take such actions as may be necessary to set up and effect the transfer and transmission of such data to Broker. Carrier grans to Broker a non-exclusive, transferable, sublicensable, and revocable license to use, distribute, reproduce, display, perform, copy, modify, and create derivative works based upon such data. The parties acknowledge that the data referred to herein may contain personal information, including driver location data, and Carrier represents and warrants that Carrier has all rights necessary and has obtained or will obtain any necessary consents from Carrier’s drivers and other end users necessary for Carrier to share such data with Broker.
California Refrigerated Shipments.
To the extent Carrier utilizes trucks and/or trailers equipped with Transport Refrigeration Units (“TRU”) and TRU Generator Sets (“Gensets”) that are transporting perishable goods on highways or any other roadway located in the State of California (“California TRU Transportation”), Carrier hereby warrants that all TRU and TRU Genset-equipped trucks and trailers used by Carrier to provide transportation on any highway or other roadway in the State of California shall comply with the TRU and TRU Genset Requirements for Owners or Owner/Operators set forth by the California Air Resources Board. Carrier further warrants that Carrier shall ensure that each driver operating a TRU-equipped and TRU Genset-equipped truck and trailer in the State of California on any shipment arranged, hired, contracted for or dispatched by Broker shall be provided with name, address, and telephone number of Broker and the name of the Broker’s dispatcher in writing so that the driver can immediately present it to authorized California enforcement personnel upon request. Carrier further agrees to ensure that each of its driers are provided or otherwise possess the following information on all such shipments; drivers license; truck registration, trailer registration, bill of lading with origin and destination of freight being transported, shipper and receiver business name, street address, state, and ZIP, and motor carrier business name and Carrier’s dispatcher’s name, and phone number. Carrier certifies that Carrier has registered its TRUs and TRU Gensets that will be used in providing transportation in the State of California with the California Air Resources Board Equipment Registration (“ARBER”) system. Carrier agrees to indemnify and hold harmless Broker against any and all claims, demands, losses, liabilities, fines, penalties, costs and expenses, (including without limitation attorneys’ fees) incurred by or directed to Broker arising out of or relating in any way to violation of or failure by Carrier to comply with the TRU and TRU Genset Requirements for Owners or Owner/Operators set forth in the California Air Resources Board.
Date Format: MM slash DD slash YYYY
Address Line 2
State / Province / Region
ZIP / Postal Code
Antigua and Barbuda
Bonaire, Sint Eustatius and Saba
Bosnia and Herzegovina
British Indian Ocean Territory
Central African Republic
Congo, Democratic Republic of the
Congo, Republic of the
French Southern Territories
Heard and McDonald Islands
Isle of Man
Lao People's Democratic Republic
Northern Mariana Islands
Palestine, State of
Papua New Guinea
Saint Kitts and Nevis
Saint Pierre and Miquelon
Saint Vincent and the Grenadines
Sao Tome and Principe
Svalbard and Jan Mayen Islands
Trinidad and Tobago
Turks and Caicos Islands
United Arab Emirates
US Minor Outlying Islands
Virgin Islands, British
Virgin Islands, U.S.
Wallis and Futuna
SANITARY FOOD TRANSPORTATION COMPLIANCE
Carrier agrees to the following terms and conditions when transporting refrigerated and frozen food shipments which may be subject to adulteration in transit. The term “Food Shipments” refers to food that will ultimately be consumed by humans or animals.
1. Compliance with Laws. Carrier must comply with the laws and regulations governing the safe and secure transportation of Food Shipments, including those required by local, provincial, state and federal laws, regulations, ordinances and rules including, but not limited to, the Food Safety Modernization Act (21 U.S.C. § 2201, et. seq.) ("FSMA"), the Federal Food, Drug and Cosmetic Act (21 U.S.C. § 341, et seq.) ("FD&C Act"), the Sanitary Food Transportation Act (49 U.S.C. § 5701, et seq.), the U.S. Food and Drug Administration's Final Rule on the Sanitary Transportation of Human and Animal Food (21 C.F.R. § 1.900, et seq.) and all applicable U.S. Department of Agriculture and Food Safety and Inspection Service regulations (collectively, the "Food Safety Laws").
2. Instructions. Carrier shall comply with and is responsible for understanding Broker’s and Broker’s customers’/vendors’ food handling instructions, which may be set forth in physical or electronic form as part of the load confirmation process. Carrier shall apply all written instructions to future shipments of the same type unless otherwise instructed by Broker or Broker’s customer in writing.
3. Temperature Verification. Carrier shall verify the temperature of Food Shipments at origin unless the load is pre-sealed and Carrier is prevented from so verifying. Carrier shall write the recorded temperature on the shipping document used by the parties for pick-up, transport or delivery of goods (for example, the Bill of Lading). Carrier shall notify Broker immediately if the temperature of the Food Shipment is not in accordance with Broker or Broker’s customer’s instructions. Where Carrier is prevented from verifying the temperature of a load, Carrier shall so indicate on the bill of lading or
4. Temperature Settings. Prior to loading Food Shipments, Carrier must ensure that the cold storage compartments are prepared for safely transporting the Food Shipments. Carrier must pre-cool each mechanically refrigerated cold storage compartment as specified in writing, and must set operating temperatures to ensure Food Shipments are at all times maintained at the set temperature point or within the temperature range specified in writing. Once the transportation operation is complete and upon request, Carrier must provide documentation that it maintained temperature conditions during the transportation operation consistent with the operating temperature specified by Broker or Broker’s customer’s instructions.
5. Equipment. Carrier represents and warrants that all Equipment (as defined in the Food Safety Laws herein) used in transporting Food Shipments, is in safe and sanitary condition and appropriate for performance of the Services for Food Shipments, and that the Equipment is free from contamination, pest infestation, and evidence of prior cargo that could render the Food Shipments unsafe. If Carrier transports partial load shipments (also known as less-than-truckload, or LTL, shipments), Carrier shall conduct appropriate inspections and take necessary actions upon receiving the first shipment and each subsequent shipment to ensure that (a) the Equipment remains in safe and sanitary condition; (b) any Food Shipments will not be contaminated by any previously or subsequently loaded cargo; and (c) the temperature of any temperature-controlled Food Shipment will not be materially disrupted.
6. Transportation Operations. All transportation operations must be conducted under such conditions and controls necessary to prevent the food from becoming unsafe during transportation operations including, but not limited to: (a) taking effective measures such as segregation, isolation, or the use of packaging to protect food from contamination by raw foods and nonfood items in the same load; (b)taking effective measures such as segregation, isolation, or other protective measures, such as handwashing, to protect food transported or food not completely enclosed by a container from contamination and cross-contact during transportation operations; and (c) shall maintain the integrity of the cargo seal.
7. Qualified Inspection. In the event a Food Shipment is suspected to be adulterated, Carrier shall immediately notify Broker, shall note the extent of any damage, and shall thereafter maintain temperature of the Food Shipment while awaiting Broker’s direction for redelivery, inspection and salvage. Broker shall have the right to select a qualified inspector and Food Shipments shall only be released out of the Carrier’s care, custody and control as directed by Broker. Carrier understands that adulterated shipments may be refused by broker, its vendor or customer upon their tender for delivery at destination, following inspection by USDA or other qualified personnel. Food Shipments that have been transported or offered for transport that are not in compliance with the written instructions received by Carrier will be considered adulterated within the meaning of the FD&C Act (21 U.S.C. 342(a)(2)(C)(ii)(4) and 342(i)).
8. Record Keeping. Carrier agrees to develop and implement written procedures subject to the records requirements of 21 C.F.R. § 1.912(b) for the safe transport of Food Shipments. Carrier agrees to maintain all documentation and records related to the transport of Food Shipments governed by this Agreement, including training records and any other written agreements assigning tasks in compliance with 21 C.F.R. § 1.912(c) and (d). Carrier acknowledges that Carrier must maintain such training records for a period of twelve (12) months beyond when the person identified in any such records stop performing the duties for which the training was provided, and further, that Carrier must retain all written agreements assigning tasks in compliance with FSMA for a period of 12 months beyond the termination of such agreement.
9. Access to Records. Immediately, or as soon as practicable, Carrier agrees to provide (a) documents that identify the previous cargo transported for equipment used to transport Food Shipments; (b) the most recent cleaning and intervening cleaning procedures for equipment used to transport Food Shipments; (c) maintenance procedures for equipment and terminals that Food Shipments were temporarily stored or where Food Shipments were cross-docked; (d) proof of training and appropriate training materials for each person under Carrier’s supervision or control involved in transport of Food Shipments; and (e) evidence that the Food Shipments have not been adulterated, as defined by the Food Safety Laws, and have been transported under sanitary conditions to protect Food Shipments against temperature abuse or excessive fluctuations as well as any physical, chemical, or microbial contamination. Carrier shall make such records available upon request within twenty-four (24) hours of broker’s request.
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