The entire agreement between Logistics Plus, Inc. (herein referred to as “LP”) (MC-351651-B, DOT No. 2224658) and the enrolled broker (herein referred to as “Enrolled Broker”), consists of: (i) these Terms and Conditions of Co-Brokerage Services and (ii) any additional terms and conditions proposed by LP in writing and signed by broker ((i) and (ii) collectively, the “Agreement”). Enrolled Broker and LP shall collectively be referred to as the “Parties”, and individually as a “Party” herein. The Agreement shall become binding when accepted by Enrolled Broker either by acknowledgment or performance by Enrolled Broker. These Terms and Conditions of Co-Brokerage Services shall apply to all shipments received by either Party for transportation and may be amended from time to time by LP in its sole discretion. Any terms and conditions proposed by Enrolled Broker which are additional to or inconsistent with the terms and conditions contained in the Agreement shall be void, unless specifically agreed to by LP in writing, signed by Enrolled Broker’s duly authorized representative. LP reserves the right, in its sole discretion, to refuse to broker/schedule any shipment at any time.

RECITALS

(a) The Parties are licensed property brokers as noted above, and authorized by the FMCSA (Federal Motor Carrier Safety Administration, U.S. Department of Transportation) to arrange for transportation of freight by motor vehicles (including draymen) and/or railroad intermodal service and desire to work with each other to arrange the transportation of freight on behalf of the shipper customers; and

(b) This Agreement shall apply to transactions where the broker providing the shipping customer(s) whose freight is to be transported, is designated as Broker A, and the broker who contracts with motor carrier (including draymen), and/or rail carriers to transport freight, is designated as Broker B; and

(c) The terms of this Agreement are intended to apply to all co-brokered transactions between the Parties, where either of them may be acting in either capacity as Broker A or B.

(d) The licenses of the Parties are not subject to threatened or pending revocation or suspension; each Party has and will maintain during the term of this Agreement the surety bond required of property brokers to be filed with the FMCSA; and the Parties are, and will be during the term of this Agreement, in compliance with all applicable state and federal regulations pertaining to the operation of their businesses.

NOW THEREFORE, in consideration of the terms, covenants, and conditions herein set forth, it is agreed:

1. Broker B Responsibilities: Broker B shall be solely responsible for exercising due diligence in selecting carriers for the performance of this Agreement, which includes, but is not limited to: verifying the carriers operation authority (state and/or federal), obtaining proof of the carrier insurance coverage, with coverage no less than $1,000,000 for general liability, $1,000,000 auto liability, and $100,000 cargo liability; verifying the carrier does not have an “Unsatisfactory” safety rating with the FMCSA; executing a written contract with carriers, which includes carrier’s representation of compliance with all applicable state and federal safety regulations, and for intermodal shipments, contracting only with motor carriers who have executed, and represent that they are in compliance with, the terms of a current Uniform Intermodal Interchange Agreement (UIIA).
2. Broker B Insurance: Broker B shall procure and maintain its own general liability insurance coverage for the minimum amount of $1,000,000 and shall provide Broker A with proof of such insurance.
3. Prohibition against Re—Brokering: Broker B shall not, nor will it allow a carrier to, re-broker, sub-broker, subcontract, assign, interline, or warehouse any shipments hereunder without the prior written consent of Broker A.
4. Billing and Payments:
(a) Broker A is authorized to, and shall be responsible for, billing and collecting from shippers, consignees, and third parties responsible for payment of its charges. Broker A shall pay Broker B for agreed upon charges (commissions and carrier charges as specified by rate schedule or load confirmations, which are hereby incorporated by reference) within thirty (30) days of receipt of Brokers B’s invoice and proof of delivery. Broker B shall pay the motor carrier(s)/railroads as required under its written contract(s) with such carrier(s) regardless of whether Broker A timely pays Broker B. In the event that payments to carrier(s) are not made in accordance with the payment term of the Broker B/carrier agreement(s), and the carrier is in compliance with that agreement, Broker A may pay the delivering carrier(s) directly upon written notification to Broker B and, in doing so, shall discharge its entire obligation to pay Broker B. Broker B shall not bill or collect freight charges from Broker A’s customer/shipper, consignees, or other parties responsible for payment provided Broker A has complied with the term of this Agreement.
(b) Broker B shall require each motor carrier to enter into a written agreement with Broker B pursuant to which the carrier appoints Broker B as the carrier’s agent for the purpose of billing and collecting all charges owed to the carrier in connection with the transportation and handling of the shipper’s load. Further, such agreement shall require the carrier to acknowledge and agree that carrier will look solely to Broker B for payment of such charges and that payment from shipper/Broker A to Broker B shall release and discharge shipper/Broker A from any liability to such motor carrier.
5. Confidentiality: The Parties agree that they shall not use or disclose any of the contents of this Agreement including, but not limited to, all sales and marketing information received from each other or from shipper customers or carriers providing transportation services to them, financial information received, amounts charged to and paid by shippers, consignees or others responsible for payment, amounts of freight charges billed and received, and motor carrier rates, given or exchanged with any person or entity except as necessary to conduct the business contemplated hereunder. Notwithstanding the foregoing, if a reasonable person would recognize information received hereunder as confidential or proprietary considering the nature of the information and the circumstances of disclosure, such information shall be deemed confidential for the purposes of this Agreement, and each Party shall use all reasonable means, not less than that used to protect their own confidential or proprietary information, to safeguard the information from disclosure.
6. No Back Solicitation: In recognition of the fact that each of the Parties has invested substantial effort and money in developing its customers and each Party may separately procure new accounts during the term of this Agreement, the Parties expressly agree that:
(a) Neither Party shall solicit business from or perform brokerage services directly or indirectly on behalf of any shippers/consignees/third-parties first introduced to it by the other Party under this Agreement, or through the performance of this Agreement. However, if a Party has conducted business with such shippers/ consignees/third-parties prior to entering into this Agreement, then that Party may continue to solicit those traffic lanes previously served, provided said Party shall be responsible for submitting documentation to the other Party which is sufficient to establish such prior service. “Traffic lanes” for the purpose of this Agreement shall mean origination locations to destination locations for both truckload and LTL shipments.
(b) It is further agreed that this non-solicitation provision shall be in force and effect during the term of this Agreement and for a period of one (1) year from the date of the termination of this Agreement for any reason.
(c) In the event of non-compliance with the specific provisions of this paragraph, the breaching Party shall, upon discovery of breach by the aggrieved Party, be liable to the aggrieved Party for fifteen percent (15%) of the gross transportation revenue received by the breaching Party from said shipper(s)/consignees/third-parties within one (1) year after the date of termination of this Agreement.
7. Termination: This Agreement shall be in effect for a period of one (1) year beginning on the Effective Date and shall be automatically renewed for like periods unless terminated by either Party for any reason, upon at least thirty (30) days’ advance written notice. Termination of this Agreement shall not relieve either Party from completing and performing their obligation(s) to each other and to carriers and/or shipper customers, or any of the obligations arising out of the terms contained in this Agreement.
8. Indemnification: Each Party shall mutually defend, indemnify, and hold the other Party and its affiliates harmless from all third-party claims, loss, damages, expenses, or liability, including reasonable attorney’s fees, resulting from any negligent performance of this Agreement, willful misconduct, or violation of any of the terms of this Agreement. Unless otherwise provided herein, or mutually agreed to in writing signed by the Parties in advance, neither Party shall be liable to the other for consequential, incidental, indirect, lost profits, or punitive damages of any kind.
9. Notice of claim: The Parties shall provide each other with immediate notice, by means of registered or certified mail, return receipt requested, of any cargo loss or damage claims as well as any other claim arising out of this Agreement and will reasonably cooperate with each other in resolution of any such claim(s). No claim will be accepted which is received more than 180 days from the delivery date, or in the event of non-delivery, the scheduled delivery date.
10. Disputes: In the event of a dispute arising out of this Agreement the Parties shall provide each other with detailed written notice and fifteen (15) days in which to cure any alleged default. If no satisfactory correction is completed (or is not substantially in process), legal proceedings may be commenced no later than two (2) years from date of the last occurrence of default.
11. Governing Law; Venue: This Agreement and the rights of the Parties shall be interpreted and governed exclusively by the laws of the Commonwealth of Pennsylvania, without regard to its conflicts of law principles. Any action or proceeding arising out of or related to this Agreement shall be brought in the state or federal courts located in Erie County, Pennsylvania. Each Party waives its right to trial of any issue by jury.
12. No Assignment: This agreement may not be transferred, assigned, or pledged by either Party without a prior written consent of the other Party. This Agreement shall be binding upon and shall inure to the benefit of the Parties, their heirs, executors’ administrators, successors and permitted assigns.
13. Notices: Unless the Parties notify each other in writing of a change of address, any and all notice required or permitted to be given under this Agreement shall be either: (a) sent by recognized currier service for delivery within two (2) business days, (b) in writing and mailed by registered or certified mail, return receipt requested, or (c) sent via email and shall be addressed at the physical address first set forth above or the email address shown in the signature lines below.
14. Validity/Survival: If any provision of this Agreement shall be held invalid, illegal, or unenforceable, the enforceability or validity of the remaining provisions of this Agreement shall not be affected and shall remain in full effect. The expiration or termination of this Agreement will not affect the rights and obligations of the Parties accrued prior to the effective date of the expiration or termination. Paragraphs 4, 5, 6, 7 and 8 of this Agreement will survive any expiration or termination of this Agreement.
15. Waiver: No waiver of any provision of this Agreement, or of the breach thereof, shall be constructed as a continuing waiver or shall constitute waiver of any other provision or breach.
16. Integration: This Agreement contains the entire understanding of the Parties with respect to the subject matter contained herein, and supersedes all prior agreements and understandings, verbal and/or written between the Parties with respect to such subject matter. The Parties intend that no extrinsic evidence may be introduced to reform this Agreement in any legal or equitable proceeding. This Agreement does not supersede any existing agreement that either Party has with any shipper or carrier.
17. Independent Contractors: The relationship of the Parties to each other shall at all times be that of independent contractors. None of the terms of this Agreement, or any act or omission of either Party, shall be construed for any purpose to express or imply a joint venture, partnership, principal/agent, fiduciary, or employer/employee relationship between the Parties. Each Party shall provide sole supervisions and shall have exclusive control over the actions and operations of its employees and agents used to perform its services hereunder. Neither Party has any right to control, discipline or direct the performance of any employees, or agents of the other Party. Neither Party shall represent to any third-party that it is anything other than an independent contractor in its relationship to the other Party. Accordingly, each person signing this Agreement warrant they are authorized to do so and intend to bind the respective Party for which they sign.