Carrier Setup Form

Broker/Carrier Agreement

This Agreement is entered into this …, by and between USA Logistics, INC. (“Broker”), a Registered Property Broker, License Number MC-263539, and …, a Registered Motor Carrier, Permit/Certificate MC# …

DOT-2 (“Carrier”); collectively, the “Parties”. (“Registered” means operated under authority issued by the Federal Motor Carrier Safety Administration (or its predecessors) within the U.S. Department of Transportation).

WHEREAS, Broker holds a license to serve as a property broker as registered, and

WHEREAS, Carrier holds authority to provide motor carrier services for shippers in interstate and/or intrastate commerce as registered, and

WHEREAS, Carrier desires to transport shipments from Broker’s Shipper accounts and Broker desires to utilize Carrier for motor carrier services as requested.

RECITALS

I.  Property Broker (“Broker”) is a person(s) who, for compensation, arranges for the truck transportation of cargo utilizing common carriers, for-hire, to provide the actual transportation of goods and products. Broker must obtain a Broker Authority and maintain Surety Bond on file with the Federal Motor Carrier Safety Administration (FMCSA) for legal operation as a Property Broker service provider.

II.  A Common Carrier (“Carrier”) provides for-hire truck transportation of property to the general public. Common Carriers must file a Motor Property Carrier and Broker Authority and obtain a USDOT number by filing a Motor Carrier Identification Report ‐ MCS 150 and Safety Certification Application ‐ MCS 150A. Common Carriers must file insurance coverage for both liability and cargo.

Carrier License MC#-…

III.  Shipper is any person(s) who is the consignor or consignee of property identified as such in the bill of lading contract. The shipper owns the property being transported and is responsible for paying the transportation charges to (“Broker”), the contracted service provider.

AGREEMENT

1.  CARRIER REPRESENTS AND WARRANTS THAT IT:

• A.  Is a Registered Motor Carrier of Property authorized to provide transportation of property under contracts with shippers and receivers and/or brokers of general commodities.
• B.  Shall transport the property, under its own operating authority and equipment; subject to the terms of this Agreement.
• C.  Agrees that a Shipper’s insertion of BROKER’s name as the carrier on a bill of lading shall be for the Shipper’s convenience only and shall not change BROKER’s status as a property broker and/or CARRIER’s status as a motor carrier.
• D.  Will not re-broker, assign, subcontract or interline the shipments hereunder. If CARRIER breaches this provision, BROKER shall have the right of paying the monies it owes CARRIER directly to the delivering carrier and CARRIER will relinquish rights to collect from BROKER any monies previously owed CARRIER for each occurrence. CARRIER shall not be released from any liability to BROKER under this Agreement. In addition to the indemnity obligation in Par 1 .H CARRIER will be liable for consequential damages for violation of the Paragraph.
• E.  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 including, but not limited to: transportation of Hazardous Materials, (including the licensing and training of drivers), as defined in 49 C.F.R. § 172.800, § 173, and § 397 et seq. to the extent that any shipments hereunder constitute Hazardous Materials; security regulations; owner/operator lease regulations; loading and securement of freight regulations; implementation and maintenance of driver safety regulations including, but not limited to, hiring, controlled substances, and hours of service regulations; sanitation, temperature, and contamination requirements for transporting food, perishable, and other products, qualification and licensing and training of drivers; implementation and maintenance of equipment safety regulations; maintenance and control of the means and method of transportation including, but not limited to, performance of its drivers.
• F.  CARRIER will notify BROKER immediately if its federal Operating Authority is revoked, suspended, or rendered inactive for any reason; and/or if it is sold, or if there is a change in control of ownership, and/or any insurance required hereunder is threatened to be or is terminated, cancelled, suspended, or revoked for any reason.
• G.  Safety Rating: Carrier shall endeavor to maintain a satisfactory U.S. DOT Safety Rating but under no circumstances is Carrier allowed to provide services under this contract if their safety rating falls to “unsatisfactory.” Carrier and will notify BROKER in writing immediately if its safety rating is changed to “Unsatisfactory” or “Conditional.”
• H.  INDEMNIFICATION
  • i.  CARRIER WILL INDEMNIFY, DEFEND AND HOLD HARMLESS BROKER, ITS AFFILIATES AND ITS CUSTOMERS (AS INTENDED THIRD PARTY BENEFICIARIES) FROM ANY AND AGAINST ALL LOSSES (as defined below) ARISING OUT OF OR IN CONNECTION WITH THE TRANSPORTATION SERVICES PROVIDED UNDER THIS CONTRACT, INCLUDING THE LOADING, UNLOADING, HANDLING, TRANSPORTATION, POSSESSION, CUSTODY, USE OR MAINTENANCE OF CARGO OR EQUIPMENT OR PERFORMANCE OF THIS CONTRACT (INCLUDING BREACH HEREOF) BY CARRIER OR ANY CARRIER REPRESENTATIVE. CARRIER’S OBLIGATION TO INDEMNIFY AND DEFEND SHALL NOT BE AFFECTED BY ALLEGED NEGLIGENCE OR WILLFUL MISCONDUCT OF BROKER, ITS AFFILIATES OR CUSTOMERS. IT IS THE INTENT OF THE PARTIES THAT THIS PROVISION BE CONSTRUED TO PROVIDE INDEMNIFICATION TO BROKER, ITS AFFILIATES AND CUSTOMERS TO THE MAXIMUM EXTENT PERMITTED BY LAW. IF THIS PROVISION IS FOUND IN ANY WAY TO BE OVERBROAD, IT IS THE PARTIES INTENT THAT THIS PROVISION BE ENFORCED TO ALLOW INDEMNIFICATION TO THE MAXIMUM EXTENT PERMISSIBLE. “Losses” mean any and all losses, liabilities, obligations, personal injury, bodily injury, property damage, loss or theft of property, damages, penalties, actions, causes of action, claims, suits, demands, costs and expenses of any nature whatsoever, including reasonable attorneys’ and paralegals’ fees and other costs of defense, investigation and settlement, costs of containment, cleanup and remediation of spills, releases or other environmental contamination and costs of enforcement of indemnity obligations.
• I.  Authorizes BROKER to invoice CARRIER’S freight charges to shipper, consignee, or third parties responsible for payment.
• J.  Has investigated, monitors, and agrees to conduct business hereunder based on the credit-worthiness of BROKER and is granting BROKER credit terms accordingly.
• K.  CARRIER agrees that it will look solely to BROKER for the payment of its charges and will not contact or pursue BROKER’S customers or the shipper or consignee for payment of freight, or other charges owed to CARRIER.

2.  CARRIER RESPONSIBILITIES

• A.  Equipment: Subject to its representations and warranties in Section 1, above, CARRIER agrees to provide the necessary equipment and qualified personnel employed by CARRIER for completion of the transportation services required by BROKER and/or its customers. CARRIER will not subcontract or re-broker shipments tendered by the BROKER. CARRIER will not supply equipment that has been used to transport hazardous wastes, solid or liquid, regardless of whether they meet the definition in 40 C.F.R. §261.1 et. Seq. CARRIER agrees that all shipments will be transported and delivered with reasonable dispatch, or as otherwise agreed in writing.
• B.  Bills of Lading: CARRIER shall issue a bill of lading in compliance with 49 U.S.C. §80101 et seq., 49 C.F.R. §373.101 (and any amendments thereto), for the property it receives for transportation under this Agreement. Unless otherwise agreed in writing, CARRIER shall become fully responsible/liable for the freight when it takes/receives possession thereof, and the trailer(s) is loaded, regardless of whether a bill of lading has been issued, and/or signed, and/or delivered to CARRIER, and which responsibility/liability shall continue until delivery of the shipment to the consignee and the consignee signs the bill of lading or delivery receipt. Any terms of the bill of lading (including but not limited to payment terms) inconsistent with the terms of this Agreement shall be controlled by the terms of this Agreement. CARRIER shall deliver a copy of the bill of lading and proof of delivery with its billing, and such other documentation as may be agreed to by the parties within 10 business day. All bills of lading received after 10 business days of completion will be subject to a transaction fee of $100. Failure to issue a bill of lading, or sign a bill of lading acknowledging receipt of the cargo by CARRIER, shall not affect the liability of CARRIER.
• C.  Loss & Damage Claims:
  • i.  Carrier shall comply with 49 C.F.R. §370.1 et seq. and any amendments and/or any other applicable regulations adopted by the Federal Motor Carrier Safety Administration, U.S. Department of Transportation, or any applicable state regulatory agency, for processing all loss and damage claims and salvage, and
  • ii.  CARRIER’s liability for any cargo damage, loss, or theft from any cause shall be determined under the Carmack Amendment, 49 U.S.C. § 14706; and
  • iii.  Special Damages: CARRIER’s indemnification liability (Section 1; part H) for freight loss and damage claims under this sub par C iii. (a) shall include legal fees which constitute special damages, the risk of which is expressly assumed by CARRIER, and which shall not be limited by any liability of CARRIER under sub par (a) above.
  • iv.  Except as provided in section 3, below, neither Party shall be liable to the other for consequential damages without written notification of the risk of loss and its approximate financial amount and agreement to assume such responsibility in writing.
  • v.  Notwithstanding the terms of 49 C.F.R. §370.9, CARRIER shall pay, decline or make settlement offer in writing on all cargo loss or damage claims within 60 days of receipt of the claim. Failure of CARRIER to pay, decline or offer settlement within the 60 day period shall be deemed admission by CARRIER of full liability for the amount claimed and a material breach of this Agreement.
  • vi.  Broker not Liable: Broker shall have no liability for any loss or damage to any goods transported by Carrier on shipments tendered by Broker. Carrier shall be solely and exclusively responsible for loss or damage to, or delay in delivery of, goods and shipments transported by Carrier under this Agreement. If, despite the fact that Broker is not liable for cargo loss, damage or delay claims, it pays such claim(s) to the Shipper, Consignee, or other third party, Carrier shall then be responsible to Broker for such claim(s), as though Broker (i) were the Shipper or (ii) had received an assignment of such claim(s) from the shipper.
  • vii.  Deduction for Claims: Broker shall have the right, but not the obligation to deduct from any amount due Carrier hereunder the amount of any and all outstanding and unsettled claims against Carrier for delay, loss or damage; and said amount shall be held in escrow by Broker and applied to the corresponding underlying claim filed by Broker’s Shipper or refunded to the Carrier, as appropriate, depending upon the ultimate resolution of the claim.
• D.  Insurance:
  • i.  Carrier agrees 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. 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 Carrier provides 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. 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, its affiliates, or its Customer based on any loss or liability insured under the insurance stipulated herein. Carrier represents 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. Carrier shall at all times during the term of this agreement have and maintain in full force and effect, at its expense, (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) Commercial General Liability insurance, in a limit of not less than US$1,000,000 per occurrence, (iv) Worker’s Compensation insurance in the amounts required by statute, and Employer’s Liability insurance with limits not less than US$500,000 per occurrence, and (v) 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. Carrier shall, prior to providing transportation and related services pursuant to this Agreement, name Broker, as a certificate holder, as required on the foregoing insurance policies and shall cause its insurance company to issue a certificate to Broker, evidencing the foregoing. When Carrier provides Transportation Services that 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. During this Contract’s term, the insurance policies required hereunder and any replacement policies will (i) insure the interests of Broker and, (ii) cover all drivers, equipment and cargo used in providing Transportation Services and (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.
  • ii.  CARRIER warrants that they will maintain adequate fuel levels for the refrigeration or heating unit and assume full liability for claims and expenses incurred by the freight broker or the shipper for failure to do so.
  • iii.  The CARRIER must provide their cargo insurance with all records that relate to a loss and permit copies and abstracts to be made from them.
• E.  Assignment of Rights: CARRIER automatically assigns to BROKER all its rights to collect freight charges from Shipper or any responsible third party on receipt of payment from BROKER.

3.  BROKER RESPONSIBILITIES

• A.  Shipments, Billing & Rates: BROKER agrees to solicit and obtain freight transportation business for CARRIER to the mutual benefit of CARRIER and BROKER, and shall offer CARRIER at least three (3) loads/shipments annually. BROKER shall inform CARRIER of (a) place of origin and destination of all shipments; and (b) if applicable, any special shipping instructions or special equipment requirements, of which BROKER has been timely notified.
  • i.  BROKER agrees to conduct all billing services to shippers. CARRIER shall invoice BROKER for its charges for providing motor carrier services to the address listed herein, as mutually agreed in writing, by fax, or by electronic means, contained in BROKER’s Load Confirmation Sheet(s) incorporated herein by reference (Exhibit A, et. Seq.) Additional rates for truckload or LTL shipments, or modifications or amendments of the above rates, or additional rates, may be established to meet changing market conditions, shipper requirements, BROKER requirements, and/or specific shipping schedules as mutually agreed upon, and shall be confirmed in writing (or by fax) by both Parties. Any such additional, modified, or amended rates, changes in rates shall automatically be incorporated herein by reference as part of Exhibit A, Amendment 1, et seq.
  • ii.  RATES: Additionally, any rates, which may be verbally agreed upon, shall be deemed confirmed in writing where CARRIER has billed the agreed rate and BROKER has paid it. All written confirmations of rates, including confirmations by billing and payment, shall be incorporated herein by reference as part of Exhibit A, Amendment 1, et seq. Rates or charges, including but not limited to stop-offs, detention, loading or unloading, fuel surcharges, or other accessorial charges, released rates or values, or tariff rule or circulars, shall only be valid when specifically agreed to in a signed writing by the Parties.
  • iii.  PAYMENT: The Parties agree that BROKER is the sole party responsible for payment of CARRIER’s charges. BROKER agrees to pay CARRIER’s 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 this Agreement. CARRIER shall invoice and forward all bills of ladings to BROKER at:
    
            USA Logistics, Inc.
            P.O. Box 2977
            Chesterton, IN. 46304-2977
    
  • iv.  BOND: BROKER shall maintain a surety bond/trust fund as agreed to in the amount of $75,000.00 and on file with the Federal Motor Carrier Safety Administration in the form and amount not less than that required by that agency’s regulations.

4.  MISCELLANEOUS

• A.  Independent Contractor: It is understood and agreed that the relationship between BROKER and CARRIER is that of independent contractor and that no employer/employee relationship exists, or is intended. BROKER has no control of any kind over CARRIER, including but not limited to routing of freight, and nothing contained herein shall be construed to be inconsistent with this provision.
• B.  Non-Exclusive Agreement: CARRIER and BROKER acknowledge and agree that this contact does not bind the respective Parties to exclusive services to each other. Either party may enter into similar agreements with other carriers, brokers, or freight forwarders.
• C.  Waiver of Provisions:
  • i.  Failure of either Party to enforce a breach or waiver of any provision or term of this Agreement shall not be deemed to constitute a waiver of any subsequent failure or breach, and shall not affect or limit the right of either party to thereafter enforce such a term or provision.
  • ii.  This Agreement is for specified services pursuant to 49 U.S.C. § 14101(b). To the extent that terms and conditions herein are inconsistent with Part (b), Subtitle IV, of Title 49 U.S.C. (ICC Termination Act of 1995), the Parties expressly waive any or all rights and remedies they may have under the Act.
• D.  NO BACK SOLICITATION: CARRIER shall not solicit freight shipments for the duration of this Agreement and, for two years following termination of this Agreement for any reason, from any shipper, consignor, consignee, or any customer of BROKER, when such shipments were first tendered to CARRIER by BROKER. In the event CARRIER violates this provision, the Parties agree that BROKER shall be entitled to the liquidated damages in amount equal to twenty percent (20%) of the gross revenue per shipment. CARRIER shall also be liable for any expenses incurred by BROKER should BROKER elect to also seek to enjoin CARRIER from violating this provision.
• E.  The limitations of liability for cargo loss and damage as well as other liabilities, arising out of the transportation of shipments, which originate outside the United States of America, may be subject to the laws of the country of origination.
• F.  DISPUTE RESOLUTION: In the event of a dispute arising out of this Agreement, including but not limited to Federal or State statutory claims, the Party’s agree the Venue for any such action shall be in the State of Indiana. Unless preempted or controlled by federal transportation law and regulations, the laws of the State of Indiana shall be controlling. In the event a conflict between the Agreement and Bill of Lading arises, the terms and conditions of this Agreement govern.
• G.  MODIFICATION of AGREEMENT: This Agreement and Exhibit A et. seq. attached may not be amended, except by mutual written agreement, or the procedures set forth above.
• H.  CONTRACT TERM: The term of this Agreement shall be one year from the date hereof and thereafter it shall automatically be renewed for successive one (1) year periods, unless terminated, upon thirty (30) day’s prior written notice, with or without cause, by either Party at any time, including the initial term. In performance of any work in progress in accordance with the terms of this Agreement.
• I.  SEVERANCE SURVIVAL: In the event any of the terms of this Agreement are determined to be invalid or unenforceable, no other terms shall be affected and the unaffected terms shall remain valid and enforceable as written. The representations, rights and obligations of the parties hereunder shall survive termination of this Agreement for any reason.
• J.  COUNTERPARTS: This Agreement may be executed in any number of counterparts each of which shall be deemed to be a duplicate original hereof.
• K.  FAX CONSENT: The Parties to this Agreement are authorized to fax to each other at the number shown herein, (or otherwise modified in writing from time to time) shipment availabilities, equipment and rate promotions, or any advertisements or new services.
• L.  ENTIRE AGREEMENT: Except for Exhibit A and its amendments, and unless otherwise agreed in writing, this Agreement contains the entire understanding of the Parties and supersedes all verbal or written prior agreements, arrangements, and understandings of the Parties relating to the subject matter stated herein. 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.
• M.  NOTICES:
  • i.  All notices provided or required by this Agreement, shall be made in writing and delivered, return receipt requested, to the addresses shown herein with postage prepaid; or by confirmed (electronically acknowledged on paper) fax.
  • ii.  The Parties shall promptly notify each other of any claim that is asserted against either of them by anyone arising out of the Parties performance of this Agreement.
  • iii.  Notices sent as required hereunder, to the addresses shown in this Agreement shall be deemed sent to the correct address, unless the Parties are notified in writing of any changes in address.
• N.  CONFIDENTIALITY:
  • i.  In addition to Confidential Information protected by law, statutory or otherwise, the Parties agree that all of their financial information and that of their customers, including but not limited to freight and brokerage rates, amounts received for brokerage services, amounts of freight charges collected, freight volume requirements, as well as personal customer information, customer shipping or other logistics requirements shared or learned between the Parties and their customers, shall be treated as Confidential, and shall not be disclosed or used for any reason without prior written consent.
  • ii.  In the event of violation of this Confidentiality paragraph, the Parties intend and agree that the remedy at law, including monetary damages, may be inadequate and that the Parties shall be entitled, in addition to any other remedy they may have, to an injunction restraining the violating Party from further violation of this Agreement in which case the prevailing Party shall be liable for all costs and expenses incurred including, but not limited to, reasonable attorney’s fees.