TRANSPORTATION BROKER SERVICES AGREEMENT
Agreement made this _____ day of _____, by and between Bahr Transportation, LLC d/b/a Convenient Automotive Transport (hereinafter “BROKER”), a Registered Property Broker, Lic. No. _MC1017764__, U.S. DOT No. 3240573, and _____________________________________________, a corporation, having an office at ___________________________________________________ (“hereinafter “Customer” and/or “Shipper”)(collectively “Parties”).
WHEREAS, BROKER, as an independent contractor and Commercial Freight Broker arranging for the transportation of freight, desires to arrange for transportation services (the “Services”) to Customerin connection with the transportation of commodities (“Commodities”) used and/or transported in the course of Customer’s business, for interstate and interprovincial transportation activities within and between the United States, Canada and Mexico (the “Territory”);
WHEREAS, Customer desires to use and avail itself of such Services in accordance with this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and promises set forth
herein, the parties agree as follows:
I. TRANSPORTATION BROKER SERVICES
A. General Services
Subject to the provisions of this Agreement, Customeragrees to tender, from time to time, to BROKER and BROKERagrees to arrange for the transportation of loads consisting of Commodities tendered by Customer. Such Servicesprovided by BROKER shall include, at a minimum, the following:
1. Selection of and arrangements with all motor carriers (“Carrier” or “Carriers”) providing the actual transportation of Customer’sproduct or Commodities from origin to destination within the Territory(generally referred to as “North America”);
2. Providing operating and administrative support as necessary to manage the Transportation Broker Services provided herein; and
3. Preparation of all relevant and applicable transportation documents to be
submitted to the Carrier(s) for each shipment of Commodities hereunder, with the exception of the issuance of a bill of lading which will be issued by Customer and provided to the Carrier(s). The bill of lading shall act as a receipt only and in no event shall the terms and conditions of the bill of lading be binding on the Parties.
4. Customer agrees that BROKER is a freight broker engaged in the business of arranging for the movement of our Customer’sfreight via independent third party Carrier(s)which are the assigned “motor carrier.” Since BROKER is a transportation freight broker, Customer agrees that inclusion of BROKER on any bill of lading as a carrier shall be for the convenience of Customer only and shall not change BROKER’s status as a property broker or the assigned motor carrier’s status as the motor carrier.
5. BROKER agrees to notify Customer of any accident or other event of
which BROKER is apprised of by the Carriers(s) and which prevents the Carrier from making a timely or safe delivery.
B. Term and Termination.
1. The term of this Agreement shall be for one (1) year and shall automatically be renewed for successive one (1) year periods; provided, however, that either BROKERor Customer may terminate this Agreement with or without cause at any time by giving the other Party thirty (30) days prior written notice.
2. Either BROKER or Customer may additionally terminate this Agreement immediately upon written notice to the other of the following events:
a. Breach of any covenant, obligation, condition or requirements imposed by this Agreement if such breach continues for a period of ten (10) days after written notice thereof; or
b. A Party becomes insolvent, unable to pay its debts in a timely manner, seeks protection under bankruptcy or receivership laws, or is forced into bankruptcy or receivership.
3. Customermay additionally terminate this Agreement immediately upon written notice if:
a. BROKERloses its operating authority;
b. Fails to procure or maintain insurance coverages required by this Agreement; or
c. Utilizes the services of Carriers that do not hold the requisite
authority to provide services required by Customer.
C. Tender of Loads or Commodities for Transportation
Customer may, but shall not be obligated to, issue an order (“Order” or “Orders”) for the Services during the term of this Agreement (as defined herein-above). An Orderissued shall set forth the details related to the Services including date and time of pick up, location of pick up, date and time of delivery, location of delivery, value of the Commodities, weight of the Commodities, and any special instructions or requirements for the Services. An Orderdoes not create contractual rights and obligations. Upon receipt of an Order, BROKER may, but shall not be obligated to, issue to Customer a Broker To Shipper Load Confirmation Sheet which will confirm acceptance of the request for transportation freight brokering services, and transportation of the Commodities, and confirm the details of Order and the transportation services required. Any Broker To Shipper Load Confirmation Sheets issued by BROKER to Customer is incorporated herein by reference and made a part of this Agreement. Notwithstanding that a Broker To Shipper Load Confirmation Sheet does not refer to this Agreement, such document issued for Services during the Term of this Agreement from BROKER to Customer, shall be deemed to have been issued pursuant to this Agreement unless the parties expressly agree in writing to the contrary.
If Commodities are tendered without Order or Broker To Shipper Load Confirmation Sheet, but the load is accepted and Services provided, this agreement will control the terms and conditions of the transportation of those Commoditiesas if an Order and Broker To Shipper Load Confirmation Sheet had been prepared and agreed to as between BROKER and Customer.
II. PAYMENT TERMS
As full and complete compensation to BROKERfor the Services provided hereunder, Customer shall pay in accordance with the spot rate quote as set forth in any Broker To Shipper Load Confirmation Sheet. Customer agrees that any such quote is only good for a short period and subject to market fluctuation. As the market fluctuates the spot quote will be verified and/or updated if the quote is not activated by tender of the load and/or Commoditieson the day the rate is given. Accessorial charges or other adjustments (such as for detention, layover, driver unload, truck ordered not used, custom fees, etc.) may increase the quoted rates based on the service performed. Customer is responsible for paying the actual rates as shown on the Invoicesubmitted by BROKER.
· Detention: $75 per hour (after 2 hours free for appointments and 6 hours free for FCFS facilities. This applies to both pickup and delivery locations.)
· Truck Order Not Used: $150 (this applies to any time a truck is cancelled, after it has been dispatched).
· Layover: $300 per night
If rates are negotiated between the Parties and not otherwise confirmed in writing by way of a Broker To Shipper Load Confirmation Sheet, such rates shall be considered “written,” and shall be binding upon BROKER’s invoice to Customerand Customer’s payment to BROKER. In the event that Servicesare provided and it is subsequently discovered that there was no applicable or understood rate, the Parties agree that the charges invoiced by BROKERshall be the agreed upon contract rate of the Parties for the services provided, unless such payment is objected to by Customer within ten (10) days of the invoice date.
BROKER shall be solely responsible for making payments of freight and other accessorial charges to Carriers utilized by BROKER to provide the transportation services. BROKER will implement and maintain in their written contracts with Carriers that BROKER has the exclusive right to handle all billing of freight charges to the Customer for the transportation services provided, and as such, the Carrier shall agree to refrain from all collection efforts against the Customer or its customers.
BROKER shall submit invoices to Customer for fee(s) for Services due and owing based upon issued Broker To Shipper Load Confirmation Sheets and/or the Services performed. Customeragrees to pay BROKER within thirty (30) days of receiving invoice, without deduction or setoff unless agreed to in writing by the Parties, with interest accruing monthly at a rate of one percent (8%) on past due invoices.
C. Collection Costs
In the event of any action by BROKER to collect charges due hereunder, Customershall pay to BROKER the amount of the invoice, plus interest at 8%, plus an amount equal to all costs and reasonable attorneys’ fees incurred by BROKERto collect sums due to it pursuant to this Agreement.
D. Lien for Unpaid Charges
Customer grants to BROKER a lien for retention of Commodities to secure payment of any unpaid charges due to BROKER hereunder.
To the extent practicable, communications between BROKER and Customer, including, but not limited to, invoicing, payment, Rate Confirmation Agreements, and proofs of delivery, will be electronic in a format mutually agreeable to the Parties. The Parties hereby waive any objection to the authenticity of such electronic communications as long as such communications comply with the Electronic Signatures in Global and National Commerce Act, the Uniform Electronic Transactions Act, or related legislation as applicable.
IV. COMPLIANCE WITH LAW
This Agreement shall be subject to all federal, state and provincial statutes, and the rules and regulations of the regulatory bodies having jurisdiction; and in the event of any conflict therewith, this Agreement shall be amended pursuant to the written agreement of the parties to meet such requirements and as so modified, shall continue in full force and effect as to the parties hereto.
A. Continuing Obligation to Maintain Licenses and Permits
BROKER shall, at its sole cost and expense, procure and maintain all such licenses and permits as may be required by local, state or federal authorities with respect to BROKER’s performance of the Services provided hereunder.
BROKER shall promptly notify Customer of any of the following which is connected with the Servicesprovided under this Agreement: (1) any indictment, material lawsuit, or administrative or other proceeding issued or instituted by any local, state or federal governmental entity or agency; or, (2) the revocation of any license, permit or other document issued to BROKERby any such entity or agency.
C. ICCTA and Waiver
To the extent that any of the Servicesperformed by BROKER hereunder are deemed or claimed to be those of a motor carrier, freight forwarder and/or broker, as those terms are defined in 49 U.S.C. §13201, et seq., this Agreement is and for all purposes shall be construed to be a contract pursuant to 49 U.S.C. §14101(b)(1). Furthermore, this Agreement shall govern in all respects the business relationship between Customer and BROKER. Except to otherwise the extent prohibited by law, the parties hereto mutually waive any and all remedies available to either Customeror BROKER under the provisions of the ICC Termination Act of 1995 (“ICCTA”), namely Part B thereof (§§13101 to 14901, et seq.), including, without limitation, Sections 13706, 13707, 13708, 13709, 13710, 14704, 14705 and 14706 thereof, and all regulations applicable thereto.
V. INDEPENDENT CONTRACTOR
A. Status of BROKER
Except as otherwise provided for hereunder, BROKERhas no authority to employ or engage any person or organization as an agent of Customer for purposes of providing Services hereunder, nor any person or organization providing Serviceshereunder shall be deemed to be employed by Customer. BROKER agrees that it has no right or authority to incur obligations of any kind in the name of or for the account of Customer, nor to commit or bind Customer to any contract or obligation, except as specifically authorized hereunder. BROKER shall have full and complete responsibility for payment to any person or organization providing contract services to Customer, subject to the terms and conditions set forth below. BROKER agrees to hold harmless and indemnify Customer from and against any claims for freight charges made by any Carrier utilized by BROKERand not paid by BROKER.
B. BROKER’s Independent Contractor Status and Employees
1. BROKERis and shall be at all times an independent contractor and shall have exclusive control and direction of its employees engaged in the Services. BROKER assumes full responsibility for the payment of local, state and federal payroll taxes or contributions or taxes for unemployment insurance, old age pensions, worker’s compensation, or other social security and related protection with respect to BROKER’s employees engaged in the performance of such Services and agrees to comply with applicable rules and regulations promulgated under such laws.
2. BROKERrepresents and warrants that during the Termit shall either: (a) maintain adequate workers’ compensation insurance and other employee insurance coverages required by law; or (b) pay or cause to be paid any and all assessments or contributions required to be paid pursuant to applicable workers’ compensation law.
3. BROKERwill not discriminate against any employee or applicant for employment because of race, color, religion, sex or national original and shall comply with all laws, regulations and executive orders pertaining to equal employment opportunities and affirmative action to which it may be directly or indirectly subject.
4. BROKERwill seek to conduct its Services in a manner which will not cause any inconvenience or offense to Customer or Customer’s customers, and will instruct its employees and agents (including without limitation employees of such agents), subcontractors and independent contractions (including without limitation employees of such contractors) of BROKER who perform Services to refrain from entering into any disputes or controversies with Customeror Customer’s customers.
BROKERshall require by written contract that each Carrier providing transportation services to Customer as follows:
A. That it is duly and legally licensed under applicable state, provincial and federal law to provide any transportation services required under this Agreement, and that it does not have an unsatisfactory or unfit safety rating issued by the United States Department of Transportation (“DOT”) or any state or provincial authority with jurisdiction over its operations.
B. That it will furnish all equipment necessary at its sole cost and expense and bear all expenses related to the use or operation of the equipment; that it will utilize only legally licensed personnel qualified in accordance with governing law; and that it shall provide all services as an independent contractor and assume responsibility for financial obligations arising out of the transportation services.
C. That it shall accept liability as a motor carrier under the Carmack Amendment (as currently codified at 49 U.S.C. § 14706 and as amended from time to time) for loss, damage, or delay to goods tendered by or on behalf of Customer.
D. That it will, at its sole cost and expense, procure and maintain during any period in which it handles shipments tendered by or to Customer the following insurance coverages:
(i) Motor Truck Cargo insurance or a superior equivalent, with limits for the full value of the cargo under carriage subject to a minimum limit never less than US $100,000 per shipment, a deductible no greater than US $10,000 per shipment and at least the same coverage limit and deductible per shipment while in storage or at a storage facility enroute to the consignee,
(ii) Commercial Automobile Liability insurance with a combined single limit of not less than US $1,000,000 per occurrence and without aggregate limits,
(iii) if CARRIER provides Transportation Services for hazardous materials under United States Department of Transportation (“DOT”) regulations, public insurance including Commercial Automobile insurance limits required for the commodity transported under 49 C.F.R § 387.7 and 387.9 (or successor regulations thereto) and statutory required Commercial Automobile insurance limits pertaining to the hazard classification of the cargo as defined by DOT, an MCS-90 and Broadened Pollution Liability endorsements for limits required by law and full policy limits.
E. That if and when CARRIER provides Servicesthat involve origins and destinations solely within Canada, CARRIER shall be current in its remittances to the appropriate Worker’s Compensation Board of the CARRIER’s province, shall provide a certificate issued by the appropriate Worker’s Compensation Board of the CARRIER’s province certifying that the CARRIER is not delinquent and is current in its remittances to that authority, and shall have such other insurance or higher coverage limits required by applicable Canadian national or provincial law or regulation. Insurance will meet or exceed the requirements of federal, state and/or Provincial regulatory bodies having jurisdiction over CARRIER’s performances pursuant to this agreement.
F. During this Contract’s term, the insurance policies required of Carrierand any replacement policies will (i) insure the interests of BROKER and, (ii) cover all drivers, equipment and cargo used in providing Servicesand (iii) not contain any exclusions or restrictions as to designated premises or project, pertaining to unattended equipment or cargo, for unscheduled equipment, for unscheduled drivers or cargo, for fraud or infidelity, for tarp warranty, for wetness or dampness, for geographical location in the United States, for trailers unattached to the power unit, or for a particular radius of operation
G. CARRIER will be required to provide its cargo insurance carrier with all records that relate to a loss and permit copies and abstracts to be made from them upon request. The following rules shall apply: (a) Destination market value for lost or damaged Commoditiesand/or cargo, no special or consequential damages unless by special agreement; (b) Claims will be filed with CARRIERby Customer; (c) claims notification procedures will be followed in accordance with procedure described in 49 C.F.R. 370.1-11. CARRIER will agree to provide any insurance coverage’s required by any government body for the types of transportation and related services specified in load confirmation communications received from Broker.
H. CARRIERwill be required to insure that all insurance required by this Agreement must be written by an insurance company having a Best’s rating of “B+” VII or better and must be authorized to do business under the laws of the state(s) or province(s) in which CARRIERprovides the transportation and related services as specified in load confirmation communications received from BROKER. CARRIER’s insurance shall be primary and required to respond and pay prior to any other available coverage.
I. CARRIERwill agree that CARRIER, CARRIER’S insurer(s), and anyone claiming by, through or under CARRIERshall have no claim, right of action, or right of subrogation against Broker, its affiliates, or its Customer based on any loss or liability insured under the insurance stipulated herein. CARRIERrepresents and warrants that it will continuously fulfill the requirements of this Section throughout the duration of this Agreement. Broker shall be notified in writing by CARRIER’s insurance company at least thirty (30) days prior to the cancellation, change or non-renewal of the submitted insurance policies.
VII. INDEMNITY AND BROKER INSURANCE
A. By BROKER to Customer
Except to the extent of Customer’s own negligence and/or willful misconduct, BROKER shall at all times indemnify, defend and hold harmless Customer, its agents and employees, from and against all settlements, losses, claims, damages, costs (including reasonable attorney’s fees), relating to or arising from the negligence of including, but without limitation, claims for bodily injury, death and damage to property asserted against Customer: (1) by any agent or employee of BROKER; (2) by any person other than Customer’s agents or contractors arising out of services performed under this Agreement; (3) by any Carriers for undercharge claims; or, (4) from the utilization of any transportation software supplied by any entity utilized by BROKER in the performance of such Services.
B. By Customer to BROKER
Except to the extent of BROKER’s negligence and/or willful misconduct, Customer shall at all times indemnify, defend and hold harmless BROKER, its agents and employees against and from settlements, losses, damages, claims, costs, including reasonable attorney’s fees, relating to or in any way arising from the negligence and/or willful misconduct of Customer, including, without limitation, claims for bodily injury, death and damage to property, breach of contract, or Customer’s agents, contractors and employees asserted against BROKER.
C. Insurance by BROKER
BROKER shall comply with all insurance and bonding requirements imposed upon it by law, including its obligation to maintain a surety bond to benefit the Customer.
VIII. LIABILITY FOR DAMAGES FOR LOSS OF COMMODITIES AND/OR CARGO AND LIMITATION OF LIABILITY
A. Commodity Loss, Damage or Shortage.
1. Customeracknowledges and agrees that the Carrier is only required to maintain insurance for liability for cargo loss and damage of $100,000 per trailer or conveyance but this will not limit the Carrier’s liability for the full value of a load. At the time of communicating the shipment via Order to BROKER, but in no event later than twenty-four (24) hours prior to scheduled pickup, Customer may request that BROKERarrange to transport a shipment with a higher valuation that $100,000.00. If BROKER agrees to arrange such transportation and issues a Broker To Shipper Load Confirmation Sheet, BROKER will arrange the transportation with a Carrier and Customer understands that the rate may change due to the higher valuation or that a Carrier may opt to take the risk of the higher value even though it only has $100,000.00 in cargo loss coverage. Absent an express request by Customer for supplemental insurance to be obtained by the Carrier, Customerassumes the risk of any lack of coverage and even it has declared an increased value on the face of the bill of lading presented to or by the Carrier at pick-up.
2. In the event of a cargo loss, damage, delay or shortage claim, BROKERagrees to facilitate filing of cargo claims with the Carrier as long as Customercomplies with the obligations set forth in this section. Customer agrees to notify BROKERpromptly after becoming aware of any such claim by phone and to subsequently submit to BROKER a written claim, fully supported by all relevant documentation, including but not limited to the signed delivery receipt, listing the nature and cause of the claim for cargo damage. Thereafter, Customer shall comply, at Customer’s cost and expense, with BROKER’s reasonable requests intended to resolve such claim.
3. Customermust submit a written claim to BROKERwithin eight (8) months of delivery, or within eight (8) months of the date delivery should have occurred if no delivery is made, or BROKER shall have no obligation to assist in the facilitation of such claims.
4. It is understood and agreed that BROKER is not a motor carrier and as such, BROKER shall have no liability for cargo loss, damage, or shortage except to the extent such claims are caused by BROKER’s negligent acts or omissions. With respect to the standard for BROKER negligence with respect to Carrier’s insurance, the failure of the Carrier to possess insurance required by law will not be deemed a negligent act or omission on the part of BROKER.
5. Customeracknowledges that where less-than-truckload shipments are tendered, the published service conditions, accessorial charges and released rates of the applicable Carrier shall apply.
B. Limitation of Liability
In the event of any liability of BROKERhereunder for loss of or damage to Commodities, the maximum liability of BROKER for such loss shall be the cost of the Servicesas set forth in any invoice to Customerrelated to arranging for the transportation of the Commodities by BROKER.
Notwithstanding any of the foregoing, BROKER shall not be liable in any event for any loss or damages or shortages due to any event of force majeure and/or otherwise to any act or negligence of Customer.
Furthermore, neither Party shall in any case be liable for any indirect, special, incidental, consequential, punitive and/or other extraordinary damages of any kind resulting from or in any way related to this Agreement, whether based on contract, tort or any other legal theory.
C. No Offset
Customer shall not offset any claim or demand of Commodity Loss or Damage from any charges due to BROKER hereunder except and unless BROKER has agreed in writing to such offset.
IX. DEFAULT BY CUSTOMER
If Customer fails to make any of the payments when and where required under this Agreement, or if Customer shall fail to perform any other covenant required under this Agreement to be performed by Customer, or if Customer shall fail to comply with any applicable local, state or federal laws or regulations, and such non-compliance has a material adverse effect on Customer’s performance under this Agreement, BROKER may declare Customer to be in default. Upon any declaration of default as provided herein, BROKER may thereupon terminate this Agreement by sending written notice of termination to Customer, effective thirty (30) days after such notification. Any election by BROKER not to so terminate this Agreement does not otherwise waive such breach, and BROKER may pursue any other remedy available to it even if this Agreement remains in full force and effect.
It is agreed and understood between the parties hereto, that BROKER is free to provide similar Services to customers other than Customerpursuant to any separate agreement BROKERmay have, written or oral, with such account.
XI. CONFIDENTIALITY OF INFORMATION
All information with respect to Customeror BROKER’s costs, procedures, and other details or Customer’s or BROKER ‘s business obtained by BROKER or Customer, is and for all purposes shall be confidential and may not be released to other parties without the other’s express written consent.
XII. APPLICABLE LAW AND FORUM SELECTION
This Agreement shall be governed by and construed in accordance with the applicable law of the United States or, depending upon applicable jurisdiction, the laws of the State of North Carolina. The parties hereby submit to jurisdiction and venue in the United States Federal District Court for the Western District of North Carolina, Charlotte Division or, alternatively, the Superior Court in and for the City and County of Charlotte, North Carolina.
XIII. INVALIDITY OF PROVISIONS
Should any part of this Agreement for any reason be declared by any court of competent jurisdiction to be invalid, such decision shall not effect the validity of any remaining portion, which remaining portion shall continue in full force and effect as if this Agreement had been executed with the invalid portion hereof eliminated, it being the intention of the parties that they would have executed the remaining portion of this Agreement without including any such part, parts or portions which may for any reason be hereafter declared invalid.
This Agreement shall apply to and bind the successors and assigns of the parties, provided, however, that no such assignment of interests or obligations under this Agreement or arising from its breach, including but not limited to the assignment or any moneys due and payable, shall be effective without the prior written consent of the other party. The exception to the requirement of a written assignment of interests or obligations under this Agreement is when BROKER utilizes a Co-Broker to assist in moving the tendered load. The Customer herein agrees that use of a Co-Broker is permissible, without the need for written authorization, if it facilitates service pursuant to this Agreement. Nothing herein shall restrict or prohibit the assignment, pledge or creation of a security interest by BROKER or a Co-Broker in any of the receivables due for services provided to Customer hereunder to any of BROKER’s financial institutions, lenders or creditors
XV. WAIVER AND DISCHARGE
This Agreement may not be released, discharged, abandoned, changed, or modified in any manner except by an instrument in writing signed on behalf of each of the parties hereto by their duly authorized representatives. The failure of any party hereto to enforce at any time any of the provisions of this Agreement shall in on way be construed to be a waiver of any such provision, or in any way to affect the validity of this Agreement or any part thereof or the right of any party thereafter to enforce each and every such provision. No waiver of any breach of this Agreement shall be held to be a waiver of any other or subsequent breach. In no event shall any party be liable for consequential, indirect special or incidental damages, whether based on contract, tort, or any other legal theory.
XVI. EXECUTION IN COUNTERPARTS AND FACSIMILE SIGNATURES
This Agreement may be executed in on or more counterparts, all of which shall be considered one and the same agreement, and shall become a binding agreement when one or more counterparts have been signed by each party and delivered to the other parties. A signature to this Agreement delivered by telecopy or other artificial means shall be deemed valid if a manually signed copy of such signature is delivered within three (3) business days after such telecopy or other signature is delivered.
XVII. TITLES AND HEADINGS
Titles and headings to sections herein are inserted for the convenience of reference only and are not intended to be a part of or to affect the meaning or interpretation of this Agreement.
XVIII. FORCE MAJEURE
If the performance of this Agreement is interfered with by reason of any circumstance beyond the reasonable control of the party affected, including without limitation, fire, act of God or labor unrest, then the party affected shall be excused from such performance on a day-to-day basis to the extent of such interference (and the other party shall likewise be excused from performance on a day-for-day basis to the extent such party’s obligation relates to the performance so interfered with); provided that the party so affected shall use reasonable efforts to remove such causes of nonperformance; and provided further that, if any such interference continues for more than thirty (30) days, each Party shall have the right, without charge, to cancel any Order or portion thereof affected by such interference.
BAHR TRANSPORTATION, LLC D/B/A CONVENIENT AUTOMOTIVE TRANSPORT:
11122 Blue Heron Drive,
Charlotte, NC 28226