NOW, THEREFORE, IN CONSIDERATION OF THE PREMISES AND THE
MUTUAL AGREEMENTS HEREIN CONTAINED, THE PARTIES HERETO AGREE AS FOLLOWS:
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Offers for Shipment. -
Broker agrees to offer for
shipment to Carrier and Carrier agrees to transport in its own equipment
tendered shipments and such additional quantities of freight as Broker
may tender from time to time to Carrier, subject to the availability of
suitable equipment.
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Term. -
This Agreement shall come
into force as of the Effective Date and shall remain in effect until
terminated in the manner provided herein.
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Termination. -
This Agreement may be terminated
by either party upon thirty (30) days' written notice. However, if all
or any portion of Carrier's operating authority or rights shall be
revoked or suspended, or Carrier's insurance policy is cancelled,
reduced or otherwise invalidated, or Carrier receives an
"unsatisfactory" safety rating from any Regulatory Agencies,
Carrier shall promptly notify Broker, and Broker may then terminate this
Agreement immediately without notice and without further obligation.
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Compensation. -
Broker agrees to pay Carrier
for the transportation services to be rendered under this Agreement in
accordance with the rates set forth in Schedule "A" annexed
hereto, which shall form an integral part of this Agreement.
Modifications or additions to these rates may be agreed to in writing or
made verbally and confirmed in writing to meet specific shipping
schedules. Confirmation of verbally agreed to rates will be made by a
recap faxed or emailed by Broker to Carrier and by the Carrier's pick up
of the shipment. All modifications and additions to the rates made
either in writing or verbally and confirmed in writing shall be deemed
as appendices to and considered a part of this Agreement.
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Payment.
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5.1
Carrier will invoice all charges for transportation services rendered
directly and exclusively to Broker and will provide Broker with a the original signed bill(s) of lading, the
delivery receipt(s) and any other billing documents reasonably
requested by Broker. Provided such documents are received, Broker
agrees that it will endeavour to pay all
freight charges billed in accordance with the Agreement within thirty
(30) days of receipt of Carrier's bill(s) of lading and delivery
receipt(s).
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5.2
Carrier appoints and designates Broker as its agent for the purpose of
invoicing and collection of freight charges and waives any and all
rights to claim, demand, or pursue payment
from any person other than Broker for all shipments tendered pursuant
to this Agreement. Accordingly, Carrier undertakes not to contact in
any manner whatsoever Broker's customers, shippers, consignees or any
party other than Broker, concerning payment for transportation
services, and Carrier agrees that Broker is solely responsible for
payment of all freight charges to the Carrier.
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5.3
Broker shall have the right to set off claims for loss, damage or
delay, and claims for overcharge or duplicate payment, against freight
or other charges owed to Carrier.
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5.4
Carrier acknowledges that Broker's customers may have specific
requirements for delivery by appointment or at specified times due to
the nature of their businesses and receiving facilities. Accordingly,
if delivery is not made at an appointed time, or within a delivery
window, Carrier shall be liable for any penalties or charge backs which
may be imposed on Broker by its customers.
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5.5
Carrier shall have no lien, and hereby expressly waives its right to
any lien on any shipment, freight or property of Broker or any of its
customers, shippers or consignees. If, notwithstanding the foregoing,
the Carrier asserts a lien, Carrier specifically concedes as reasonable
and agrees to pay the actual cost of replacing the commodities against
which the lien is asserted, inclusive of transportation costs,
attorney's fees, bond and surety costs and all other costs incidental
to actions to recover possession and clear title to and use of any
commodities subject to a lien.
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Equipment.
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6.1
Carrier services shall be performed via motor vehicles utilized for
Carrier's transportation services (the "Equipment").
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6.2
The Equipment will: (i) be in good, safe and serviceable working
condition; (ii) have valid inspection stickers for annual mechanical
inspection; (iii) be suitable for the particular transportation
required, and include any special equipment that is requested and
agreed to by Broker when the applicable transportation is placed; and
(iv) be properly licensed and comply with the equipment specifications
for such transportation prescribed by any applicable Regulatory
Agencies. In addition, all drivers and other personnel of Carrier will
be competent, properly licensed and legally qualified to operate the
Equipment in question.
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Operating Expenses. -
Carrier shall bear the costs
and expenses of all fuel, oil, tires, parts, road services, maintenance
and repairs, licences, taxes and tolls in connection
with the use and operation of the Equipment and which may be required to
keep the Equipment in good repair and mechanical condition. Broker will
not be liable to Carrier for any damage sustained by or to Carrier's
Equipment or for loss by complication or seizure or Carrier's Equipment
by any public authority.
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Exclusive Control.
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8.1
Carrier shall have sole and exclusive control over the manner in which
Carrier and its agents perform the transportation services provided for
hereunder, and Carrier shall utilize such individuals as it may deem
necessary in connection therewith, it being understood and agreed that
such individuals shall be subject to discharge, discipline, and control
solely and exclusively by Carrier.
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8.2
Carrier represents that it is entirely independent and that it is not
substantially and economically dependent upon Broker and there is no
functional integration of Broker's and Carrier's respective operations.
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Period of Carrier
Responsibility. -
Carrier's duties and
responsibilities under this Agreement shall commence when Carrier takes
possession and control of Broker's customers' property or upon execution
of such bill of lading or receipt by Carrier, which event occurs first,
and shall end when consignee signs the bill of lading or delivers a
receipt and Carrier delivers the property at destination, or to
intermediate stop off party.
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Substituted Service.
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10.1
Carrier agrees not to interline or use other motor carriers, or
brokers, or to use substituted services by rail for the transportation
of any shipments to be tendered hereunder. If Carrier uses other
carriers, brokers or a substituted service of any type, with or without
Broker's customers' permission, Carrier agrees to remain liable for any
costs, loss, damage or delay to Broker's customers' property incurred
in transit to the same extent that Carrier would be liable if it
performed the transportation directly.
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10.2
Carrier shall not divert or reconsign any
shipment except upon written instructions from Broker. Carrier shall not
accept instructions for diversion or reconsignment
from any consignee without notice to Broker, and written consent of
Broker.
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Hazardous Waste. -
Carrier hereby covenants and
agrees that no Equipment that transports commodities for Broker's
customers, was ever used to transport refuse, garbage, trash, or solid
or liquid waste of any kind whatsoever, whether hazardous or
non-hazardous. Notwithstanding anything to the contrary herein, in the
event that Carrier breaches the terms to this Section, Broker shall have
the right to immediately terminate this Agreement without written notice
and hold Carrier liable for any resulting damages.
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Delay and Accidents. -
Carrier shall notify Broker
immediately by telephone, facsimile or email of any accidents, spills,
theft, hijacking or other events that impair the safe and prompt
delivery of the commodities in its control.
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On-Hand Freight. -
Carrier shall immediately
notify Broker by telephone, facsimile or email of any refused or
"on-hand" freight and request additional instructions
regarding delivery or storage of the "on-hand" commodities.
Such notice by Carrier shall be immediately confirmed in writing,
stating the amount, date and time storage charges will be begin to
accrue, if any.
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Bill of Lading and Other
Shipping Documents.
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14.1
Carrier shall issue a bill of lading for each shipment received by
Carrier. Said bill of lading shall indicate the kind, quantity and
condition of commodities received by Carrier. Such bill of lading shall
be evidence of receipt of such commodities by Carrier in apparent good
order and condition unless such commodities are not readily observable
(contents and condition of contents of packages unknown) or as may be
otherwise noted on the face of such receipt. However, the absence or
loss of any such bill of lading or receipt shall not relieve Carrier of
its obligations and responsibilities with respect to any services
provided hereunder.
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14.2
Carrier shall perform the loading, and verified by its signature the
safe loading and accurate count and condition of the commodities as set
forth in the bill of lading. Exceptions taken by the Carrier with
respect to quantity and condition of the commodities at origin must
also be noted and signed by shipper or shipper's agent prior to
acceptance of the commodities.
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14.3
If Broker is erroneously identified as the "carrier" on any
bill of lading or other documents at the origin point or in the course
of transit, such designation does not in any way modify or amend the
relationship between Broker and the Carrier under this Agreement or the
role of Broker as a transport service intermediary or broker.
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Delivery Receipts. -
Carrier shall obtain an
acknowledgement of delivery for all shipments by notation on the bill of
lading or a delivery receipt, signed and dated by the consignee. The
parties agree that the bill of lading or other form of receipt shall be
used solely as a receipt for shipment, and to identify the kind and
quantity of commodities, place of pick up and
delivery, shipper and consignee and other information as required by
Broker.
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Carrier's Operations.
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16.1
Carrier shall: (i) have full control of its personnel, including all
subcontractors; (ii) perform the services as an independent contractor
of, and not an agent or employee of, or joint venturer
with Broker; (iii) shall assume complete responsibility for all
salaries, commissions, municipal, provincial, federal, foreign and
domestic taxes or contribution to taxes, assessments, insurance
(including but not limited to, workers' compensation, unemployment
compensation, disability, pension and social security insurance and any
foreign equivalent) and any other financial obligations arising out of
the services provided under this Agreement or with respect to the
persons engaged in the performance of the services under this
Agreement; and (iv) comply with all applicable rules, laws and
regulations related thereto.
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16.2
Carrier shall have no authority to act on behalf of Broker, except to
the extent necessary to perform Carrier's services under this Agreement
or as may be requested by Broker from time to time.
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Compliance with Laws.
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17.1
Carrier agrees that all transportation services will be performed in
full compliance with federal, provincial, municipal and to the extent
applicable, international laws or regulations governing its operations,
as well as any legislation and related programs designed to protect
transportation activities from terrorist attacks, such as the
Custom-Trade Partnership Against Terrorism ("CTPAT") and the
Free and Secure Trade initiative.
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17.2
Carrier at all times shall maintain all licenses and certifications
required to maintain its legal right to act as a licensed carrier at
all points of origin and destination.
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17.3
Carrier shall maintain a satisfactory safety rating with all Regulatory
Agencies.
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17.4
Carrier agrees to indemnify Broker for any fines, costs, claims,
liability or expenses that may incur and arise out of violations by
Carrier of any applicable laws and regulations during Carrier's
performance under this Agreement.
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Cargo Loss and Damage Claims.
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18.1
Carrier shall bear responsibility for the safe transport and delivery
of the commodities at all times that such commodities are in Carrier's
possession, from the time of pick up and loading of the commodities
into the Equipment, until the time of delivery of the commodities to
their destination, from the time of the actual receipt of the shipment
by the Carrier at origin (as evidenced by the carrier's signed bill of
lading or other written receipt) until delivery has been made (as
evidenced by written proof of delivery or other written receipt signed
by the consignee or its agent). Any seals applied to any trailer are
not to be broken or removed prior to the delivery at destination
without prior written consent from Broker.
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18.2
Carrier shall be liable to Broker for actual loss and damage to
shipments, and for delayed deliveries, arising from Carrier's
performance of or failure to perform the services required by this
Agreement. However, Carrier will not be liable for loss, damage, or
delay to shipments caused solely by Force Majeure (as defined in
Section 31 hereinafter), or the negligence of Broker or its customers,
in which case Carrier has the burden of proving applicability of the
exception.
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18.3
Carrier shall be liable for the total actual value of the shipments
tendered by Broker to Carrier, including the freight and other costs,
if so paid. The terms "total actual value" means the value of
the commodities at the place and time of shipment.
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18.4
Broker or its customer shall file a claim for loss, delay or damage to
shipment, within sixty (60) days from the date of delivery or in case
of non-delivery, within nine (9) months of the date of shipment. Within
thirty (30) days of receiving a claim from Broker or its customer for
loss, delay or damage, Carrier shall pay or deny the claim (in which
case the reasons for denial shall be fully explained in writing to
Broker and its customer), or make a firm compromise offer.
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18.5
In the event branded or labelled commodities
are damaged, Broker's customer may determine, at its entire discretion,
whether the commodities can be salvaged, and if salvageable, the value
of such salvage. Any salvage receipts shall be deducted from the amount
of Broker's claim against Carrier. If Broker's customer permits its
commodities to be salvaged, and Carrier pays the total actual value of
the damaged commodities, Carrier may retain custody of the commodities
after removing all identifying marks or label.
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18.6
No released value rate, or other limitation of cargo liability, shall
be valid or enforceable against Broker or its customers unless
expressly agreed by Broker in a signed writing separate from any bill
of lading or other delivery receipt issued by Carrier.
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Insurance.
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19.1
Carrier shall at all times during the term of this Agreement, have and
maintain in full force and effect, public liability, property damage,
cargo and workers' compensation insurance (as required by law) with
reliable insurance companies acceptable to Broker, and in the following
minimum amounts, which amounts may be modified by Broker subsequently
upon thirty (30) days' written notice:
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public
automobile liability insurance in an amount not less than one million
dollars ($1,000,000) per occurrence, combined single limit for bodily injury
and property damage and endorsement naming Broker as additional
insured;
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comprehensive
general liability insurance in an amount not less than one million
dollars ($1,000,000) per occurrence;
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cargo
liability insurance in an amount not less than one hundred thousand
dollars ($100,000) per shipment coverage, which covers Broker (and any
shipper, consignor, consignee or beneficial owner) in the event of a
covered loss;
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workers
compensation insurance as required by law, and which complies with all
applicable provincial or state requirements;
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any
additional insurance necessary to meet Canadian and US DOT
requirements and all other federal, provincial, state and local
requirements in all jurisdictions in which Carrier operates including
namely BMC-32 and MCS-90 Endorsements to its cargo insurance policy,
in the form required by the FMCSA;
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all
insurance of the Carrier
shall be written by insurance companies having a Best's rating B+ or
better.
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19.2
Carrier's cargo insurance policies shall not exclude coverage for loss
from an unattended vehicle or from a trailer detached from the power
unit, theft or other criminal acts of Carrier's employees. If said
policy contains such exclusions, Carrier shall obtain and furnish a
policy extension or surety bond providing such coverage to satisfaction
of Broker.
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19.3
Evidence of all insurance coverage of Carrier, in the form of a
certificate of insurance, shall be provided to Broker upon execution of
this Agreement.
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19.4
All Carriers' insurance companies shall commit to notify Broker in
writing at least thirty (30) days prior to any cancellations, changes
or non-renewal of Carrier's insurance policies.
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Indemnification.
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20.1
Carrier shall defend, indemnify, and save Broker, its affiliated
entities, customers, shippers, consignees, directors, officers,
employees and agents harmless from and against any and all losses,
costs, expenses, claims, demands, liabilities, fines, damages, suits,
proceedings or actions (including all reasonable expenses and
attorneys' fees) arising out of: (i) any transportation services
performed by Carrier hereunder; (ii) injuries to or the death of any
person or persons; (iii) loss or damage to the business or property of
any person or persons, including the property of Broker; caused by or
resulting, whether directly or indirectly, from the receipt,
transportation and/or delivery of any shipment subject to this
Agreement by Carrier, or any of its agents, employees or
sub-contractors (collectively referred to as the "Claims"),
including, without limitation, Claims based on a party's breach of
warranty and Claims for any violation of any law, ordinance or
regulation, except for Claims arising out of Broker's wrongful act or
omission or negligence.
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20.2
Carrier will hold harmless and indemnify Broker for any claim for
insurance premium or any claim by an employee of the Carrier for
injuries sustained in the ordinary course of business, including, but
not limited to, drivers, lumpers, helpers,
agents or sub-contractors of Carrier.
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20.3
Carrier agrees that the foregoing indemnification of obligations shall
survive the termination of this Agreement.
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Non-Solicitation.
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21.1
During the term of this Agreement, and for a period of two (2) years
following the termination of this Agreement, Carrier shall not knowingly,
directly or indirectly, solicit or do business of a transportation
nature with any of Broker's customers who were served by Carrier as a
result of this Agreement, unless otherwise agreed to in writing.
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21.2
During the term of this Agreement, and for a period of two (2) years
following the termination of this Agreement, Carrier undertakes not to
solicit for employment any employees of Broker, except with the express
permission of Broker; provided that the foregoing does not prohibit
Carrier from pursuing employment discussions with or hiring an employee
who responds to a general advertisement initiated by Carrier.
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21.3
The Carrier agrees that the foregoing undertakings shall survive the
termination of this Agreement.
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Confidentiality.
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22.1
As part of the business relationship between Carrier and Broker,
Carrier may have or come into possession of information or data that
constitute trade secrets, know-how, confidential information or are
otherwise considered secret by Broker (hereinafter the "Information").
In consideration of the receipt of such Information and potential
business, Carrier agrees to maintain such Information in the utmost of
confidence; to use such Information solely in connection with such
business relationship; and to take all measures necessary to protect
such Information.
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22.2
Furthermore, Carrier agrees that Broker's compensation hereunder for
its services is confidential and will not be disclosed to anyone.
Carrier further agrees that it will not reveal to anyone the terms of
this Agreement, the rates of transportation services, or any other
dealings conducted between Carrier and Broker, except as required by
law.
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22.3
The Carrier agrees that the foregoing undertakings shall survive the
termination of this Agreement.
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Relationship between the
Parties. -
The relationship of Carrier
to Broker shall, at all times, be that of an independent contractor,
except that Broker will be the agent for Carrier for the collection and
payment of charges to Carrier.
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Applicable Laws. -
This Agreement shall be
governed by and interpreted in accordance with laws of the Federal Motor
Carriers Safety Administration
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Severability. -
Obligations of this Agreement
are separate and divisible and in the event that any provision is deemed
unenforceable, the balance of the Agreement shall continue in full force
and effect.
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Entire Agreement. -
This Agreement constitutes
the entire agreement of the parties with respect to the subject matter
herein and may not be modified, amended, or terminated except by written
agreement, specifically referring to this Agreement, signed by the
parties hereto.
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Waiver of Provisions.
No waiver of any breach or
default hereunder shall be considered valid unless in writing and signed
by the party giving such waiver. No such waiver shall be deemed a waiver
of any subsequent breach or default of the same or similar nature.
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Successors and Assigns. -
This Agreement shall be
binding upon and enure to the benefit of the
parties hereto, their parent corporations and divisions, successors,
legal representatives and permitted assigns. Neither of the parties
shall assign this Agreement, or any interest or right therein, without
the prior written consent of the other party except that Broker, without
prior consent, may assign this Agreement to any corporation or other
legal entity directly or indirectly controlling, controlled by or under
common control with Broker.
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Notices. -
Except for regular business
communications which may be transmitted to procedures established by
agreement or acquiescence, all notices made hereunder shall be provided
in writing and delivered by facsimile, certified mail or overnight
courier. Notice transmitted by facsimile shall be deemed received as of
the date and time of confirmation printed by sender's machine. Notice
transmitted by certified mail or overnight courier shall be deemed
received as of the date and time signed for by recipient. Notices shall
be addressed to the respective party as set forth above.
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"Force Majeure". -
Neither Broker nor Carrier
shall be liable for any delay in the performance of their respective
obligations under this Agreement resulting for any "force
majeure", including, but not limited to, acts of God, acts of
Government or other civil or military authorities, acts of terror, war or
riots. Whenever possible, in the event of a "force majeure",
the affect party shall promptly notify the other party in writing,
stating the reasons for the inability to comply with the provisions of
this Agreement and the expected duration of the "force
majeure".
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Authorized Signatories. -
It is agreed and warranted by
the parties that the individuals signing this Agreement on behalf of the
respective parties are authorized to do so. No further proof of
authorization is or shall be required.
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Originals and Counterparts. -
This Agreement may be
executed in any number of identical counterparts and each such
counterpart shall be deemed a duplicate original hereof.
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Non-exclusivity. -
The Parties acknowledge and
agree that this Agreement is not an exclusive arrangement, meaning that
the Broker shall not be required to submit any or all of its
transportation requirements by Carrier, and Carrier may provide
transportation services to other customers.
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Precedence. -
The terms and conditions of
this Agreement shall govern and supersede any contract terms and
conditions that may be prescribed by Canadian and provincial laws or
regulations, as well as any bills of lading, delivery receipts, Carrier
confirmation forms or other shipping documents.
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Language. -
The parties have expressly
requested that this Agreement and related Schedule "A" be
drawn up in the English language only.
IN WITNESS WHEREOF,
THE PARTIES HERETO HAVE EXECUTED THIS AGREEMENT AS OF THE EFFECTIVE DATE.
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