Partner Agreement/Terms and Conditions
This Agreement (“Agreement”) is made by and between yourLTL, LLC (“yourLTL”) and the Customer (the “Customer”, collectively with yourLTL, the “Parties” and individually, a “Party”). For purposes of this Agreement, “Parties” shall include the divisions, subsidiaries, and affiliates of the Parties identified herein. By using the yourLTL platform (the “Platform”), Customer affirms that Customer accepts and is bound by this Agreement.
Parties: Customer is a broker, shipper and/or consignee of certain goods it wishes to have transported using the Platform. yourLTL is registered as a transportation freight broker with the FMCSA (MC-856841), with offices at 15800 Birmingham Hwy, Bldg 500, Milton, GA 30004. yourLTL is not acting as a Motor Carrier or Common Carrier or Contract Carrier within the meaning of USC Title 49.
Services: yourLTL contracts with various LTL carriers (“Carriers”) on behalf of the Customer for the purpose of arranging transportation of Customer’s goods in interstate and foreign commerce. Negotiated pricing and shipping arrangements can only be used on this Platform. yourLTL reserves the right, at its sole discretion, to refuse any shipment at any time. Customer agrees that it shall not, during the term hereof, and for a period of twenty-four (24) months from the date of the termination of this Agreement, interfere with, circumvent or attempt to circumvent, avoid, by-pass, or obviate yourLTL’s relationship with any Carrier, or other haulers, trucking companies, prime contractors, subcontractors, producers, sellers, buyers, brokers, dealers, government departments, or distributors, with whom yourLTL had contact for the purpose of transporting shipments directly for or on behalf of Customer or to change, increase or avoid directly or indirectly payment of established, or to be established, rates and commissions.
Term & Termination: This Agreement shall be in effect for a period of one (1) year beginning with the date of electronic acceptance and shall automatically renew for consecutive one (1) year periods unless Customer provides sixty (60) days prior written notice. This Agreement may be terminated by either Party for any breach of this Agreement. Termination of this Agreement shall not relieve either Party from completing and performing their obligations to each other and to carriers and/or shipper customers, or any of the obligations arising out of the terms contained in this agreement.
Bill of Lading: Customer will use the Platform generated Bill of Lading (“BOL”). Customer shall complete all the appropriate documents required for carriage, in light of the services being sought and the pick- up and destination requested. If shipper fails to use the Platform generated BOL, the Customer will be charged a BOL fee of $35.00 in addition to the Carrier BOL Change Fee which varies. In the event Customer fails to timely and properly complete the appropriate documents, yourLTL may, but without the obligation to, complete, correct, or replace the documents. If a substitute form of BOL is required to complete delivery of this shipment for any reason and yourLTL completes that document, the terms of the completed BOL will govern and yourLTL will be released from all liability for undertaking such actions on behalf of Customer, including without limitation, liability, in whole or in part, for negligence by yourLTL. All BOL’s are non-negotiable and will be deemed to have been prepared by Customer (even when prepared by yourLTL on behalf of Customer) in accordance with Customer’s instructions and approved by Customer. yourLTL shall have no obligation to make any payments or honor any rate quotes in any of the following instances: (1) the unauthorized alteration or use of the BOL; (2) tendering of shipments to any Carrier other than that designated by yourLTL; (3) the use of any bill of lading not authorized or issued by yourLTL; or (4) pricing issued by yourLTL is used directly with the Carrier.
In the event Customer does not use the BOL, yourLTL will not be liable for any issues related to the BOL and no account will be credited. Customer will pay to yourLTL any lost revenue from any shipments not utilizing the BOL.
Customer Representation and Warranties: Customer represents and warrants that it will be in compliance, at all times, with all applicable laws, rules, and regulations, including applicable laws relating to customs, import and export requirements by country to, from, through and over which the shipment may be carried (collectively, “Applicable Law”). Customer agrees to furnish such information and complete and attach to the BOL such documents as are necessary to comply with Applicable Law. Any individual or entity acting on behalf of Customer in scheduling shipments or undertaking on any other performance hereunder warrants and represents that he/she/it has the right to act on behalf of and legally bind Customer. yourLTL assumes no liability for any loss or damage due to the failure of Customer to comply with Applicable Law and Customer shall defend, indemnify and hold yourLTL harmless for any claims or damages resulting from violation of Applicable Law, including attorneys’ fees and costs incurred by yourLTL. Customer shall not back solicit rates negotiated by yourLTL on the Customer’s behalf. Any restrictions on yourLTL’s ability to solicit orders from any third party shall expire and be of no further force and effect, in the event Customer attempts to back solicit rates negotiated by yourLTL on the Customer’s behalf.
Tariffs; Terms and Conditions of Carrier: In the event of a conflict of the terms of this Agreement and the tariff then in effect with the Carrier, this Agreement shall apply to the transport and shall take precedence in the interpretation of the rights and obligations of the Parties. Customer is responsible for requesting and reviewing tariffs in effect for a designated Carrier. yourLTL has no obligation to provide copies of Motor Carrier tariffs, or any information contained therein, to Customer.
Payment: All charges are payable in U.S. Dollars and are due and payable fifteen (15) days from the invoice date. Past due invoices shall be subject to an additional charge at a rate of 2.5% on the outstanding balance accruing in 15-day increments. All funds received by yourLTL may be applied to the oldest (based on pick up date) invoiced BOL outstanding. Over payments do not accrue interest. In the event past due invoices are given to attorney or collections agency for collections, Customer agrees to pay, in addition to the invoice balance, all interest and collections costs, including attorneys’ fees actually incurred. Disputes do not change the due date of the invoice. 1st dispute if denied is due within invoice terms, as stated. If carrier returns results after the term, invoice is due upon receipt. yourLTL may, for a $35.00 fee, file a second dispute once invoice is settled. If that dispute proves successful in the customers favor a credit for the disputed amount will be applied to the customers invoice of choice.
Credit Approval: Payment terms and credit limits are subject to credit approval, which shall be determined from time to time, in the sole discretion of yourLTL. Customer grants yourLTL the right to perform such credit and background searches as yourLTL deems necessary. When paying by credit card or electronic funds, Customer agrees it will be responsible for all charges due and owed, including any adjustments on account of such Customer’s shipment. Customer authorizes yourLTL to charge Customer’s credit card or bank account for any applicable charges, including applicable sales taxes and other government charges.
Determination of Charges: Customer shall be liable for all charges payable on account of such Customer’s shipment. Such charges may include transportation, fuel and other applicable accessorial charges, any charges made by the Carrier(s) after the shipment, and all duties, customs assessments, governmental fees, penalties, fines and taxes. Charges may be amended if: (1) Customer repeatedly inputs or provides incorrect information for Carrier; (2) NMFC code and/or Sub-code is incorrect or was not provided; (3) additional services were required by the Carrier; or (4) Customer authorized Carrier to perform the pick-up, transportation and delivery functions other than contemplated on the BOL. Customer shall dispute any invoice in writing, specifically indicating the nature of the dispute, and made within two (2) business days from the invoice date. In the event no written dispute notice is received, the charges will be conclusively presumed to be valid. yourLTL holds no liability if the Carrier API loses temporary connection which results in a non-rating accessorial or additional Carrier fees that do not API.
Claims and Limitations of Liability: yourLTL is not liable for any loss, damage, mis-delivery or non-delivery caused by: (1) the act, default or omission of a Carrier, Customer or any other party who claims interest in the shipment; (2) the nature of the shipment or any defect therein; (3) a violation by Customer of any provision of this Agreement, the BOL, the Carrier’s tariff, including improper or insufficient packing, securing, marking or addressing; (4) failure to observe any of the rules relating to shipments not acceptable only under certain conditions; (5) acts of God, perils of the air, public enemies, public authorities, acts or omissions, customs or quarantine officials, wars, riots, strikes, labor disputes, shortages, weather conditions or mechanical delay or failure of equipment, vehicles or aircraft; (6) the acts or omissions of any person other than employees of yourLTL; or (7) the selection of Carrier for a particular shipment. Customer acknowledges that in order to provide competitive rates for the services that the Parties have agreed, as a material term of this Agreement, that the risk of loss or damage incurred as a result of yourLTL alleged negligence or misconduct shall be limited to the fees that yourLTL has been paid with respect to the subject shipment. Customer specifically acknowledges that yourLTL shall have no liability for cargo loss, damage, destruction or delay (“Cargo Claims”) except to the extent such Cargo Claims are solely caused by yourLTL’s negligent acts or omissions. Cargo liability is governed by the Carmack Amendment 49 USC14706. Handling and disposition of Loss and Damage Claims and Processing Salvage is governed by 49 CFR 370. Customer shall report concealed damage within 5 business days of delivery. Formal claims for loss or damage shall be filed within 9 months of delivery; in the event of non-delivery, within 9 months of the time product should have been delivered. Payment of freight charges is required to start the claim process. There is a minimum claim amount of Fifty Dollars ($50.00) for concealed damage claims in order for yourLTL to file a claim with the Carrier. Customer may not offset claim amounts from payables.
Insurance: Customer will look solely to its own insurance, a shipper’s policy, or insurance provided by the Carrier for damages of goods in transit. Each Carrier’s governing tariff will determine the standard liability cargo coverage offered on any shipment, subject to any exception value. If the shipment contains freight with a predetermined exception value, as determined by the selected Carrier, the maximum exception liability will override the liability otherwise provided by the tariff. Customer acknowledges a claim for damages does not relieve it for payment under the terms of this Agreement. Timely payment is a condition precedent to the processing of a damage or insurance claim. All freight cargo claims should be submitted to yourLTL for transmission to the Carrier or its insurer. yourLTL will attempt to assist in the resolution of freight claims, but has no responsibility or liability therefore. If purchasing insurance through exelerate, the coverage by the Carrier shall be subrogated as follows: In the event of payment under this policy, the Insurer shall be immediately subrogated to all rights and remedies as the Insured may have against any third party with respect to such payment. The Insured shall execute and deliver such instruments and papers as may be necessary to secure such rights and agrees to perform all such things as may be necessary, including providing testimony and court appearances. If at any point the Insured, or the Insured’s employees, officers, or directors, impairs or diminishes the rights to which the Insurer would be subrogated upon payment, the Insurer may deduct from such payment a sum equal to the estimated recovery lost by reason of the Insured’s action or inaction. Any recoveries shall be applied first to subrogation expenses, second to damages, third to claims expenses, and lastly to the deductible.
Indemnification: Customer agrees to indemnify and hold harmless yourLTL from any claim or demand, including any and all losses, liabilities, claims, demands, damages, costs or expenses, causes of action, suits, proceedings, judgments, awards, executions, and liens, including attorneys’ fees and costs incurred, whether brought by third parties or otherwise, due to or arising out of: (1) Customer’s breach of this Agreement; or (2) Customer’s violation of Applicable Law or Customer’s violation of the rights of a third party, including the infringement by Customer of any intellectual property or other proprietary or contract right of any person or entity. The foregoing indemnity obligations will survive any termination of the Agreement. yourLTL reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by Customer, which will not excuse Customer’s indemnity obligations under this Agreement. Customer agrees not to settle any matter subject to the foregoing indemnification obligations without the express consent and approval of yourLTL, which may be granted or withheld in its sole discretion.
Web Site Disclaimer: EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, YOURLTL MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH REGARD TO SHIPMENTS, WAREHOUSED GOODS, ITEMS IN TRANSIT OR DELIVERIES OR WITH REGARD TO THE INFORMATION PROVIDED ON THE WEBSITE OR SERVICES RELATED TO TRANSACTIONS CONDUCTED ON THIS WEBSITE. YOURLTL CANNOT GUARANTEE DELIVERY BY ANY SPECIFIC TIME OR DATE. IN NO EVENT, SHALL YOURLTL BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, DAMAGES, INCLUDING DAMAGES RELATING TO LOSS OF PROFITS OR INCOME, WHETHER OR NOT SUCH DAMAGES WERE REASONABLY FORESEEABLE OR MADE KNOWN TO YOURLTL.
Rates:“Less than Truck Load” (“LTL”) rates are based on the calculated density and/or freight class as determined by the National Motor Freight Classification (“NMFC”) and are weight based. All displayed transit times are estimates only and do not include day of pickup. LTL pickup dates are not guaranteed. If a shipment includes over- dimensional freight, additional charges and transit days may apply.
Guaranteed Services: yourLTL will provide LTL Guaranteed Services for additional charge, if requested by the Customer. LTL delivery times generally do not begin to run until the day after the pickup of the shipment, except as otherwise noted by the carrier selected. Guaranteed Service transit times do not include holiday and/or “no service” days as defined by the individual Carrier. The Customer is liable for all charges related to the shipment. In the event of a Carrier’s failure to comply with the guaranteed service requested, the Customer shall have seven (7) days from the actual delivery date of shipment to file a written claim request with yourLTL. If yourLTL does not timely receive a claim request within fourteen (14) days, the service provided by the LTL carrier will be deemed to have met all guaranteed service standards and the claim request will be considered invalid and denied. In the event of the Carrier’s failure to comply with the guaranteed service requested and after the Carrier has agreed to liability and has paid the amount to yourLTL, yourLTL will credit the account of Customer with such amount paid by the Carrier.
Attorneys’ Fees: Should any legal proceeding be commenced between the Parties concerning the terms of this Agreement, or the rights and duties of the Parties, the prevailing party in such proceeding shall be entitled, in addition to such other relief as may be granted, to costs, expenses and attorney fees actually incurred.
Execution:This Agreement shall be binding upon receipt by yourLTL, of Customer’s acknowledgment of its intent to be bound thereby, as evidenced by its designation of acceptance of yourLTL’s web page or by its execution of the BOL, or by other acknowledgment by the Customer.
Construction: This Agreement is intended to express the mutual intent of the Parties hereto, and irrespective of the identity of the Party or counsel who prepared this Agreement, no rule of strict construction shall be applied against any Party.
Governing Law; Forum; Venue: This Agreement is deemed executed, delivered and performed in the State of Georgia, and the substantive laws of the State of Georgia and Federal law as applied in Georgia without reference to choice of law principles and specifically excluding the United Nations Convention on Contracts for the International Sales of Goods, shall govern its interpretation and enforcement. Any action brought to interpret or enforce any provisions of this Agreement, or otherwise relating to or arising from this Agreement, shall be commenced and maintained in the Superior Court in and for the County of Fulton in the State of Georgia and each Party consents to jurisdiction and venue in such court for such purposes.
Modification and Waiver: yourLTL reserves the right, in its sole discretion, to unilaterally amend, modify, or change this Agreement (each a “Modification”), at any time and from time to time. Whenever a Modification is made to this Agreement, yourLTL will post an updated version of this Agreement on the website. By continuing to use the Platform after any Modification is posted, Customer agrees to be bound by such Modification. Customer agrees to carefully review this Agreement on the website from time to time in order to maintain awareness of all Modifications, and agree that each time Customer utilizes the Platform, the then-current version of this Agreement as posted on the website will apply. Customer may not make any Modifications.
Materiality: All covenants, agreements, representations and warranties made herein shall be deemed to be material and to have been relied on by the Parties in entering into this Agreement and shall survive the termination of this Agreement.
Severability; Integration:The inapplicability or unenforceability of any provision of this Agreement shall not limit or impair the operation or validity of any other provision of this Agreement. This Agreement, the applicable BOLs, and the documents incorporated into this Agreement by reference, constitutes and embodies the full and complete understanding and agreement of the Parties hereto and supersedes all prior understandings, whether oral or written. No representation, promise, inducement or statement of intention has been made by any Party hereto which is not contemplated by or embodied in this Agreement, and no Party hereto shall be bound by or liable for any alleged misrepresentation, promise, inducement or statement of intention not so set forth.
Additional Instruments and Acts:The Parties to this Agreement shall execute (with acknowledgment or in affidavit form, if required) any further or additional instruments, and shall perform any acts, which are or may become reasonably necessary to effectuate and carry out the purposes of this Agreement, without the necessity of incurring any additional expense.
Interpretation: In this Agreement the singular includes the plural, and the plural the singular; words importing any gender include the other genders; references to “writing” include printing, typing, lithography and other means of reproducing words in a tangible visible form; the words “including,” “includes” and “include” shall be deemed to be followed by the words “without limitation.”
Authority: By submission of this Agreement, the Customer hereto represents and warrants their authority to act in the capacity stated. By submission of this Agreement each Party represents and warrants its right, power and authority to enter into and to perform its obligations under this Agreement.
Fees: All shipments covered under Customer’s transferred pricing will be assessed a $4.80 fee per shipment to be paid within 15-day terms. When onboarding transferred pricing programs (API connection) for carriers out of the yourLTL carrier network there will be one-time $125.00 charge. If Customer provides erroneous or misleading shipment information that takes up unnecessary back office time, yourLTL reserves the right to charge a $35.00 consideration fee for each shipment. If customer requests more than one carrier communication and/or back office requirement or communication for any and all bill settlement with yourLTL or the carrier past the 1st denial, each attempt may require a $35.00 processing fee. Customer will receive a written warning before consideration fees are assessed.
Binding Nature of Agreement; Assignment: This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective heirs, personal representatives, successors and assigns, except that no Party may assign, delegate or transfer any of its obligations under this Agreement without the prior written consent of the other Party hereto, which consent shall not be unreasonably withheld.
Headings: The headings used in this Agreement are used for administrative purposes only and do not constitute substantive matter to be considered in construing the terms of this Agreement.
No Other Parties to Benefit: This Agreement is made for the sole benefit of the Parties hereto and their successors and permitted assigns. Except as expressly provided herein, no other person or entity is intended to or shall have the rights or benefits hereunder, whether as third-party beneficiaries or otherwise.
Customer Modification to Documents: YOURLTL DISCLAIMS ANY AND ALL LIABILITY WHEN YOURLTL USER MANUAL OR DOCUMENTS ARE RECREATED BY CUSTOMER, INCLUDING ANY EXPRESS OR IMPLIED WARRANTIES, WHETHER ORAL OR WRITTEN, FOR CUSTOMER’S USE WITH THIRD PARTIES. THE CUSTOMER ACKNOWLEDGES THAT NO REPRESENTATION HAS BEEN MADE BY YOURLTL AS TO THE FITNESS OF THE CUSTOMER’S SERVICES FOR THE THIRD PARTY’S INTENDED PURPOSE.
Remedies: In the event of a breach of this Agreement or any term hereof by any party, the other Party shall have all rights and remedies available at law, in equity, or under the terms of this Agreement, except as otherwise limited herein.
A. BROKER is licensed as a Property Broker by the Federal Motor Carrier Safety Administration (FMCSA) in Docket Number MC-856841 or by appropriate State agencies, and as a licensed broker, arranges for freight transportation. A copy of BROKER’s authority, and a copy of BROKER’s Surety Bond or trust fund agreement and insurance policy are available upon request after application is completed; and
B. 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:
1. TERM. Subject to Paragraph 12, the term of this Agreement shall be one (1) year, commencing on the date shown above, and shall automatically renew for successive one-year periods; provided that either Party may terminate this Agreement on 30 days written notice to the other Party, with or without cause, or as otherwise provided in this Agreement.
2. 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. SHIPPER agrees to accept reasonable substitutionary proof of delivery for billing purposes if any CARRIER hired to move the applicable load of freight fails to provide BROKER proof of delivery within 3 days of actual delivery.
A. There is no minimum shipping requirement. SHIPPER is not restricted from tendering freight to other brokers, freight forwarders, third-party logistics providers, or directly to motor carriers. BROKER is not restricted from arranging transportation of freight for other parties.
B. SHIPPER shall be responsible to BROKER for: Timely and accurate delivery specifications and description of the cargo, including, but not limited to, dimensions, weight, any special handling or security requirements, and employing reasonable security protocols to reduce the risk of cargo theft.
4. FREIGHT CARRIAGE. BROKER warrants that it has entered into, or will enter into, bilateral written contracts with each carrier it engages to perform the transportation services required by this Agreement. BROKER further warrants that those contracts comply with all applicable federal, state and local laws and regulations and shall include, among other things, the substance of the following terms:
A. 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.
B. 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 Agreement, including cargo loss and damage, theft, delay, damage to property, and personal injury or death.
C. Carrier shall agree that its liability for cargo loss or damage shall be determined by 49 USC §14706 (the “Carmack Amendment”). Exclusions in carrier’s insurance coverage shall not exonerate carrier from this liability. No limitation of carrier’s liability shall apply, unless BROKER first obtains the express written consent of SHIPPER.
D. 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
- Auto Liability – $750,000
- Cargo Liability – $100,000
- Worker’s Compensation – as required by state law.
BROKER shall verify that each carrier it utilizes in the performance of this Agreement has insurance coverage as defined above.
E. Carrier shall agree that the provisions contained in 49 CFR 370.1 et seq. shall govern the processing of claims (except for exempt commodities which shall be subject to the terms of (Appendix E), for loss, damage, injury or delay to property and the processing of salvage.
F. BROKER and carrier agree that BROKER is the sole party responsible for payment of carrier’s charges. Failure of BROKER to collect payment from its customer shall not exonerate BROKER of its obligation to pay carrier. BROKER agrees to pay carrier’s undisputed invoice within 25 days of receipt of the bill of lading or proof of delivery, provided carrier is not in default under the terms of this Agreement. If BROKER has not paid carrier’s undisputed invoice as agreed, and carrier has complied with the terms of this Agreement, carrier may seek payment from the SHIPPER or other party responsible for payment after giving BROKER 30 (business days) advance written notice, except that carrier shall not seek payment from SHIPPER or any other Party responsible for payment if SHIPPER or such other Party can prove payment to BROKER.
G. Carrier agrees that at no time during the term of this contract with BROKER, shall it have an “Unsatisfactory” safety rating as determined by the Federal Motor Carrier Safety Administration (FMCSA), and that it has no knowledge of any threatened or pending interventions by FMCSA; if carrier receives an “Unsatisfactory” safety rating, or a rating has changed from “Satisfactory” to “Conditional” or if any future safety rating has otherwise been downgraded by FMCSA, it shall immediately notify BROKER and shall not transport any freight hereunder without BROKER’s prior written consent. The provisions of this paragraph are intended to include safety rating designations which may replace those above, which are subject to change by FMCSA at any time.
H. Carrier shall agree that the terms and conditions of its contract with BROKER shall apply on all shipments it handles for BROKER. Any tariff terms published by carrier which are inconsistent with the contract shall be subordinate to the terms of the contract.
I. 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.
J. Carrier will not re-broker, assign, or subcontract the shipments without prior written consent of BROKER. If Carrier breaches this provision, BROKER shall have the right of paying the monies it owes its contracted Carrier, directly to the delivering carrier in lieu of payments to its contracted Carrier. Upon BROKER’s payment to delivering carrier, the contracted Carrier shall not be released from any liability to BROKER under this Agreement, or from liability under 49 U.S.C. §14916.
K. On behalf of the SHIPPER, consignee and broker interests, to the extent that any shipments subject to this Agreement are transported within the State of California, CARRIER warrants that they are in compliance with all California Air Resources Board regulations. Carrier shall be liable to BROKER and SHIPPER for any penalties, or any other liability, imposed on or assumed by BROKER or SHIPPER because of Carrier’s use of non-compliant equipment.
5. RECEIPTS AND BILLS OF LADING. If requested by SHIPPER, BROKER agrees to provide SHIPPER with proof of acceptance and delivery of shipments in the form of a signed Bill of Lading or Proof of Delivery via US Mail, courier, or electronically by fax or email. 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. In the event a signed Bill of Lading or Proof of Delivery is not available, Shipper shall accept written confirmation from the receiver that the shipment was received and any overages, shortages, or damages will be noted.
6. PAYMENTS. BROKER shall invoice SHIPPER for its services in accordance with the rates, charges and provisions, if attached, or any written supplements or revisions that are mutually agreed to between the PARTIES in writing, otherwise, 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 non-payment of its freight charges. BROKER shall indemnify SHIPPER from and against any claim for freight payment brought by carrier against SHIPPER when SHIPPER has paid BROKER and BROKER has failed to pay carrier.
A. 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 (or commence arbitration) 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, unless BROKER is notified by SHIPPER of the increased value prior to shipment pickup and with reasonable advance notice to allow BROKER 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 or processing of claims with the carrier. If payment of a 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 contracted 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 offering 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.
B. All Other Claims: The Parties shall notify each other of all known material details of any claims 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 actions, 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.
8. 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:
A. Comprehensive general liability insurance $1,000,000 covering bodily injury and property damage
B. Contingent Cargo Insurance $100,000
C. Errors and Omissions Insurance $250,000
D. Contingent Auto Liability or Hired and Non-owned Auto Liability Insurance $1,000,000 BROKER shall submit to SHIPPER a certificate of insurance as evidence of such coverage and which names SHIPPER as “Certificate Holder”.
9. 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 at least $75,000 or as otherwise required by the FMCSA and furnish SHIPPER with proof upon request.
10. HAZARDOUS MATERIALS. SHIPPER 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 directly out of SHIPPER’s failure to comply with applicable hazardous materials laws and regulations.
11. HOMELAND SECURITY. As applicable to each, respectively, BROKER and SHIPPER shall comply with federal, state and local Homeland Security related laws and regulations.
12. “CURE”/DEFAULT. A. 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 for a cause other than those listed in Section 12.B may terminate this Agreement on 10 (ten) days prior written notice to the other Party. SHIPPER shall be responsible to pay BROKER for any services performed prior to the termination of this Agreement, including shipments scheduled and in transit on the date of termination, if ultimately delivered and properly invoiced to SHIPPER.
B. Default: The following actions, in addition to any other material breach described elsewhere in this Agreement, shall each constitute a material breach of this Agreement:
1. Either Party files a voluntary petition under Chapter 7 or 11 of the U.S. Bankruptcy Code, or any equivalent state law; or such a petition is filed against the Party, under federal or state law which is not dismissed within 60 days.
2. BROKER’s license(s) required for BROKER to perform its obligations under this Agreement is revoked, canceled, suspended, or discontinued for any reason.
3. In the event of the occurrence of any breach(es) listed in this Section 12.B, the nonbreaching party may terminate this Agreement effective immediately upon written notice to the breaching party.
13. INDEMNIFICATION. Subject to the monetary insurance limits in Section 8, BROKER and SHIPPER shall defend, indemnify and hold each other harmless from and against any claims actions or damages, including, but not limited to cargo loss, damage, or delay and payment of rates 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 such other Party’s own negligence or intentional acts. Failure of insurance coverage, for any reason, shall not exonerate either party from its indemnity obligations hereunder. The obligation to defend shall include all costs of defense as they accrue.
14. 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.
15. 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.
16. 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.
17. 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.
18. 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 made in writing and shall be delivered via fax with machine imprint on paper acknowledging successful transmission or email with confirmed receipt), and shall be effective when so delivered to the address specified on page one for customer and below for Vestra Logistics.
Attn: Chase Smith
15800 Birmingham Hwy, Bldg 500, Milton, GA 30004
19. 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 such inability to perform.
20. 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 Georgia. Venue shall lie for any litigated or arbitrated resolution in Forsyth County, Georgia.
21. DISPUTE RESOLUTION.
In the event of a dispute, either Party may declare a “negotiation period” by giving written notice to the other Party. Upon the issuance of such notice, each Party shall appoint a representative to negotiate a settlement of the issue. If the appointed representatives cannot reach agreement on a settlement within 30 days of the date of such declaration, the Parties shall resolve the dispute through arbitration. In the event a dispute arises out of this Agreement and cannot be settled in the “negotiation period,” the Parties’ sole recourse shall be arbitration within two years from the date of the alleged loss. Proceedings shall be conducted under the rules of the Transportation Arbitration and Mediation PLLC (TAM), the American Arbitration Association (AAA) or Transportation ADR Council, Inc. (ADR) at the discretion of the party filing the complaint. Upon agreement of the Parties, arbitration proceedings may be conducted outside of the administrative control of the TAM, AAA or ADR; arbitration proceedings may be conducted by tele-conference or video-conference. The decision of the arbitrators shall be binding and final and the award of the arbitrator may be entered in a court of competent jurisdiction. The prevailing party shall be entitled to recovery of costs, expenses and reasonable attorney fees as well those incurred in any action for appeal or injunctive relief, or in the event further legal action is taken to enforce the award of arbitrators. The arbitration provisions of this paragraph shall not apply to enforcement of the award of arbitration.
22. CONFIDENTIALITY. Other than as required to comply with law or legal process requiring disclosure, the Parties agree to the following:
A. 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 or other brokers to comply with this confidentiality clause.
B. 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.
C. In the event of violation of this Confidentiality paragraph, the Parties 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 non-prevailing Party shall be liable for all costs and expenses incurred, including but not limited to reasonable attorney’s fees.
23. 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.
Vestra Accessorial Schedule
- TONU (Truck Order Not Used) $250.00
- Stops in transit
- $75.00 for the 1st stop
- $100.00 for the 2nd stop
- $150.00 for 3rd and each stop there after
- Detention w/ Power 2hrs free $75.00 per hour after there
- Detention w/o Power 2hrs free $50.00 per hour after there
- Holiday pickup/ delivery $200.00
- Re-consignment in transit $35.00
- Layover $250.00 Daily for dry and $350.00 Reefer
- Pallets and Lumpers are reimbursed with receipt
- Weekend Shipping/Delivery $150.00
** This schedule will apply unless an accessorial schedule is provided **
Customer hereby affirms that it has read and agreed to this agreement, fully understand its content, and intentionally and voluntarily accept its terms. Terms and conditions are subject to change without notice. To ensure that all customers fully understand the platform, a 30-minute training is required for all user credentials to be issued.