The entire agreement between Logistics Plus, Inc. (“Broker”) and the enrolled carrier (“Carrier”), consists of: (i) these Terms and Conditions of Carrier Services and (ii) any additional terms and conditions proposed by Broker in writing and signed by Carrier ((i) and (ii) collectively, the “Agreement”). The Agreement shall become binding when accepted by Carrier either by acknowledgment or performance by Carrier. These Terms and Conditions of Carrier Services shall apply to all shipments received by Carrier for transportation and may be amended from time to time by Broker, in its sole discretion. Any terms and conditions proposed by Carrier which are additional to or inconsistent with the terms and conditions contained in the Agreement shall be void, unless specifically agreed to by Broker in writing, signed by Broker’s duly authorized representative.
The Broker is a registered freight broker (License No. MC351651) for purposes of US domestic ground transportation. The Broker reserves the right, in its sole discretion, to refuse to broker/schedule any shipment at any time.
1. Carrier Representations and Warranties.
Carrier represents and warrants, as applicable, that it:
a. is a registered Motor Carrier of property authorized to provide transportation of property under contracts with shippers and receivers and/or brokers of general commodities.
b. has and will maintain a satisfactory U.S. DOT Safety Rating, and under no circumstances is Carrier allowed to provide services if their safety rating falls to “unsatisfactory.” Additionally, Carrier must provide prompt written notice to Broker should their safety rating fall to “unsatisfactory” or “conditional”.
c. shall transport the property, under its own operating authority and subject to the terms and conditions of this Agreement.
d. makes the representations herein for the purpose of inducing Broker to enter this Agreement.
e. agrees that a shipper’s insertion of Broker’s name as the “carrier” on the bill of lading shall be for the shipper’s convenience only and shall not change Broker’s status as a property broker nor will it change Carrier’s status as a motor carrier.
f. will not re-broker, subcontract, assign or, lease, or interline the shipments rendered under this Agreement without the Broker’s prior express written consent. Further, the Carrier warrants it will not utilize any third-party for the performance of services hereunder without the express prior written consent of the Broker. If Carrier breaches this provision, Carrier shall be and shall remain fully liable for the full value of any loss or damage to the goods or any other liability resulting therefrom, and Broker shall have the right to pay the monies it owes Carrier directly to the delivering carrier, in lieu of making payment to the Carrier. Upon Broker’s payment to the delivering carrier, Carrier shall not be released from any liability to Broker under this Agreement. In addition to the indemnity obligation in Section 5 herein and the liability for breach as stated herein section 1, Carrier will be liable for any/all lost profits and consequential, indirect and special damages for violation of this Section 1.
g. is in and shall maintain compliance during the term of this Agreement, with all applicable federal, state and local laws relating to the provisions of its services including, but not limited to: training of drivers, transporting of “Hazardous Materials” (including the licensing and training of Hazardous Materials qualified drivers), as defined in 49 C.F.R §172.800, §173, and §397 et seq. to the extent that any shipment hereunder constitutes Hazardous Materials; security regulations; owner/operator lease regulations; loading and securing of freight regulations; implementation and maintenance of driver safety regulations, including, but not limited to: hiring, controlled substance, and hours of service regulations; sanitation, temperature, and contamination requirements for transporting food, perishables, and other products; qualification licensing and training of drivers; implementation and maintenance of equipment safety regulations; maintenance and control of the means and method of transportation, including, but not limited to, performance of its drivers; and all applicable insurance laws and regulations, including, but not limited to, workers’ compensation.
h. Carrier will notify Broker immediately if its federal operating authority is revoked, suspended or rendered inactive for any reason, and/or is sold, transferred, or if there is a change in ownership, and/or any insurance required hereunder is threatened to be or is terminated, canceled, suspended or revoked for any reason.
2. Broker Responsibilities.
a. Broker agrees to solicit and obtain freight transportation business for Carrier to the mutual benefit of the parties. Broker shall inform Carrier of:
1. place of origin and destination of all shipments; and
2. if applicable, any special shipping instructions or special equipment requirements, of which Broker has been timely notified.
b. Broker agrees to conduct all billing services for its customers. Carrier shall invoice Broker for its (Carrier’s) charges, as mutually agreed in writing (e-mail being sufficient for this purpose) between the parties from time to time (“Quotes”). Such agreed upon Quotes shall be incorporated herein by reference.
c. Fuel surcharges and other accessorial charges for shipments shall be applied only as set forth in a Quote, and shall appear as a separate line item on the Carrier’s invoice to the Broker. The scale of the fuel surcharge may only be changed upon mutual written agreement of the Carrier and the Broker.
d. The parties agree that Broker is the sole party responsible for payment of Carrier’s charges, provided Carrier is not in default under the terms of this Agreement. Failure of Broker to collect payment from its customer shall not exonerate Broker of its obligation to pay Carrier. Broker agrees to pay Carrier’s invoice within thirty (30) days of receipt of a valid, undisputed invoice. If payment is not made within sixty (60) days from the date of invoice, and upon ten (10) days’ prior written notice from Carrier to Broker detailing the failure to pay, Carrier may collect from all parties involved.
e. Broker will notify Carrier immediately if its federal operating authority is revoked, suspended or rendered inactive for any reason; and/or if it is sold, transferred or if there is a change in ownership, and/or any insurance required hereunder is threatened to be or is terminated, cancelled, suspended or revoked for any reason.
f. Broker’s responsibility is limited to arranging for, but not actually performing, transportation of a shipper’s freight.
3. Carrier Responsibilities.
Subject to its representations and warranties in Section 1 above, Carrier agrees to provide the necessary equipment and qualified personnel for completion of the transportation services required for Broker and/or its customers without the use of third-parties or third-party equipment, unless expressly authorized in writing by Broker. Carrier will not supply equipment that has been used to transport hazardous waste, solid or liquid, regardless of whether they meet the definition in 40 C.F.R. §261.1 et seq.. Carrier agrees that all shipments will be transported and delivered with reasonable dispatch, or as otherwise agreed in writing.
a. Carrier shall be liable to (i) Broker’s customer and/or (ii) Broker as the agent or assignee of a claim of Broker’s customer, for any and all loss or damage of a shipment received by Carrier for transportation under this Agreement. Carrier’s liability for any cargo damage, loss or theft from any cause shall be determined under the terms of 49 U.S.C. §14706.
b. Carrier shall issue a bill of lading in compliance with U.S.C. §80101 et seq., 49 C.F.R. §373.101 (and any amendment thereto), for the property it receives for transportation under this Agreement. Unless otherwise agreed in writing, Carrier shall become fully responsible and liable for the freight when it takes/receives possession thereof, and the trailer(s) is loaded, regardless of whether a bill of lading has been issued, and/or signed, and/or delivered to Carrier and which responsibility and liability shall continue until delivery of the shipments to the consignee together with a signed bill of lading or delivery receipt. Any terms of the bill of lading (including, but not limited to, payment terms, released rates or released value) inconsistent with the terms of this Agreement shall be ineffective. Failure to issue a bill of lading or sign a bill of lading acknowledging receipt of the cargo, by Carrier, shall not affect the liability of the Carrier.
c. The measurement of the loss, damage or injury to the shipment shall be the lessor of shipper’s invoice price or shipper’s cost of manufacture as evidenced in writing.
d. Except as provided in Par. 1(f) above and Par. 5(c) below, neither party shall be liable to the other for consequential damages without prior written notification of the risk of loss and its approximate financial amount, and agreement in writing to assume such responsibility.
a. To the extent permissible under the applicable law, Carrier shall defend, indemnify and hold Broker (including its officers, directors, employees and agents) and its shipper customer harmless from any claims, actions, losses and damages, arising out of its performance under, or any breach of, this Agreement, including cargo loss and damage, theft, delay, damage to property, personal injury and death.
b. Carrier shall defend, indemnify and hold Broker harmless from any claims brought against Broker by or on behalf of Carrier’s employees or the employees’ representatives, any worker’s compensation carrier (including any subrogation action), independent contractors or agents working on behalf of the Carrier, as a result of Carrier’s service to Broker.
c. Carrier’s defense and indemnification liability for freight loss and damage claims shall include legal fees which shall constitute special damages, the risk of which is expressly assumed by the Carrier.
6. Loss and Damage Claims.
a. Carrier shall comply with 49 C.F.R §370.1 et seq., and any amendments thereto and/or any other applicable regulation adopted by the Federal Motor Carrier Safety Administration, U.S. Department of Transportation, or any applicable state regulatory agency, for processing all loss and/or damage and/or salvage claims.
b. Notwithstanding the terms of 49 CFR §370.9, Carrier shall pay, decline or make a settlement offer in writing on all cargo loss or damage claims within sixty (60) days of receipt of the claim. Failure of Carrier to pay, decline or offer settlement within this 60-day period shall be deemed to be an admission by the Carrier of full liability for the amount claimed and a material breach of this Agreement.
a. Carrier shall furnish broker with certificates of insurance or insurance policies, and unless otherwise agreed in writing, subject to the following minimum limits:
1. Employer’s liability insurance subject to a limit of $1,000,000 per occurrence;
2. Comprehensive general liability insurance (bodily injury and property damage, including contractual liability as per the indemnification obligations set forth in this Agreement) with a combined single limit of $1,000,000 per occurrence;
3. Automobile insurance as per applicable federal and state regulations for owned or hired vehicles covering bodily injury, including death and/or property damage with a combined single limit of $1,000,000 per occurrence;
4. Cargo insurance with a $100,000 minimum limit per shipment; and
5. Workers’ compensation insurance in accordance with the requirements of applicable laws of the jurisdictions in which Carrier provides transportation services.
b. All policies under this Section 7 shall be obtained from an insurance carrier with an A.M. Best rating of “A-“or better.
c. All policies except Workers’ Compensation insurance shall be endorsed to (i) name Broker, its directors, officers, employees, agents and representatives as an Additional Insured, (ii) provide a waiver of subrogation clause in favor of the Additional Insured, and (iii) be primary and non-contributory. Such insurance shall also cover the actions of any subcontractor that Carrier may utilize under this Agreement.
d. In addition, the underwriters for all the above listed policies, except Workers’ Compensation, shall provide Broker thirty (30) days written notice of any cancellation or adverse material change with respect to any of the policies, including, but not limited to, a reduction in limits available to the Additional Insured, in Carrier’s insurance. Any such notice of cancellation shall not be effective until thirty (30) days after receipt by Broker. The parties understand and agree that the purpose of this paragraph is for Carrier to provide Broker with insurance coverage as an Additional Insured which will be primary and non-contributory to any insurance policy Broker might carry on its own behalf and that such coverage that Carrier supplies will respond to losses arising out of any act, omission, failure to act or negligence on the part of Carrier, its directors, officers, employees, agents and representatives.
e. Except for the higher coverage limits required in Par. 7(a) above, the insurance policies shall comply with the minimum requirement of the Federal Motor Carrier Administration and any other applicable regulatory state and local agency.
f. Carrier acknowledges that its liability, including its liability for cargo loss or damage, shall not be limited to the amount of the coverages required in this Agreement.
g. Carrier shall be responsible for ensuring that its cargo insurance policy covers any types of freight it agrees to transport under this Agreement.
h. Failure of Carrier to carry the insurances and/or endorsements required in this Section 7 will be considered a material breach of this Agreement.
8. Independent Contractor.
Carrier shall perform this Agreement as an independent contractor, and nothing herein shall be construed to be inconsistent with this relationship or status. Carrier shall be responsible for furnishing all the drivers, labor, equipment and supplies necessary to perform its transportation obligations hereunder. Carrier shall have sole and exclusive control over the manner in which Carrier and its employees and/or permitted subcontractors perform the transportation services provided for hereunder, and Carrier shall engage and employ with such individuals as it deems necessary in connection therewith. It is understood and agreed that such individuals shall be considered to be employees or subcontractors of Carrier only and shall be subject to employment, discharge discipline and control solely and exclusively by Carrier.
9. Non-Exclusive Agreement.
Carrier and Broker acknowledge and agree that this Agreement does not bind the respective parties to exclusive services to each other. Either party may enter into similar agreements with other carriers, brokers and/or freight forwarders.
10. Assignment of Rights.
Carrier hereby assigns to Broker any and all rights to collect freight charges from shipper or any responsible third parties.
11. No Back Solicitation.
Unless otherwise agreed in writing, Carrier shall not solicit freight shipments during the term of this Agreement and for a period of eighteen (18) months following termination of this Agreement for any reason from any shipper, consignor, consignee, or other customer of Broker, who is serviced by Carrier as a result of this Agreement.
Failure of either party to enforce a breach or waiver of any provision or term of this Agreement shall not be deemed to constitute a waiver of any subsequent failure or breach, and shall not affect or limit the right of either party to thereafter enforce such a term or provision.
13. Term and Termination.
The term of this Agreement shall be for one (1) year from the earlier of (i) the date of Carrier’s acknowledgment/acceptance of these Terms and Conditions of Carrier Services and (ii) performance by Carrier of transportation services on behalf of Broker. Thereafter, this Agreement shall automatically be renewed for successive one-year periods, unless terminated. Either party may terminate this Agreement at any time, with or without cause and without penalty, by providing thirty (30) days prior written notice to the other party, with email being sufficient for said notice.
In addition to confidential information protected by law, statutory or otherwise, the parties agree that all of their financial information and that of their customers, including, without limitation, freight and brokerage rates, amounts received for brokerage services, amount of freight charges collected, freight volume requirements as well as personal customer information, customer shipping or other logistics requirements shared or learned between the parties and their customers, shall be treated as confidential, and shall not be disclosed or used for any reason other than directly for the work contemplated in this Agreement without prior written consent of the party that owns said confidential information.
In the event of violation of this confidentiality paragraph, the parties agree that the remedy at law, including monetary damages, may be inadequate and that the parties shall be entitled, in addition to any other remedy the parties may have, to seek an injunction restraining the violating party from further violation of this Agreement, in which case the prevailing party shall be liable for all costs and expenses incurred, including, but not limited to, reasonable attorneys’ fees.
15. Force Majeure.
Neither party shall be liable for any failure or delay in performance under this Agreement (other than for delay in the payment of money due and payable hereunder) to the extent said failures or delays are proximately caused by circumstances beyond that party’s reasonable control and occurring without its fault or negligence, including, but not limited to Acts of God, government restrictions (including the denial or cancellation of any export or other necessary license), wars, insurrections, and/or any other cause beyond the reasonable control of the party whose performance is affected, provided that, as a condition to the claim of no liability, the party experiencing the difficulty shall give the other party notice within forty-eight (48 hours of the occurrence, with full details of the cause relied upon. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.
16. Entire Agreement.
This Agreement contains the entire understanding of the parties and supersedes all verbal or written prior agreements, arrangements, and understanding of the parties relating to the subject matter stated herein. The parties further intend that this Agreement constitutes the complete and exclusive statement of its terms, and that no extrinsic evidence may be introduced to reform this Agreement in any judicial or arbitration proceeding involving this Agreement.
In the event that the operation of any part of this Agreement is determined by a court of competent jurisdiction to be invalid or otherwise result in a violation of any international, federal, state or local law or regulation, the parties agree that such part shall be severable as to the jurisdiction in which, and to the extent to which, the operation would be invalid or result in a violation and that the remaining parts of this Agreement shall continue in full force and effect. The parties agree to give any such article or provision deemed invalid, in whole or in part, a lawful interpretation that most closely reflects the original intention of Broker and Carrier.
18. Governing Law.
THE VALIDITY, PERFORMANCE AND CONSTRUCTION OF THESE TERMS AND CONDITIONS AND ALL TRANSPORTATION DOCUMENTS HEREUNDER SHALL BE GOVERNED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA.
Any action arising out of or relating to this Agreement will be subject to exclusively venue in the Court of Common Pleas of Erie County, Pennsylvania or in the United States District Court for the Western District of Pennsylvania. Carrier hereby irrevocably consents and submits to the personal jurisdiction of said courts for all such purposes.