YOURFLEET LLC: BROKER/SHIPPER TRANSPORTATION AGREEMENT
RECITALS
WHEREAS BROKER is licensed as a Property Broker by the Federal Motor Carrier Safety Administration (FMCSA) in Docket Number MC-1487550, and as a licensed broker, arranges for freight transportation. A copy of BROKER’s authority is attached as Appendix A and a copy of BROKER’s Surety Bond or trust fund agreement is attached as Appendix B; and
WHEREAS SHIPPER, to satisfy some of its transportation needs, desires to utilize the services of BROKER to arrange for transportation of SHIPPER’s freight.
NOW THEREFORE, intending to be legally bound, BROKER and SHIPPER agree as follows:
AGREEMENT
TERM. Subject to paragraph 12, the term of this Agreement shall be one (1) year, commencing on the date first mentioned above, and shall automatically renew for successive one year periods; provided, however, that either Party may terminate this Agreement on 30-day written notice to the other Party, with or without cause, or as otherwise provided in this Agreement.
SERVICE. BROKER agrees to arrange for transportation of SHIPPER’s freight pursuant to the terms and conditions of this Agreement and in compliance in all material respects with all federal, state, and local laws and regulations relating to the brokerage of the freight covered by this Agreement. BROKER’s responsibility under this Agreement shall be limited to arranging for, but not actually performing, transportation of SHIPPER’s freight. The PARTIES may, upon written mutual agreement, include additional service terms to be attached as Appendix C.
VOLUME.
SHIPPER agrees to tender a minimum of three (3) shipments per year to BROKER, and BROKER agrees to arrange for the transportation of said shipments, as well as any other shipments offered by SHIPPER. Shipper is not restricted from tendering freight to other brokers, or directly to motor carriers. BROKER is not restricted from arranging transportation for other parties.
SHIPPER shall be responsible to BROKER for timely and accurate delivery instructions and description of the cargo, including any special handling or security requirements, for any shipment.
FREIGHT CARRIAGE. BROKER warrants that it has entered into or will enter into a bilateral written contract of carriage with each carrier it utilizes in the performance of this Agreement. BROKER further warrants that those contracts comply with all applicable federal and state laws and regulations and shall include the following provisions:
o Carrier is in, and shall maintain compliance during the term of this Agreement, with all applicable federal, state and local laws relating to the provision of its services.
o Carrier shall agree to defend, indemnify and hold BROKER and SHIPPER harmless from all damages, claims or losses arising out of its performance of the Contract, including cargo loss and damage, theft, delay, damage to property, and personal injury or death, to the fullest extent permissible under applicable federal and state law.
o Carrier shall agree that its liability for cargo loss or damage shall be no less than that of a Common Carrier as provided for in 49 USC 14706 (the Carmack Amendment). Exclusions in Carrier’s insurance coverage shall not exonerate Carrier from this liability.
o Carrier shall agree to maintain at all times during the term of the contract, insurance coverage with limits not less than the following:
General Liability $1,000,000.00
Auto Liability – $1,000,000.00
Cargo Liability – $100,000.00
Worker’s Compensation – as required by law.
BROKER shall verify that each carrier it utilizes in the performance of this Agreement has proof of insurance coverage as defined above. Carrier shall agree that the provisions contained in 49 CFR 370.1 et seq. shall govern the processing of claims for loss, damage, injury or delay to property and the processing of salvage.
The Parties agree that BROKER is the sole party responsible for payment of Carrier’s charges. BROKER agrees to pay Carrier’s undisputed invoice within 30 days of receipt of the bill of lading or proof of delivery, provided Carrier is not in default under the terms of their Agreement.
Carrier shall agree that, at no time during the term of its contract with BROKER shall it have an “Unsatisfactory” safety rating as determined by the Federal Motor Carrier Safety Administration (FMCSA). If Carrier receives an “Unsatisfactory” safety rating, it shall immediately notify BROKER. BROKER shall not knowingly utilize any carrier with an “Unsatisfactory” safety rating in the performance of this Agreement.
Carrier shall agree that the terms and conditions of its contract with BROKER shall apply on all shipments it handles for BROKER. Any terms in a tariff that are referenced in the carrier contract which are inconsistent with the contract shall be subordinate to the terms of the contract.
Carrier shall expressly waive all rights and remedies under Title 49 U.S.C., Subtitle IV, Part B to the extent they conflict with the contract.
BROKER further warrants it will require proof of insurance and operating authority from each Carrier. For shipments outside of the United States the terms in Foreign Shipments Appendix D of this Agreement shall apply.
RECEIPTS AND BILLS OF LADING. If requested by SHIPPER, BROKER agrees to provide SHIPPER with proof of acceptance and delivery of such loads in the form of a signed Bill of Lading or Proof of Delivery, as specified by SHIPPER. SHIPPER’s insertion of BROKER’s name on the bill of lading shall be for SHIPPER convenience only and shall not change BROKER’s status as a property broker. The terms and conditions of any freight documentation used by BROKER or carrier selected by BROKER may not supplement, alter, or modify the terms of this Agreement.
PAYMENTS. BROKER shall invoice SHIPPER for its services in accordance with the rates, charges and provisions set forth in Appendix D, attached, and any written supplements or revisions that are mutually agreed to between the PARTIES. If rates are negotiated between the PARTIES and not otherwise confirmed in writing, such rates shall be considered “written,” and shall be binding, upon BROKER’s invoice to SHIPPER and SHIPPER’s payment to BROKER. SHIPPER agrees to pay BROKER’s invoice within 30 days of invoice date without deduction or setoff. BROKER shall apply payment to the amount due for the specified invoice, regardless whether there are earlier unpaid invoices. Payment of the freight charges to BROKER shall relieve SHIPPER, Consignee or other responsible party of any liability to the carrier for nonpayment of its freight charges; and BROKER hereby covenants and agrees to indemnify SHIPPER, Consignee or other responsible party against such liability.
CLAIMS.
Freight Claims: SHIPPER must file claims for cargo loss or damage with BROKER within one hundred eighty (180) days from the date of such loss, shortage or damage, which for purposes of the Agreement shall be the delivery date or, in the event of non-delivery, the scheduled delivery date. SHIPPER must file any civil action against BROKER in a Court of Law within two (2) years from the date the carrier or BROKER provides written notice to SHIPPER that the carrier has disallowed any part of the claim in the notice. Carriers utilized by BROKER shall agree in writing with BROKER to be liable for cargo loss or damage as outlined in paragraph 4.c above. The carriers’ cargo liability for any one shipment shall not exceed $100,000.00 unless BROKER is notified by SHIPPER of the increased value prior to shipment pickup and with reasonable advance notice to allow BROKER and/or the carrier to procure additional insurance coverage. It is understood and agreed that the BROKER is not a Carrier and that the BROKER shall not be held liable for loss, damage or delay in the transportation of SHIPPER’s property unless caused by BROKER’s negligent acts or omissions in the performance of this Agreement. BROKER shall assist SHIPPER in the filing and/or processing of claims with the Carrier. If payment of claim is made by BROKER to SHIPPER, SHIPPER automatically assigns its rights and interest in the claim to BROKER. In no event shall BROKER or BROKER’s Carrier be liable to SHIPPER for special, incidental, or consequential damages that relate to loss, damage or delay to a shipment, unless SHIPPER has informed BROKER in written or electronic form, prior to or when tendering a shipment or series of shipments to BROKER, of the potential nature, type and approximate amount of such damages, and BROKER specifically agrees in written or electronic form to accept responsibility for such damages.
All Other Claims: The PARTIES shall notify each other of all known material details within sixty (60) days of receiving notice of any claims other than cargo loss or damage claims, and shall update each other promptly thereafter as more information becomes available. Civil action, or arbitration, if any, shall be commenced within two (2) years from the date either Party provides written notice to the other Party of such a claim.
INSURANCE. BROKER agrees to procure and maintain at its own expense, at all times during the term of this Agreement, the following insurance coverage amounts:
o Comprehensive general liability insurance $1,000,000.00 covering bodily injury and property damage
o Contingent Cargo Insurance $100,000.00
o BROKER shall submit to SHIPPER a certificate of insurance as evidence of such coverage and which names SHIPPER as “Certificate Holder” AND “Additional Insured.”
SURETY BOND. BROKER shall maintain a surety bond or trust fund agreement as required by the Federal Motor Carrier Safety Administration in the amount of $75,000.00 and furnish SHIPPER with proof upon request.
HAZARDOUS MATERIALS. SHIPPER and BROKER shall comply with all applicable laws and regulations relating to the transportation of hazardous materials as defined in 49 CFR §172.800, §173 and § 397 et seq. to the extent that any shipments constitute hazardous materials. SHIPPER is obligated to inform BROKER immediately if any such shipments constitute hazardous materials. SHIPPER shall defend, indemnify and hold BROKER harmless from any penalties or liability of any kind, including reasonable attorney fees, arising out of SHIPPER’s failure to comply with applicable hazardous materials laws and regulations
HOMELAND SECURITY. As applicable to each, respectively, BROKER and SHIPPER shall comply with state and federal Homeland Security related laws and regulations.
DEFAULT. Both parties will discuss any perceived deficiency in performance and will promptly endeavor to resolve all disputes in good faith. However, if either Party materially fails to perform its duties under this Agreement, the party claiming default may terminate this Agreement on thirty (30) days written notice to the other Party. SHIPPER shall be responsible to pay BROKER for any services performed prior to the termination of this Agreement and for shipments not yet completed and/or not yet invoiced to SHIPPER.
INDEMNIFICATION. Subject to the insurance limits in Section 8, BROKER and SHIPPER shall defend, indemnify and hold each other harmless against any claims, actions or damages, including, but not limited to, cargo loss, damage, or delay, and payment of rates and/or accessorial charges to Carriers, arising out of their respective performances under this Agreement, provided, however, the indemnified party shall not offer settlement in any such claim without the agreement of the indemnifying party which agreement shall not be unreasonably withheld. If the indemnified party offers or agrees to a settlement for such a claim without the written agreement of the indemnifying party, the indemnifying party shall be relieved of its indemnification obligation. Neither party shall be liable to the other party for any claims, actions or damages due to the negligence of the other party. Although Section 8 only imposes insurance requirements upon BROKER, for purpose of this Section 13, those amounts also shall limit the scope of SHIPPER’s indemnification obligations. The obligation to defend shall include all costs of defense as they accrue.
ASSIGNMENT/MODIFICATIONS OF AGREEMENT. Neither party may assign or transfer this Agreement, in whole or in part, without the prior written consent of the other party. No amendment or modification of the terms of this Agreement shall be binding unless in writing and signed by the PARTIES.
SEVERABILITY/SURVIVABILITY. In the event that the operation of any portion of this Agreement results in a violation of any law, or any provision is determined by a court of competent jurisdiction to be invalid or unenforceable, the Parties agree that such portion or provision shall be severable and that the remaining provisions of the Agreement shall continue in full force and effect. The representations and obligations of the PARTIES shall survive the termination of this Agreement for any reason.
INDEPENDENT CONTRACTOR. It is understood between BROKER and SHIPPER, that BROKER is not an agent for the Carrier or SHIPPER and shall remain at all times an independent contractor. SHIPPER does not exercise or retain any control or supervision over BROKER, its operations, employees, or carriers.
NONWAIVER. Failure of either party to insist upon performance of any of the terms, conditions or provisions of this Agreement, or to exercise any right or privilege herein, or the waiver of any breach of any of the terms, conditions or provisions of this Agreement, shall not be construed as thereafter waiving any such terms, conditions, provisions, rights or privileges, but the same shall continue and remain in full force and effect as if no forbearance or waiver had occurred.
NOTICES. Unless the PARTIES notify each other in writing of a change of address, any and all notices required or permitted to be given under this Agreement shall be in writing (or fax with machine imprint on paper acknowledging successful transmission) and shall be addressed as follows:
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YourFleet, LLC |
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Paul D’Agostino |
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18201 Viscount Rd Houston, TX 77032 |
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281-443-7447 |
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FORCE MAJEURE. Neither Party shall be liable to the other for failure to perform any of its obligations under this Agreement during any time in which such performance is prevented by fire, flood, or other natural disaster, war, embargo, riot, civil disobedience, or the intervention of any government authority, or any other cause outside of the reasonable control of the SHIPPER or BROKER, provided that the Party so prevented uses its best efforts to perform under this Agreement and provided further, that such Party provide reasonable notice to the other Party of its inability to perform.
CHOICE OF LAW AND VENUE. All questions concerning the construction, interpretation, validity and enforceability of this Agreement, whether in a court of law or in arbitration, shall be governed by and construed and enforced in accordance with the laws of the State of Texas, without giving effect to any choice or conflict of law provision or rule that would cause the laws of any other jurisdiction to apply.
CONFIDENTIALITY. BROKER shall not utilize SHIPPER’s name or identity in any advertising or promotional communications without written confirmation of SHIPPER’s consent and the PARTIES shall not publish, use or disclose the contents or existence of this Agreement except as necessary to conduct their operations pursuant to this Agreement. BROKER will require its carriers and/or other brokers to comply with this confidentiality clause.
ENTIRE AGREEMENT: This Agreement, including all Appendices and Addenda, constitutes the entire agreement intended by and between the PARTIES and supersedes all prior agreements, representations, warranties, statements, promises, information, arrangements, and understandings, whether oral, written, expressed or implied, with respect to the subject matter hereof. 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.
YOURFLEET, LLC
CUSTOMER /SHIPPER TERMS AND CONDITIONS
These CUSTOMER SHIPPER TERMS AND CONDITIONS (these “Terms and Conditions”) and agreed upon pricing documents apply to all Services (defined below) provided by YourFleet, LLC {hereafter “Broker”) to Shipper. Performance of any work by Broker for Shipper shall constitute acceptance by Shipper of these Terms and Conditions. The parties expressly waive any or all rights and remedies under Part B, 49 USC §13101 et. seq. as provided for by 49 USC §14101(b) to the extent such rights and remedies are in conflict with this Agreement. Broker and Shipper are sometimes collectively referred to herein as the “Parties”.
SERVICES. Broker is a licensed property broker by the Federal Motor Carrier Safety Administration (“FMCSA”), and, as a licensed broker, arranges for freight transportation. In order to satisfy some of Shipper’s transportation needs, Shipper desires to utilize the services of Broker to arrange for the transportation of some of Shipper’s freight (the “Services”). Broker’s responsibility in performing the Services shall be limited to arranging for, but not actually performing, transportation of some of Shipper’s freight. The Parties may, upon written agreement duly executed by the Parties, include additional service terms.
Payment for Services
o Shipper shall pay Broker for the Services provided by Broker under these Terms and Conditions at the rates and charges as agreed between the parties. All payments by Shipper shall be remitted to Broker at the following address, or such other addressed specified by Broker to Shipper in writing:
YourFleet, LLC
18201 Viscount RD.
Houston, TX 77032
o Payment of invoices shall be made by Shipper within fifteen (15) days after delivery of each shipment. Interest at the rate of the lesser of: (i) one percent (1%) per month, or (ii) the highest rate allowed by law shall accrue on overdue payments from the date due up to and including the date of payment.
o All billing or invoice inquiries or disputes must be presented to Broker within one hundred and eighty (180) days after Shipper’s receipt of an invoice or delivery of Shipper’s load. All payment inquiries or disputes must be presented to the other party within one hundred and eighty (180) days of receipt of payment. Any inquiries or disputes not presented within the time periods set forth herein shall be deemed waived.
o Except as otherwise provided in these Terms and Conditions, each party must bring a civil action to recover damages or amounts claimed under these Terms and Conditions within two (2) years from the date of shipment. Any matters not filed within the above limitations period shall be deemed waived.
o It is expressly agreed, as a condition of Broker’s provision of services to Shipper, Broker shall have a lien on all of Shipper’s freight in Broker’s possession for the total amount owed to Broker for all freight charges, storage and charges for related services, including charges related to freight previously delivered upon the promise of Shipper to pay such charges.
SHIPPER’S OBLIGATIONS. Shipper shall be responsible to Broker for timely and accurate delivery instructions and description of the cargo, including any special handling or security requirements, for any shipment.
BROKER‘S OBLIGATIONS
· Broker warrants that it has entered into or will enter into a bilateral written contract of carriage with each carrier it utilizes in the performance of this Agreement (“Carriers”).
· Broker shall comply with all applicable provisions of the FMCSA, and all applicable state and local laws, rules and regulations to the extent they govern the Services provided by Broker hereunder.
· Broker shall promptly and efficiently retain and contract with motor carriers (“Carriers”) as necessary to meet Shipper’s transportation needs.
· Broker shall notify Shipper of any accidents, spills, theft, hijacking or other events which impair the safe and prompt delivery of Shipper’s goods in its control.
· Broker shall notify Shipper of any refused freight at Shipper and/or third party locations and request additional instructions regarding delivery or storage of the refused goods. Such notice by Broker shall be performed as soon as reasonably practical.
· At the request of Shipper, Broker agrees to provide copies of proof of acceptance and delivery of loads in the form of a signed bill of lading or delivery receipt. Shippers insertion of Broker’s name on a bill of lading or delivery receipt shall be for Shipper’s convenience only and shall not change Broker’s status as a property broker. The Parties agree that bills of lading and delivery receipts shall be used solely as receipts for shipment and to identify the kind and quantity of goods, place of pickup and delivery, shipper and consignee and other information as required by Shipper. References to classifications, tariffs, service guides or other publications and/or contractual terms and conditions on the face or reverse side of such documents shall be null and void.
· Broker shall take commercially reasonable steps to require its Carriers to maintain policies of insurance as follows: {I) cargo insurance with minimum limits of liability of $100,000.00 per occurrence; (ii) automobile liability insurance with minimum limits of liability of $1,000,000.00 combined single limit for bodily injury and property damage; (iii) comprehensive general liability with contractual liability insurance with minimum limits of liability of $1,000,000.00 per occurrence;(iv) worker’s compensation insurance with minimum limits as may be required by statute; and (v) any other insurance required by the Department of Transportation or any other federal, state or local regulatory agency.
LIABILITY
Broker Liability. Broker shall not be liable under any circumstances to Shipper for the loss or damage to Shipper’s goods. Liability, if any, for such loss or damage shall be borne solely by the Carriers. Broker’s liability to Shipper, if any, for breach of any representation, warranty or covenant under these Terms and Conditions shall be limited to the total compensation for services provided by Broker under these Terms and Conditions in connection with such services.
Claims Processing. Broker shall, without assuming any liability for loss or damage Claims, assist Shipper in its pursuit of Shipper Claims against liable Carriers.
Shipper Liability. Shipper shall be directly liable to Broker and its Carriers for costs and accessorial charges incurred by either as the result of an order being cancelled by Shipper or as required to perform pick-up or delivery of Shipper orders.
INDEMNITY. Shipper agrees to defend, indemnify and hold Broker harmless from and against any and all loss, damage fees (including attorneys’ fees) or injuries (including death) to the extent that such loss, damage, fees or injuries are caused or contributed to by the negligent or willful acts or omissions of Shipper, its employees, agents, contractors or subcontractors. Except for damage to Shipper’s goods, liability for which is set forth elsewhere in these Terms and Conditions, Broker agrees to defend, indemnify and hold Shipper harmless from and against any and all loss, damage, fees (including attorneys’ fees) or injuries (including death) to the extent that such loss, damage, fees or injuries are caused or contributed to by the negligent or willful acts or omissions of Broker, its employees, agents, contractors or subcontractors.
NONEXCLUSIVE TERMS AND CONDITIONS. It is understood and agreed between the parties hereto that Broker shall be free to accept freight for transportation from shippers other than Shipper and that Shipper shall be free to tender freight for transportation to brokers other than Broker.
INDEPENDENT CONTRACTOR. Broker shall perform the services hereunder as an independent contractor and shall have exclusive control and direction of all persons engaged in providing the Services. Broker assumes full responsibility for the payment of local, state and federal payroll taxes or contributions or taxes for unemployment insurance, workers’ compensation, old age pensions or other social security and related protection, and agrees to comply with all applicable rules and regulations pertaining thereto.
GOVERNING LAW. These Terms and Conditions, and all rights and obligations hereunder, including matters of construction, validity, and performance, shall be governed by the laws of the state of Texas without giving effect to the conflict of law provisions thereof. As a pre-condition of bringing any action, each party shall appoint a senior official to attempt in good faith to settle the dispute.
FORCE MAJEURE. Neither Shipper nor Broker shall be liable for default in the performance of discharge of any duty or obligation under these Terms and Conditions, or for loss, damage, or delay, when caused by the acts of God, civil or military authority, public enemy, fire, floods, odors, sprinkler leakage, wind, storm, moth ,by rats, mice or other vermin, labor disorders, strikes, work stoppages or other labor trouble, disturbance or interference of whatever cause or nature, whether primary, secondary or tertiary, etc., or accidents, riots, civil commotion, closing the public highways, governmental interference or regulations and other contingencies, similar or dissimilar to the foregoing, beyond the reasonable control of the affected party (a “Force Majeure Event”). A Force Majeure Event shall not delay a party’s obligation to timely pay any sum due hereunder.
SEVERABILITY AND WAIVER. If any phrase, clause, sentence, or other provision contained in these Terms and Conditions violates any applicable statute, ordinance, rule or law, such phrase, clause, sentence, or provision shall be ineffective to the extent of such violations without invalidating any other provision of these Terms and Conditions. The waiver by either party of any breach or default hereunder, or the failure of either party to enforce any of the terms and conditions herein, shall not affect, limit or waive the right of either party thereafter to enforce and compel strict compliance with these Terms and Conditions.
ENTIRE AGREEMENT. These Terms and Conditions represent the entire understanding of the parties with respect to the subject matter herein and may not be amended except in writing signed by both Shipper and Broker. No other tariff provisions shall apply to the Services provided by Broker to Shipper under these Terms and Conditions. Broker objects to any terms proposed in Shipper’s acknowledgment or other form of acceptance of Broker’s offer to perform services which add to, vary from, or conflict with these Terms and Conditions. These Terms and Conditions may be modified only by a written instrument executed by authorized representatives of both Broker and Shipper. If Broker’s offer to perform service has been issued in response to Shipper’s offer and if any of the Terms and Conditions herein add to, vary from or conflict with any terms of Shipper’s offer, then the acceptance by Shipper of Broker’s tender to perform services shall constitute an acceptance of Shipper’s offer subject solely to these Terms and Conditions, and any additional, different or conflicting terms in Shipper’s offer are rejected by Broker.
WAIVER OF CONSEQUENTIAL DAMAGES. BROKER AND BROKER’S CARRIER SHALL NOT IN ANY CIRCUMSTANCES, INCLUDING CARGO AND/OR PROPERTY CLAIMS, BE LIABLE FOR PUNITIVE OR EXEMPLARY DAMAGES OR CONSEQUENTIAL OR INDIRECT DAMAGES, INCLUDING WITHOUT LIMITATION, DAMAGES ARISING FROM LOSS OF PROFIT.