CONTRACT FOR TRANSPORTATION BY MOTOR CARRIER
CARRIER TERMS AND CONDITIONS
By acceptance of tendered loads from Western Trans Logistics, LLC , you (carrier) have agreed to all terms and conditions stated in this Broker-Carrier Contract. Western Trans Logistics may make future changes or modification to such terms and conditions at any time without notice, and your acceptance of tendered loads will constitute your agreement to the changes or modifications as noted on all rate confirmations. It is the carrier’s responsibility to check from time to time see if the terms have changed as loads are accepted.
Broker is a Federal Motor Carrier Safety Administration (“FMCSA”) licensed transportation broker that controls the transportation of freight under its contractual arrangements with various consignors and consignees (“Customer” or “Customers”). Broker sells, provides and arranges for transportation performed by others. In this arrangement of transportation for Customers’ freight pursuant to the terms and conditions of this CONTRACT, Broker desires to engage the transportation services of Carrier within the limits of its operating authorities. Carrier warrants that it is duly registered with FMCSA as a motor carrier in interstate and/or foreign commerce and is in all respects qualified to transport freight as required by Broker.
NOW THEREFORE in consideration of the above recitals and the covenants contained herein the parties agree as follows:
1.0 TERM OF CONTRACT AND TERMINATION. The term of this CONTRACT shall be for one year, and shall automatically renew for additional one-year periods unless written notice of non-renewal is given by either party to the other at least 30 days prior to the end of any term; PROVIDED, this CONTRACT may also be terminated at any time by either party upon 30 days’ written notice; PROVIDED FURTHER, that if either party violates any material provision of this CONTRACT, then the other party shall have the right to immediately terminate this CONTRACT upon written notice to the other party. Notwithstanding the termination of this CONTRACT, the terms of the CONTRACT shall apply to undelivered shipments tendered to the CARRIER prior to the termination date and CARRIER shall complete any such shipments. The terms of this CONTRACT, which by their nature, application, or operation are intended to survive the termination of this CONTRACT shall be deemed to survive.
2.0 CARRIER’S OPERATING AUTHORITY AND COMPLIANCE WITH LAW. Carrier represents and warrants that it is duly and legally qualified to provide, as a motor carrier, the transportation services contemplated herein. Carrier further represents and warrants that it does not have an unsatisfactory safety rating issued from the U.S. Department of Transportation (“USDOT”), and further agrees to comply with all federal, state and local laws regarding the provision of the transportation services contemplated under this CONTRACT. In the event that Carrier is requested by Broker to transport any shipment required by the U.S. Department of Transportation to be placarded as a hazardous material, the carrier agrees to be solely responsible for following Department of Transportation guidelines and requirements in the transportation of hazardous materials.
3.0 PERFORMANCE OF SERVICES. Carrier’s services under this CONTRACT are specifically designed to meet the needs of Broker under the specified rates and conditions set forth herein. Carrier shall transport all shipments provided under this CONTRACT without delay, and all occurrences which would be probable or certain to cause delay shall be immediately communicated to Broker by Carrier. This CONTRACT does not grant Carrier an exclusive right to perform the transportationrelated services for Broker or its Customer.
4.0 RECEIPTS AND BILLS OF LADING. At the time of shipment, the Carrier shall issue a bill of lading (or receipt) which may be prepared by the Broker, Broker’s Customer, or the Consignor, which shall be considered to be an addendum to this CONTRACT and in all events this CONTRACT shall govern. The bill of lading shall serve as a receipt for the goods and not as the contract for carriage. No provision of a bill of lading’s terms and conditions shall apply, (including, but not limited to, any provision purporting to “incorporate by reference” provisions of other publications such as the Carrier’s private tariffs, the National Motor Freight Classification, or the Uniform Straight Bill of Lading) and all transactions between Broker and Carrier shall be governed solely by this CONTRACT, PROVIDED HOWEVER that the Bill of Lading may also contain instructions or specifications pertaining to the transportation of the goods covered by the Bill of Lading to which the Carrier agrees to follow or perform by issuing the Bill of Lading.
4.1 Any bill of lading or other shipping document used shall be deemed to contain the following language: “The property described herein is received in apparent good order except as noted by Carrier at the time of pickup. It is mutually agreed that this shipment is received, subject to the Motor Carrier Contract entered into between the Broker and the Carrier, and supplements thereto published on the Broker’s website, to which this Bill of Lading shall be considered to be an addendum.”
4.2 All bills of lading shall be deemed “through bills of lading” to ultimate destination and Carrier shall be liable for loss, damage or delay in accordance with the terms of this CONTRACT regardless of any separate agreements entered into by Carrier with connecting carriers, subcontractors, cartage agents, or other third parties.
4.3 Under no circumstances shall Carrier prepare a freight document which lists Broker as “carrier” or “shipper.” If Customer tenders to Carrier a freight document showing Broker in any capacity other than Broker or a “Bill To” party, the parties agree that for all purposes, they will treat such document as though it showed Broker as “Broker” and Carrier as “Carrier.” 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 or the Customer, and Carrier shall cause such receipt to be signed and dated by the consignee.
4.4 Carrier shall notify Broker immediately of any exception made on the bill of lading or delivery receipt. All signed delivery receipts and bills of lading will be sent to Broker via mail, facsimile or other communication method specified by Broker, within twenty-four (24) hours of pickup or delivery.
5.0 CARRIER’S OPERATIONS. Carrier shall be wholly responsible for the performance of all transportation contemplated by this CONTRACT.
5.1 Carrier shall transport all shipments from origin to destination. Carrier shall not use “substituted service” by rail, or use other motor carriers, freight forwarders or any other carrier, third party logistic provider or broker without the prior written consent of Broker. Carrier will in any event issue a through bill of lading from origin to ultimate destination.
5.2 If Carrier uses another carrier or other third party for any portion of any shipment without the prior authorization of Broker, it shall be deemed a material breach and Broker may, at its option, terminate this CONTRACT immediately upon written notice to Carrier. Carrier will remain responsible to Broker for fulfillment of all of Carrier’s obligations under this CONTRACT while cargo is in the unauthorized carrier or party’s possession.
5.3 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, safe and sound mechanical condition and appearance; and (d) utilize only competent, able and legally licensed personnel. Carrier shall have full control of such personnel; shall perform the services hereunder as an independent contractor; and shall assume complete responsibility for all state and federal taxes, assessments, insurance (including, but not limited to, workers compensation, unemployment compensation, disability, pension and social security insurance) and any other financial obligations arising out of the transportation performed hereunder.
6.0 INDEMNITY. Carrier shall defend, indemnify, and hold Broker harmless from and against all loss, liability, damage, claim, fine, cost or expense, including reasonable attorney’s fees, arising out of or in any way related to the performance or breach of this CONTRACT by Carrier, its employees or independent contractors working for Carrier (collectively, the “Claims”), including, but not limited to, Claims for or related to personal injury (including death), property damage and Carrier’s possession, use, maintenance, custody or operation of the Equipment; provided, however, that Carrier’s indemnification and hold harmless obligations under this paragraph will not apply to any portion of such claim attributable to the negligent or intentional acts or omissions of Broker under or relating to this CONTRACT. The provisions of this paragraph shall survive cancellation, termination, or expiration of this CONTRACT.
7.0 NON-SOLICITATION. Carrier promises and agrees that during the term of this CONTRACT or any renewal hereof it will not influence or attempt to influence customers or clients of Broker nor will it contact directly or indirectly any customer or client of Broker specifically but not limited to those clients and customers of Broker that the Carrier has either picked up freight for or delivered freight to; nor shall it attempt directly or indirectly to divert Broker’s business to any individual, partnership, firm, corporation or other entity then in competition or planning to be in competition in the future with the business of Broker or any subsidiary or affiliate of Broker for a period of twenty four (24) months following last transaction with carrier. If Carrier should perform service of a transportation or warehousing nature for compensation for any of Broker’s customers without prior written authorization from Broker during the applicable time period in violation of this CONTRACT, Carrier shall pay to Broker within ten (10) days of each such violation an amount equal to ten percent (10%) of all revenues invoiced by Carrier to the solicited customer. Carrier agrees that Broker may offset any amounts due to Broker from payments otherwise due to Carrier in the event Broker fails to pay Carrier pursuant to this provision within ten (10) days of such violation.
Broker shall identify its customers to Carrier as each first load from each customer is tendered to Carrier. Carrier’s acceptance of the load and movement of the property will acknowledge that this new customer is a customer of Broker. Carrier has ten (10) days after such “first load” is accepted by Carrier to challenge, in writing, why the customer should not be considered a customer of Broker. In any case of a challenge, Broker and Carrier will agree in writing exactly how this customer will be handled. If no such agreement is reached within ten (10) days, Broker and Carrier will follow NON-SOLICITATION paragraph 7.0 as described above. The Carrier agrees it shall not either directly or indirectly influence or attempt to influence customers or clients of Broker (or any of its present or future subsidiaries or affiliates) for whom the Carrier has rendered services pursuant to this CONTRACT to divert their business to the Carrier or any individual, partnership, firm, corporation or other entity then in competition or planning to be in competition in the future with the business of Broker.
7.1 In addition to the remedies set forth in paragraph 7.0 above, Carrier acknowledges the immediate and irreparable damage that could be caused to Broker as the result of a breach by Carrier, or threatened breach, of the provisions of paragraph 7.0 above, and accordingly, Carrier specifically agrees that Broker may enforce the provisions of paragraph 7.0 above by an injunction, restraining order, or other equitable relief, as well as monetary damages. Carrier consents and stipulates to the entry of such injunctive relief in the event of a violation of this non-solicitation paragraph in the court having jurisdiction pursuant to paragraph 16.0 below. In the event Broker is required to engage legal counsel or initiate legal proceedings to enforce the provisions of this paragraph of the CONTRACT, Carrier shall be liable for all reasonable attorneys’ fees and costs incurred in connection therewith.
8.0 INSURANCE. CARRIER shall at all times during the term of this CONTRACT maintain in full force and effect the following minimum insurance coverage, with insurers satisfactory to BROKER:
|Nature of Insurance||Amount|
|Automobile Public Liability for property damages and bodily injury||$1,000,000 per occurrence|
|All Risk type coverage Cargo Liability Policy for Liability for Loss, Damage or Delay to Cargo in CARRIER’S operations||$100,000 per occurrence|
|Workers’ Compensation||Statutory Limits|
8.1 Before commencement of any services, Carrier will deliver to Broker Certificates evidencing all required insurance. These certificates will name Broker as an “Additional Insured” by endorsement on the Automobile Public Liability and Commercial General Liability Policies (or in Broker’s sole discretion, a certificate holder) ; and said policies shall provide that i) Broker shall not be obligated to pay premiums for any such insurance, ii) such insurance shall be primary with respect to all insured and iii) such insurance shall be applicable separately to each insured and shall cover claims, suits, actions or proceedings by each insured against any other insured.
8.2 Deductibles amount not covered by insurance are Carrier’s responsibility. Carrier remains liable in full, less amounts paid by Carrier’s insurance company.
8.3 Carrier shall immediately notify Broker if any insurance coverage is cancelled, reduced, or otherwise invalidated.
8.4 Cargo Liability Insurance. In addition Carrier’s cargo liability insurance policy shall not exclude coverage for products being shipped pursuant to this CONTRACT.
8.5 Insurance Policies, Copies. Upon request of Broker, Carrier shall deliver to Broker full and complete copies of the insurance policies required under this CONTRACT. If a copy of said policies is not available, Carrier shall provide a copy of the pages of said policies containing the coverage in said policies, and all exceptions, exclusions and endorsement to the coverage provided therein.
8.6 No Representation as to Adequacy. It is expressly understood that Broker does not represent that the types or minimum limits of the insurance set forth herein are adequate to protect the Carrier’s interests.
9.0 LIABILITY FOR LOSS OR DAMAGE TO SHIPMENTS. Carrier assumes the liability required of an interstate motor carrier for “full actual loss” under 49 U.S.C. § 14706 (“Carmack”), as written and in effect as of January 1, 1996, regardless of whether the shipment is interstate, intrastate, or international in nature, for all loss, damage, injury to, or delay of goods tendered to Carrier hereunder up to a maximum liability of $100,000 per shipment. The measure of damages for loss, damage, injury or delay of goods shall be, but is not limited to, the original invoice value charged to the Consignee or the destination market value of the lost or damaged goods, whichever is higher, plus freight charges, administrative costs, warehousing costs, transportation costs, and all other assessorial charges on loss and damage claims.
9.1 It is understood and agreed that all shipments shall be deemed in transit, and Carrier’s liability shall not revert to that of a warehouseman, where the Consignee has not refused delivery and Carrier is requested or required to temporarily store a shipment prior to completing delivery because the Consignee is not ready to accept delivery, or Carrier is required to re-deliver because Carrier missed a delivery appointment, or Carrier is otherwise unable to complete delivery as originally scheduled to the Consignee. In the event that any shipment is refused by the Consignee or that Carrier is unable to complete delivery for reasons other than those set forth above, Carrier shall place the shipment in Carrier’s terminal or in a public warehouse or other suitable storage facility under reasonable security.
9.2 Prior to assessing storage charges, Carrier must first call the Broker and advise Broker of the reason that the shipment is being held in storage. Storage charges will not begin to accrue until 48 hours after telephone notification to the Broker. If the Carrier is unable to contact Broker by telephone, storage charges will not begin to accrue until 72 hours after a certified letter is sent to and received by Broker. Carrier must type the name of the person notified at Broker’s location on any freight bills for storage charges. Freight refused because of shortages, damage or broken seals will not be assessed storage charges. If Broker fails to give Carrier delivery instructions or otherwise take possession of the freight within 30 days of receiving proper notification hereunder, Carrier may issue a final written notice to Broker giving the Broker 10 days to provide delivery instructions or take possession of the freight. If Broker fails to respond to this final notice, Carrier may dispose of the shipment and Carrier shall apply the salvage proceeds against any outstanding freight charges or storage charges and remit the remaining portion to Broker. Until such time Carrier’s liability for loss or damage as a carrier under this paragraph shall continue and Carrier may not dispose or salvage the shipment without written authorization of the Broker.
9.3 In the event the parties agree to a limit of liability less than full actual loss, such limitation(s) on Carrier’s liability shall not apply if the damage or loss of cargo is the result of willful misconduct, gross negligence, conversion or material breach of this CONTRACT by Carrier or its directors, officers, agents or employees, and Broker shall be reimbursed for its full actual loss.
9.4 Payments by Carrier to Broker or its Customer pursuant to the provisions of this section, shall be made within thirty (30) days following receipt by Carrier of Broker’s or Customer’s invoice and supporting documentation for the claim. Broker may withhold payment on any loads to Carrier to satisfy claims for loss of damaged property or shortages, or advances to or payments made on behalf of the Carrier, for the shipment being settled or for any shipments under this CONTRACT in relation to Carrier.
9.5 Replacement Shipments. Carrier acknowledges that Broker may utilize other carriers to facilitate the movement of delayed shipments, or to ship replacement goods. If Carrier fails to make timely delivery of any shipment, Carrier shall be responsible for reasonable and necessary costs, charges, fees and expenses resulting from such delay.
9.6 Return of Damaged Shipments. Carrier shall return all damaged shipments at its expense to the point of origin or, with Carrier’s consent, to other points as instructed by Broker for the purpose of inspection and mitigation of damages.
9.7 All carriers hauling food or food ingredient for Broker, Broker’s Customers, Shippers or Agents agree to follow the Food Safety Modernization Act Final Rule on Sanitary Transportation of Human and Animal Food (FSMA). It is the carrier’s responsibility to understand the FSMA requirements and guidelines in regard to transporting, handling, and/or warehousing any food it hauls and/or stores on behalf of Broker, Broker’s Customers, Shippers or Agents. Carrier accepts any liability associated with not following FSMA guidelines including, but not limited to, rejection, storage costs, all transportation costs, inspection costs, testing fees, and any costs associated with a rejection claim due to failure to follow FSMA guidelines. A carrier’s failure to follow the FSMA guidelines is a Breach of Carrier’s CONTRACT with Broker and may result in claim.
10.0 WAIVER OF CARRIER’S LIEN. Carrier shall not withhold any goods of the Customer on account of any dispute as to rates or any alleged failure of Broker to pay charges incurred under this CONTRACT. Carrier is relying upon the general credit of Broker and hereby waives and releases all liens which Carrier might otherwise have to any goods of Broker or its Customer in the possession or control of Carrier.
11.0 PAYMENTS. Carrier will charge and Broker will pay for transportation services performed under this CONTRACT the rates and charges as shown on separate Rate Confirmation Sheets to be signed, dated and agreed to by Carrier and Broker before each shipment made under this CONTRACT. Carrier represents and warrants that there are no other applicable rates or charges except those established in this CONTRACT or in any Rate Confirmation Sheet signed by Broker. Payment by Broker will be made within thirty (30) days of receipt via mail by Broker of Carrier’s freight bill, bill of lading, clear delivery receipt, and any other necessary billing documents enabling Broker to ascertain that service has been provided at the agreed upon charge. A copy of the bill of lading and other receipts needs to be faxed or emailed to Broker by carrier within twenty four (24) hours to eliminate discrepancies and/or issues relating to claims. In the event service is provided and it is subsequently discovered that there was no applicable rate in the existing Schedule of Rates or supplements, the parties agree that the rate paid by Broker and collected by Carrier shall be deemed to be the agreed upon contract rate.
11.1 Carrier agrees that Broker has the exclusive right to handle all billing of freight charges to the Customer for the transportation services provided herein, and, as such, Carrier agrees to refrain from all collection efforts against the shipper, receiver, consignor, consignee or the Customer. Carrier hereby designates Broker as its agent to receive payment of Carrier’s freight and other charges. Carrier further agrees that Broker has the discretionary right to offset any payments owed to Carrier hereunder for liability incurred by Carrier pursuant to Paragraph 9 of this CONTRACT.
12.0 SUB-CONTRACT PROHIBITION. Carrier specifically agrees that all freight tendered to it by Broker shall be transported on equipment operated only under the authority of Carrier, and that Carrier shall not in any manner sub-contract, broker, or in any other form arrange for the freight to be transported by a third party without the prior written consent of Broker. In the event of Carrier sub-contracting, brokering or any other form arrange for the freight to be transported by a third party without the prior written consent of Broker, Carrier agrees to an extended payment terms of nineteen (19) months from receipt of invoice to ensure payment is made to unauthorized third party.
13.0 ASSIGNMENT/MODIFICATION/BENEFIT OF CONTRACT. This CONTRACT contains all the terms and conditions between the parties, and it shall not be altered or amended except in writing signed by all parties or pursuant to paragraph 13.1 below. This CONTRACT may not be assigned or transferred in whole or in part, and supersedes all other CONTRACTs and all tariffs, rates, classifications and schedules published, filed or otherwise maintained by Carrier. This CONTRACT shall be binding upon and inure to the benefit of the parties hereto.
13.1 REVISIONS AND AMENDMENTS PUBLISHED ON BROKER’S WEBSITE. This CONTRACT may also be supplemented or superseded by the terms and conditions published on Broker’s website. In such event, the terms and conditions published on Broker’s website on the date that the Broker tenders a load to the Carrier shall be applicable. To the extent the terms and conditions are inconsistent with this CONTRACT, the terms and conditions published on the Broker’s website shall supersede this CONTRACT.
14.0 SEVERABILITY. In the event that the operation of any portion of this CONTRACT results in a violation of any law, the parties agree that such portion shall be severed and that the remaining provisions of this CONTRACT shall continue in full force and effect.
15.0 WAIVER. Carrier and Broker expressly waive any and all rights and remedies allowed under 49 U.S.C. 14101 to the extent that such rights and remedies conflict with this CONTRACT. Failure of Broker to insist upon Carrier’s performance under this CONTRACT or to exercise any right or privilege shall not be a waiver of any Broker’s rights or privileges herein.
16.0 GOVERNING LAW, JURISDICTION, AND VENUE. Any action to enforce any provisions of this CONTRACT shall be brought in the United States District Court of the state of California and Carrier hereby consents to the jurisdiction and venue of such Court for all purposes, including the taking of depositions. If for any reason such Court does not have jurisdiction, then such action shall be brought in the state Court located in the county or city in which the Broker is located and Carrier hereby consents to the jurisdiction of such Court; provided, however, actions for loss or damage to shipments for recovery may be commenced (at the option of Broker or claimant) in such other jurisdiction and venue as may be authorized under 49 U.S.C. § 14706 and Carrier hereby consents to the jurisdiction and venue of such Court for all purposes, including the taking of depositions. The provisions of this CONTRACT shall be construed and enforced according to the laws of the state of California to the extent that the latter are not inconsistent with applicable federal statutes and regulations. Costs and reasonable attorneys’ fees shall be awarded to the prevailing party in any action.
17.0 NOTICES. Any written notice herein provided for shall be sent by registered mail, return receipt requested, to the party to be notified at the address designated in writing by such party for this purpose.
18.0 BINDING, ETC. This CONTRACT shall be binding upon the respective heirs, executors, personal representatives, successors and assigns of the parties hereto.
19.0 ATTORNEY’S FEES. In the event it becomes necessary to enforce any of the terms or conditions of this CONTRACT, the prevailing party shall be awarded a reasonable attorney’s fee in addition to any costs allowed by law.
20.0 INFORMATION AND CONFIDENTIALITY. Except to the extent disclosure may be required by law, and then disclosure may be made only to the extent of such requirement and after the Carrier has notified Broker of the requirement, Carrier agrees to safeguard and treat as confidential information pertaining to all traffic tendered by Broker, including, without limitation, origins, destinations, products, volume, rates and charges, the identity of Broker’s customers and suppliers, and the products purchased by or sold by Broker’s customers. The obligations set forth in this paragraph shall survive, indefinitely, the expiration or earlier termination of this CONTRACT.
21.0 EVIDENCE OF CARRIER’S FINANCIAL FITNESS. Carrier agrees to provide Broker evidence of its financial condition upon request and in a form acceptable to Broker.
22.0 MINIMUM VOLUME. There are no minimum volumes of freight contemplated by this CONTRACT.
“Broker-Carrier Contract” Western Trans Logistics, LLC Copyright © 2011