PARTIES
1 .Carrier is a motor carrier authorized to operate in interprovincial, interstate and/or intrastate Transportation as describe and defined by Carrier’s Authority(s). Certificates(s), Permit(s), Registration(s) and safely, properly and lawfully transport freight by motor vehicle for hire.
2.“LM”, is a registered transportation broker and logistic company that controls the transportation of freight under contractual arrangements with various consignors and consignee desires to engage the service of Carrier for the transportation of freight as hereinafter set forth, Broker agrees to offer for shipment and Carrier agrees to transport in its own equipment at least 10,000 pounds annually, in one or more shipments, subject to the availability of the suitable equipment. Each shipment rendered to Carrier pursuant to this agreement shall be to Carrier as a motor contract carrier.
1. TRANSPORTE Y SERVICIOS RELACIONADOS
TRANSPORTATION COMMITMENT
Broker agrees to tender to Carrier and Carrier agrees to transport freight between the points and places and at the rates and charges set forth herein. An individual “Transportation Schedule” executed as provided in this shall evidence transportation commitment Agreement. Each transportation Schedule shall be considered a separate and enforceable contract incorporating as the parties shall agree upon. Carrier must accept the terms of the Transportation Schedule by faxing a signed copy to the broker prior to loading. In the event of a conflict between the language of this Agreement and any Transportation Schedule. The language of the Transportation Schedule will prevail.
PERFORMANCE OF SERVICE
Carrier agrees to safety perform the transportation and related services set forth in this Agreement and each Transportation Schedule without delay caused by anything in Carrier’s control, and Carrier shall immediately communicate all occurrences, which would be probable or certain to cause delay, to Broker. Carrier warrants that under no circumstances will they broker, interline, assign, or sub-lease shipments moved under this agreement to another party and agrees that all shipments shall be transported in equipment operated by it under its authority, dominion and control. Should Carrier employ a subcontractor or other person for the performance of all or any portion of the services required hereunder to be preformed by Carrier, with or without the express written consent of Broker, and whether or not such subcontractor is designated an owner-operator, connecting carrier, and agent, an independent contractor or otherwise, Carrier shall be and remain liable to Broker pursuant to the terms, conditions and provisions of the Agreement including, without limitation, liability for loss, damage or delay of any shipment in accordance with the provision of this Agreement whether such loss, damage or delay occurred while such shipment was in the possession of Carrier or such subcontractor or other person. Carriers shall pay any transportation charges of any subcontractor or other person and will indemnify and shall defend Broker from and against any claims made by any such subcontractor or other person in connection with this provision of such service. It is Carriers responsibility to determined that the goods being shipped are in apparent good order and condition, to the extent that such is ascertainable through a visual examination of the exterior of the goods shipped, before loading and in the event that they are not. Carrier will contact Broker for further instructions. Carrier is responsible to maintain a continuous scal record and have the seal verified at delivery such notation shall be noted onthe bills of landing. Carrier is responsible to verify the count and condition at the delivery and to notify Broker of any discrepancies in the count and/or condition promptly. Carrier’s responsibility for verifying counts at loading and unloading under this paragraph shall remain even at customer facilities that provide loading and unloading (lumper) services. Carrier shall be solely responsible for the cargo shipped from the time shipper release it to Carrier until it is delivered and received by Consignee. Carrier shall be liable for any loss, damage, delay, claim or theft of the cargo, Carrier also assumes the liability of a motor carrier as provider in Title 49 of the United States Code and the US Code of Federal Regulation Carrier agrees to comply with specific instruction from Shipper or Consignee by way of Broker, and shall provide, when requested, protective services, multiple stops, direct dispatch, drop shipments, inside deliveries, spotting trailers, and expedited shipments. Carrier, at its sole cost and expense, shall employ for its services hereunder only competent and legally licensed personnel. Carrier shall not cause or permit any shipment rendered there under to be transported by any other motor carrier or in substituted services by railroad or other modes of transportation without the prior written consent of Broker.
NON-EXCLUSUVE DEALING
This Agreement does not grant Carrier an exclusive right to perform the transportation and related services for broker or its Customer, Broker does not guarantee any specific amount of shipment, tonnage, or revenue to Carrier.
BACK SOLICITATION
Carrier will not back solicit directly or indirectly, the freight between the origins and destinations of our Customer with respect to traffic first tendered to Carrier by Broker for a period of one year following termination of this agreement. As liquidated damaged, Carrier agrees to pay Broker a 10% commission for shipments handled in violation of this covenant for a period of one year following cancellation of this agreement.
2.TÉRMINO
The term of this Agreement shall begin upon execution, shall continue thereafter for a term of one (1) year, and shall thereafter automatically be extended for additional, consecutive one (1) year term until terminated upon sixty (60) days prior written notice. Broker may immediately terminate a Transportation Schedule if Carrier fails to perform its obligation under that Transportation Schedule in the absence of a major force condition and Carrier is so notified of such failure to perform and fails to cure such failure promptly.
3. CUMPLIMIENTO DE LAS LEYES Y REGLAMENTOS APLICABLES
AUTHORITY
Carrier, at its own cost, agrees to comply with all applicable provision of provincial, federal, state and/or local law or ordinances, all applicable lawful orders, rules and regulation issued there under and any provision, representation or agreement, or contractual clause required thereby to be included or incorporated by reference or by operation of law in this Agreement and each Transportation Schedule.
SAFE TRASPORTATION
Carrier agrees not to accept a shipment from Broker or Customer if the Shipmentwould require Carrier or any of its agents, employees or subcontractors to exceed or violate any speed or safety laws or related regulation.
4. RELACIÓN
The relationship of Carrier to Broker shall, at all times, be that of an independent contractor, except that Broker shall be the agent for Carrier for the collection andpayment of charges to Carrier. Carrier agrees that it will look only to Broker for payment if the bulled party has paid Broker. All provisions in this agreement are separated and divisible and in the event that any provision or clause is deemed unenforceable, the remainder of the agreement shall remain in full force and effect.
INDEPENDENT CONTRACTOR
Carrier understands and agrees that Carrier is an independent contractor of broker and that Carrier has exclusive control and direction of the work Carrier performs pursuant to this Agreement and each Transportation Schedule. Carrier agrees to assume full responsibility for the payment of all applicable local. State,federal, and interprovincial payroll taxes, and contributions or taxes for unemployment insurance, workers’ compensation insurance. Pensions, and othersocial security or related protection with respect to the person engage in the performance of such transportation and related services for Carrier and Carrier shall indemnify, defend and hold Broker and its Customer harmless there from. Carrier shall provide Broker with Carrier’s Federal Tax ID number and attach a copy of Carrier’s IRS Form W-9 to this Agreement.
DRIVERS
Carrier Agrees to provide properly qualified, trained and licensed drivers and other personnel to perform the transportation and related services under this Agreement and each Transportation Schedule in a safe, efficient and economical manner. Carrier personnel (whether agent, employees or independent contractors of Carrier) are expected to conduct themselves in a professional manner at all times, and shall ascertain and comply with all of Customer’s plant rules and regulations while on Customer’s premises. Any Carrier Personnel who does not comply with all of Customer’s plant rules and regulation may be directed by Customer or Broker to immediately leave the Customer’s premises atthe exclusive risk and expense of Carrier.
EQUIPMENT
Carrier agrees to provide, operate and maintain in a good working condition, motor vehicles and all allied equipment necessary to perform the Transportation Schedule in a safe, efficient and economical manner. All trailers furnished by Carrier shall meet the specification described and identified in the applicable Transportation Schedule and shall be clean, dry and free of nay defects or contaminating odor, and shall not have been used by carrier or transport solid waste or other noxious products, and shall in all other respects be suitable and legal for the transportation of Customer’s commodities tendered to Carrier. Carrier, at its sole cost expense, shall furnish all equipment required for its services hereunder and shall maintain all equipment in good repair and condition. Carrier acknowledge and agrees that it will meet the specific needs of the Broker’s customers by providing the right sized trailers, at the right time, to the right pick up location and transported to the right destination at the right time.
SAFETY RATING
Carrier must maintain a “satisfactory” safety rating with the U.S Department of Transportation, and attached proof of such rating to this. Carrier agrees to notify Broker in the event of any change in their safety rating. Carrier will be responsible to comply with all applicable D.O.T regulation as well as all other federal and state regulations pertaining to the operations of a motor carrier.
BILLS OF LADING
Each shipment will be evidence by bill of lading issued by the shipper or by Carrier. Such bill of lading or receipts are however, for the sole purpose of evidencing receipt for the goods and will not constitute and agreement between Carrier and Broker. Any reference in such bills of lading to the shipment being subject to rates, rules, or any other provisions in Carriers tariff, classification, or other pricing documents is of no purposes and shall have no application for the traffic moving under this agreement, Any term and conditions of such bills of lading or receipts which are in conflict with any of the terms of this Agreement, are inapplicable and this Agreement will prevail, Carrier shall issue a Bill of Lading in its own name and will bill all charge for the transportation services directly to Broker and , together with the bill, shall provide Broker with a copy of the signed Bill of Lading and Deliver Receipt.
5 SEGURO
Carrier at Carrier’s expenses shall maintain the following minimum insurance requirements during the term of this Agreement:(a)Comprehensive general liability insurance, including completed products and operations contractual liability coverage for all liability assumed by Carrier under this Agreement and each Transportation Schedule, with minimum limits of liability of not less than one million dollars ($1,000,000) per occurrence combined single limit for personal injury and property damage.
(b)Automobile liability (including owned, non-owned and hired vehicle) with minimum limits of not less than one million dollars ($1,000,000) per occurrence combined single limit for personal injury and property damage.
(c)Broad form Cargo liability insurance, with minimum limits of not less than one hundred thousand dollars ($100,000) per shipment combined single limit for all liability assumed by Carrier in Section 7 of this Agreement. The carrier must provide a copy of all exclusions from the policy
(d)Workers Compensation insurance in an amount not less than the statutory limits for the state(s) or province(s) in which transportation and related services are to be performed, including employer’s liability insurance in an amount not less than five hundred thousand dollars ($500,000). If Carrier is self-insured, a certificate of the state in which the transportation and related services are to be performed must be furnished by such state agency directly to Broker. (e) Any insurance coverage’s required by any government body for the types of transportation and related services specified in a Transportation Schedule. All insurance required and provided by Carrier shall be primary. Carrier agrees and understands that the types of coverage’s and coverage minimums in no way limits or waives the Carrier’s liability hereunder.
QUALITY INSURERS
All insurance required by this Agreement or a Transportation Schedule must be written by an insurance company having a Best’s rating of A B or better and must be authorized to do business under the laws of the state(s) or province(s) in which Carrier provides the transportation and related services under all of the Transportation Schedules. Carrier’s insurance shall be primary and respond and pay prior to any other available coverage. Carrier agrees that Carrier, Carrier’s insurer(s), and anyone claiming by, through or under Carrier shall have no claim, right of action, or right of subrogation against Broker or its Customer based on any loss or liability insured under the foregoing insurance. Carrier shall, prior to providing transportation and related services pursuant to this Agreement, name Broker as additional insured on each of the foregoing insurance policies and attach a copy thereof to this Agreement in addition; a copy of the Carrier’s MCS 90 shall be attached to this Agreement.
NOTICE OF CHANGE REQUIRED
Carrier agrees to have its insurance company provide Broker with written notice at least thirty (30) days prior to the cancellation, change or non-renewal of Carrier’s insurance Coverage required by this Agreement. Carrier represents and warrants that it will continuously fulfill the Requirements of this Section throughout the duration of this Agreement, in compliance with the insurance Requirements identified herein.
6. TARIFAS Y CARGOS DEL TRANSPORTISTA
RATES AND CHARGES
Carrier rates and charges, including detention and/or accessorial Charges are exclusively set forth in either the rate schedule attached to this Agreement, or Transportation Schedule executed pursuant to this Agreement. Any Carrier rates and charges set forth in an attached rate Schedule shall remain fixed throughout each one (1) year term of this Agreement except as otherwise provided herein. Any change in rates or charges agreed to by Carrier and LM must be in writing, signed by Carrier and Broker, and a copy attached to this Agreement.
PAYMENT
Carrier shall accurately bill Broker for transportation and related services performed pursuant to Transportation Schedules. Broker shall pay Carrier’s invoice within thirty (30) days after receipt by Broker, provided that such charges are correct and that Carrier has provided LM with all necessary billing documents including but not limited to signed Transportation Schedules, delivery receipts and bills of lading. Neither LM nor its customers will be responsible for any late payment charges or interest or late payment penalties of any kind. Any Carrier document or other writing included tariffs, rules, rates, classification, practice, or schedules, which attempts to impose such penalties, or charges for shipments made under this Agreement shall be null and void. Carrier will provide bills of lading, delivery receipts (proof of delivery) and other appropriate documentation without charge to LM.
7. DAÑO O DESTRUCCIÓN POR PÉRDIDA DE CARGA
CARRIER’S CARGO LIABILITY
Carrier cargo liability shall commence upon Carrier’s acceptance of goods and shall end when the commodities are received and signed for at destination without exception. Claims will be filed and resolved in accordance with the provisions of 49 C.F.R, Part 370. Carrier assumes full liability as a common carrier for loss, damage to or destruction of any and all of Customer’s goods or property while under Carrier’s care, custody or control. All cargo claims liability standards and burdens of proof will be governed by the common law and the provisions of 49 U.S.C. Part 14706 (the Carmack Amendment). Carrier agrees to promptly report any exceptions (over, short, damaged, or refused) to LM Claims Department. Should Carries fail to notify Broker regarding such exceptions, LM assumes, and Carrier agrees to be responsible for any and all claims and cost incurred in resolving said exceptions. Carrier shall acknowledge all claims within thirty (30) days from receipt and indicate what, if any additional documentary evidence is required to resolve the claim. LM agrees to assist Carrier in resolving, or reducing Carrier’s claim whenever possible. Carrier shall pay, decline, or settle all documented claims within ninety (90) days. All claim that are denied in full or in part, must meet the burden of proff as provided under 49 U.S.C. & 14706, with clear and convincing evidence. Carrier shall either pay LM directly or allow LM to deduct from any amount LM owes Carrier the amount of Customer’s full actual loss or the amount of determined Carrier liablity. All claims that are not resolved within ninety (90) days may be subject to binding arbitration under modified procedures established by the Transportation Lawyers Association at the election of LM or its customers. Carrier assumes full liability as a common carrier for loss, damage, collection, lawyer and any nature of contracted service charges hired for purposes of solving any discrepancies between the parties.
SALVAGE CLAIMS
Broker recognizes the Carrier’s right to salvage, and Carrier recognizes the Customer’s right to control the disposition of its goods. Carrier waives any and all right of salvage or resale of any Customer’s damages goods without LM’s prior written consent. Carrier shall not, any under circumstance allow Customer’s goods to be sold or made available for sale or otherwise disposed of in any salvage markets, employee store, or any other secondary outlets and shall, at Broker’s reasonable request and direction, promptly return or dispose, at Carrier’s initial cost, any and all of Customer’s damaged and overage goods shipped by Carrier under a Transportation Schedule. In the event that damaged good are returned to Customer and salvaged by Customer, Carrier shall receive a credit for the actual salvage value of such goods. Return transportation charges will be borne by the party responsible for damage to the cargo and will be apportioned under the process set forth in paragraphs.
8. INDEMNIZACIÓN
Except to the extent of LM’s sole negligence and /or willful misconduct, and except as set forth in Paragraph 7, Carrier agrees to indemnify, defend and hold LM and its Customer (including their officers, directors, employees, subcontractors and agents) harmless from and against any and all liabilities, damage, fines, penalties, costs, claims, demands, and expenses of whatever type of nature, to any person arising out of related to, directly or indirectly: (i) any action or omission by Carrier its agents, employees or subcontractors; (ii) any claims or actions by Carrier agents, employees or subcontractors; (iii) the failure of Carrier, its agents, employees or subcontractors to comply with this Agreement, Transportation Schedules, or any applicable United States or Canadian federal, provincial, state or local law, statute, regulation, rule, ordinance, or government directive which may directly or indirectly regulate or affect the obligations of Carrier under this Agreement or any Transportation Schedule. The obligations of Carrier under this Section shall survive the termination of this Agreement and any Transportation Schedule Carrier shall be responsible for and agrees t hold Broker harmless from and indemnify Broker for any and all personal injury, property damage, loss, claim, injury, obligation or liability arising from Carrier’s actions, behavior or transportation pursuant to this Agreement.
9. VARIOS
CONFIDENTIALITY
In carrying out this agreement Carrier will gain access to information concerning LM and its Customer’s, which information Carrier shall only use to provide the transportation and related services required under this Agreement and the Transportation Schedules. Broker and Carrier shall each limit disclosure of information concerning this Agreement, (including the Transportation Schedules, performance thereof, and Carrier’s rates and charges) to only those Broker and Carrier agents, employees, and subcontractors directly involved in its execution and performance, or to such other parties who have a specific need to know of this Agreement and the Transportation Schedules. Carrier agrees that Broker’s compensation hereunder for its services are confidential and need not be disclosed to Carrier. Carrier further agrees that it will not reveal to anyone the terms of this agreement, the pricing of transportation services, or any other details of the business conducted between Carrier and Broker.
SUCCESSORS AND ASSIGNS
This Agreement and each Transportation Schedule shall be binding upon Carrier and Carrier’s representatives, successors and assigns. Carrier shall not assign this Agreement or a Transportation Schedule without prior written consent of LM. Any assignment of this Agreement or any Transportation Schedule, in whole or in part, by Carrier without the prior written consent of Broker shall be void and of no effect.
MODIFICATION
No waiver, alteration or modification of any of the provision of this Agreement, or any of the Appendices or Attachments referred to herein, or any Transportation Schedule, shall be binding upon either party, unless in writing signed by the duty authorized representative of the party against whom such modification in sought to be enforced, Any printed provision on the reverse side of Carrier’s forms shall be deemed deleted. The terms and conditions of the Standard Truckload Bill of Lading shall apply and nonconforming bills will be considered a receipt only, In the event ofa conflict between the language of this Agreement or Transportation Schedule, and a carrier document, the language of this Agreement and the involved Transportation Schedule will prevail. This Agreement cannot be changed, modified, limited or supplemented by reference to any Carrier rates, rules, classifications, practice, schedule or tariff.
SAVING CLAUSE
If any provision of this Agreement or any Transportation Schedule is held to be invalid the remainder of the Agreement or the Transportation Schedule shall remain in full force and effect with the offensive term or condition being stricken to the extent necessary to comply with any conflicting law.
MUTUAL COOPERATION AND RESOLUTION OF DISPUTES
Both parties understand and agree that they must cooperate to ensure the best, most efficient and economical transportation and related services. If any dispute arises in connection with this Agreement or any Transportation Schedule, the dispute shall, after the representatives of LM and Carrier primarily responsible for the negotiation and performance of this Agreement or any applicable TransportationSchedule are unable, after reasonable diligent effort, to resolve the dispute, be referred to and Executive of LM and of Carrier to resolve the dispute in question. If the Executive Panel is unable to resolve any dispute after reasonable diligent effort, the matter may by Mutual agreement, be referred binding arbitration, or either party may resort to litigation. In the event the matter is referred to arbitration or is litigated, the non-prevailing party shall bear all related costs, including the prevailing party’s reasonable attorney fees.
WAIVER OF LIENS
Carrier shall have no lien on any shipment hereunder or on any goods or other property of MLS or its customers and specifically waives and all liens granted by operation of law or possession. Unless otherwise agreed by Broker, Carrier agrees to make no claim against any consignor or consignee of any shipment hereunder and agrees to look solely to Broker for payment of all charges properly due Carrier hereunder.
ENTIRE AGREEMENT
This Agreement including the Appendices attached to this constitutes the entire agreement between the parties with respect to the subject matter of this Agreement. The Provision of this Agreement shall supersede all contemporaneous oral agreements and all prior oral and written quotations, communications, agreements and understandings between Carrier and Broker with respect to the subject matter of this Agreement. Carrier agrees to support and protect Broker’s efforts in performance of this agreement by refraining from any direct contact or solicitation of Broker’s customers. During the term if this agreement and for the period of two (2) years after termination of this agreement, Carrier, his officers and directors shall not directly or indirectly solicit or do business of a transportation nature with any of Broker’s customers who are serviced by Carrier. If Carrier breaches this provision, Carrier shall be liable to Broker for all of Broker’s lost income, past present and future. This agreement represent the entire agreement between the parties. This contract shall super cede all prior agreements, written and oral, including the Bill of Lading. Carrier agrees to pay all Broker’s costs of enforcing this agreement including its attorney’s fees. This agreement shall be effective continuously and remain in effect until either party terminates it with no less than thirty (30) days written notice to the other party. Carrier may not assign this agreement to another party without the express written consent of Broker. The parties acknowledge and agree that it is standard in the industry to transmit this agreement between parties by facsimile or telefax, herein “fax” for completion and signatures and agree that all fax copies of this agreement with signatures shall serve as an original of this agreement and shall have the same full force and effect as an original document.
NOTICES
All notices required by or related to this Agreement shall be in writing and sent to the parties at the addresses set forth below by any means that will require an acknowledgement of receipt by the receiving party. Proof of sending any notice shall be responsible of the sender. IN WITNESS WHEROF, the undersigned individuals have executed this Agreement as of the dates indicated and by doing so represents and warrant that they have been or are specifically authorized to do so on behalf of the corporations or oganizations they represents.
