LUMOS SOLAR BROKER – CARRIER TERMS AND CONDITIONS
These Terms and Conditions (“Terms and Conditions” or “Agreement”) are applicable to the
services performed by a motor carrier (“CARRIER”) and undertaken on behalf of Lumos
Solar Brokerage. (hereafter “BROKER”). These Terms and Conditions supersede all
previous conditions of transportation and other prior statements concerning the rates and
conditions of CARRIER’S services. These Terms and Conditions control in the event of any
discrepancy or conflict between these Terms and Conditions and those of CARRIER, unless
changes have been made by obtaining prior written approval by an Officer of CARRIER.
CARRIER reserves the right from time to time to modify, amend or supplement these Terms
and Conditions without notice. Copies of CARRIER’s most recent terms and conditions are
available upon request. CARRIER’s terms and conditions in effect on the date of shipment
shall apply. BROKER and CARRIER are collectively, the “Parties”.
Pursuant to the terms of these Terms and Conditions, BROKER, a duly licensed and
authorized load or freight broker of goods, agrees to engage CARRIER’s services by the
provision of a Broker Tender to carry third party goods. By accepting a Broker Tender,
CARRIER accepts all terms set forth herein. BROKER is not obligated to request services
from CARRIER and CARRIER is not obligated to accept requests for services, but this
Agreement shall control and govern all such services tendered by BROKER and accepted
by CARRIER.
CARRIER REPRESENTS AND WARRANTS THAT IT:
A. Is a duly Registered or authorized 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 subject to the terms of
this Agreement;
C. Makes the representations herein for the purpose of inducing BROKER to enter into this
Agreement.
D. 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 nor CARRIER’s status as a motor carrier. BROKER is not a motor carrier
and assumes no motor carrier responsibility for cargo loss and damage.
E. Will not re-broker, co-broker, subcontract, assign, interline, or transfer the transportation
of shipments hereunder to any other persons or entity conducting business under a different
operating authority, without prior written consent of BROKER. If CARRIER breaches this
provision, among all other remedies (whether at equity or in law), BROKER shall have the
right of paying the monies it owes CARRIER directly to the delivering carrier, in lieu of
payment to CARRIER. Upon BROKER’s payment to delivering carrier, CARRIER shall not
be released from any liability to BROKER under this Agreement or otherwise, including any
claims under MAP-21 (49 U.S.C. § 13901 et seq.). In addition to the indemnity obligation in
Par 1.H, CARRIER will be liable for consequential damages for violation of this provision.
F. (i) Is in, and shall maintain compliance during the term of this Agreement, with all
applicable federal, state, provincial 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 Haz-Mat qualified drivers), as defined in 49 C.F.R. §172.800, §173, and §397
et seq. and/or of Dangerous Goods (as defined by and pursuant to applicable Canadian
law) to the extent that any shipments hereunder constitute Hazardous Materials or
Dangerous Goods as the case may be; owner/operator lease regulations; loading and
securement of freight regulations; customs regulations; implementation and maintenance of
driver safety regulations including, but not limited to, hiring, controlled substances and
alcohol testing, and hours of service regulations; sanitation, temperature, and contamination
requirements for transporting food, perishable, and other products, including without
limitation the Food Safety Modernization Act, the Sanitary Food Transportation Act of 2005
and the FDA’s Final Rule pertaining to Sanitary Transportation of Human and Animal Food,
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; all applicable
insurance laws and regulations including but not limited to workers’ compensation.
CARRIER agrees to provide proof of compliance upon request.
(ii) Is solely responsible for any and all management, governing, discipline, direction and
control of its employees, owner/operators, and equipment with respect to operating within
all applicable federal, and state and provincial legal and regulatory requirements to ensure
the safe operation of CARRIERS vehicles, drivers and facilities. CARRIER and BROKER
agree that safe and legal operation of the CARRIER and its drivers shall completely and
without question govern and supersede any service requests, demands, preferences,
instructions, and information from BROKER or BROKER’s customer with respect to any
shipment at any time.
G. Will notify BROKER immediately if any 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,
canceled, suspended, or revoked for any reason.
H. SHALL DEFEND, INDEMNIFY, AND HOLD BROKER, ITS AFFILIATES, ITS
CUSTOMER, THE CONSIGNOR, THE CONSIGNEE, AND THE SHIPPER HARMLESS
FROM ANY CLAIMS, ACTIONS OR DAMAGES, ARISING OUT OF ITS PERFORMANCE
UNDER THIS AGREEMENT, INCLUDING CARGO LOSS AND DAMAGE, THEFT, DELAY,
DAMAGE TO PROPERTY, AND PERSONAL INJURY OR DEATH. THESE DEFENSE,
INDEMNIFICATION, AND HOLD HARMLESS REQUIREMENTS SHALL APPLY WHERE
CARRIER ITS AFFILIATES, ITS CUSTOMER, THE CONSIGNOR, THE CONSIGNEE,
AND THE SHIPPER ARE SOLELY NEGLIGENT OR AT FAULT; THESE DEFENSE,
INDEMNIFICATION, AND HOLD HARMLESS REQUIREMENTS SHALL ALSO APPLY
WHERE CARRIER IS CONCURRENTLY NEGLIGENT OR AT FAULT WITH BROKER,
BROKER’S CUSTOMER, THE SHIPPER, THE CONSIGNOR, THE CONSIGNEE,
AND/OR THIRD PARTIES, WHICH INCLUDES INSTANCES WHERE BROKER IS
NEGLIGENT OR AT FAULT. The obligation to defend shall include all attorney fees, expert
witness fees, and all other costs of defense as they accrue. Broker’s Affiliates, shippers,
customers, and consignees are intended third party beneficiaries. Broker shall have the
unconditional right to settle claims
referenced in this indemnification paragraph and seek defense and/or indemnity from
CARRIER. Broker shall also have the right to select its own counsel. The aforementioned
obligations shall survive the expiration or earlier termination of this Agreement.
I. Does not have an “Unsatisfactory” or “Conditional” safety rating issued by the Federal
Motor Carrier Safety Administration (FMCSA), U.S. Department of Transportation, and/or
any relevant Canadian federal or provincial agency and will notify BROKER in writing
immediately if its safety rating is changed to “Unsatisfactory” or “Conditional”.
J. Authorizes BROKER to invoice CARRIER’s freight charges to shipper, consignee, or third
parties responsible for payment.
K. Has investigated, monitors, and agrees to conduct business hereunder based on the
credit-worthiness of BROKER and is granting BROKER credit terms accordingly.
L. To the extent any Goods are transported within the State of California, CARRIER
warrants that:
All 53 foot trailers, including both dry-van and refrigerated equipment it operates and the
Heavy-Duty Tractors that haul them within California under this Agreement are in
compliance with the California Air Resources Board (ARB) Heavy-Duty Vehicle Greenhouse
Gas (Tractor-Trailer GHG) Emission Reduction Regulations.
All refrigerated equipment it operates within California under this Agreement is in full
compliance with the California ARB Transportation Refrigeration Unit (TRU) Airborne Toxic
Control Measure (ATCM) in-use regulations.
All TRUs it operates within California are registered in ARB’s Equipment Registration
(ARBER) system; a copy of either the ARBER certification for each TRU or evidence of
CARRIER’s inclusion on ARBER’s 100 Percent Compliance List are attached to this
Agreement.
CARRIER shall be liable to BROKER or its customers for any penalties or any other liability
imposed on or assumed by BROKER or is customers due to penalties imposed by the State
of California because of CARRIER’s use of non-compliant equipment.
M. For each vehicle used to perform Services, CARRIER will have on-board an Electronic
Logging Device (“ELD”) from a provider listed on the FMCSA’s ELD Registry and will notify
BROKER if the ELD malfunctions during provision of Services. CARRIER agrees that all
shipments will be transported and delivered with reasonable dispatch, or as otherwise
agreed in writing. CARRIER shall not violate any law, rule, or regulation pertaining to
highway or motor vehicle safety in order to make timely delivery of a shipment. Nothing in
this Agreement shall be interpreted as requiring a driver to perform Services within a certain
time or to violate applicable Hours of Service Regulations. CARRIER certifies that it will
assign drivers to perform the Services only if such drivers have sufficient time remaining
under applicable Hours of Services Regulations to complete the duties assigned by
CARRIER.
N. CARRIER warrants that (1) it is not in violation of the California Labor Code and (2) is not
on the current list of Port Drayage Motor Carriers with Unsatisfied Court Judgments,
Tax-Assessments, or Tax Liens as may be applicable.
2. BROKER RESPONSIBILITIES:
A. SHIPMENTS, BILLING & RATES. BROKER shall inform CARRIER of (i) place of origin
and destination of all shipments; and (ii) if applicable, any special shipping and handling
instructions, special equipment requirements, or value of shipments in excess of the amount
specified in Par. 3C(vi) below, of which BROKER has been timely notified. BROKER will
advise CARRIER of the foregoing by means of a Broker Tender or other like means.
B. BROKER shall conduct all billing services to shippers. CARRIER shall invoice BROKER
for CARRIER’S charges, as mutually agreed in writing, by fax, or by electronic means,
contained in BROKER’S Load Confirmation Sheet(s) incorporated herein by this reference.
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 this reference. BROKER, its affiliates, and its customers shall have
the right to offset any claims or damages with pending amounts owed to CARRIER,
including amounts CARRIER assigns, delegates, or otherwise transfers to a third party,
including, but not limited to, factoring companies and other collections-service companies.
Such offset rights shall apply between BROKER, BROKER’S affiliates, and BROKER’S
customers so that any of the aforementioned entities may withhold money owed to
CARRIER and tender to another of the aforementioned entities; in which case, any claim by
CARRIER shall be made solely against the entity receiving the offset. If BROKER,
BROKER’S affiliates, or their customers exercise a right to offset, then CARRIER must
submit written notice of any disputes within 10 days of any such withholding or offsetting.
CARRIER’S written notice must contain sufficient information to investigate the offset.
CARRIER must submit such written dispute within 10 days of the date of the offset or
withholding. Any offset or withholding not disputed within 10 days is deemed to be correct.
In addition to BROKER’S right to offset against amounts BROKER owes CARRIER, in the
event CARRIER fails to pay damages, claims, or other expenses related CARRIER’S
services or claimed against CARRIER, (1) CARRIER shall be required to provide BROKER
advanced notice of all future transportation services that CARRIER provides to other
parties, until the damages, claims, or other expenses have been repaid, (2) CARRIER shall
be required to submit all of CARRIER’S (a) invoices for freight charges to BROKER with
supporting documentation so that BROKER may invoice CARRIER’S customer, until the
damages, claims, or other expenses have been repaid, (b) bank records, and (c) corporate
documents (3) CARRIER assigns to BROKER the right to collect payment for CARRIER’S
services or any other amounts owed to CARRIER (including, but not limited to, third party
liability claims for amounts owed to CARRIER) and apply the payment to the amounts
CARRIER owes BROKER (including attorney fees), and CARRIER will not submit any
invoices to other customers but shall submit all invoices to BROKER (4) CARRIER grants to
BROKER a lien in the charges for such services and amounts owed, and (5) CARRIER
shall hold harmless BROKER for enforcing these terms.
C. 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 this reference. Rates or charges, including but not limited to
stop-offs, detention, loading or unloading, fuel surcharges, or other accessorial charges,
tariff rates, released rates or values, or tariff rules or circulars, shall only be valid when their
terms are specifically agreed to in a writing signed by both Parties.
D. PAYMENT.
i. CARRIER agrees that BROKER is the party that will pay CARRIER for services provided
that are due, and for which CARRIER is in compliance with this agreement, that CARRIER
shall have no right or claim against any shipper or any consignor or consignee or any other
party other than the BROKER for any of its charges, and that, under no circumstance, will
CARRIER seek payment from, or bring suit against, the shipper, the consignee, or other
intermediary unless BROKER gives express written consent to CARRIER prior to any
attempt by CARRIER to seek payment from, or bring suit against, such party. CARRIER
shall be liable for any attorney fees or consequential damages incurred by BROKER,
BROKER’S Customer, the shipper, the consignor, or the consignee as a result of
CARRIER’S breach of this provision of this Agreement.
ii. CARRIER hereby authorizes BROKER to deduct from any amount due to CARRIER
pursuant to this Agreement or any other agreement between the parties, any amount which
may be payable as a result of cargo damage or other claim by CARRIER to BROKER,
BROKER’S customer, or the shipper, and any amount for which BROKER may become
liable to third parties by reason of CARRIER’S actions or omission, performance, or failure
to perform CARRIER’S obligations under this Agreement, BROKER may withhold from any
payment due, without liability for interest because of such withholding, an amount sufficient
to cover such claim.
E. BOND. BROKER shall maintain a surety bond /trust fund as required by the Federal
Motor Carrier Safety Administration (FMCSA) in the form and amount required by that
agency’s regulations.
F. BROKER will notify CARRIER immediately if any 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. BROKER’s responsibility is limited to arranging for, but not actually performing,
transportation of a shipper’s freight.
3. CARRIER RESPONSIBILITIES:
A. COMPLIANCE WITH LAWS. CARRIER must provide Services in a safe and prudent
manner and in compliance with all applicable federal, provincial, state and local statutes,
ordinances, rules, and regulations, including, but not limited to those pertaining to the
proper qualification, screening, and licensing of drivers; hours of service; maintenance and
safe operation
of equipment; transportation and handling of Hazard Materials (49 C.F.R. §§ 172.800, 173
and 397, et seq.) (“HAZMAT”) and any applicable Canadian laws concerning the haulage of
Dangerous Goods; security; owner-operator leases; loading and securement of freight;
controlled substance and alcohol use testing; insurance and workers’ compensation
requirements; the safe and secure transportation of food that will ultimately be consumed by
humans or animals, including the Food Safety Modernization Act (21 U.S.C. § 2201, et
seq.), the Food, Drug and Cosmetic Act (21 U.S.C. § 341, et seq.) (“FD&C Act”), the
Sanitary Food Transportation Act (49 USC 5701 et seq.), and the U.S. Food and Drug
Administration’s Final Rule on the Sanitary Transportation of Human and Animal Food (21
C.F.R. § 1.900 et seq.), and applicable Canadian statutes and regulations (collectively the
“Food Safety Laws”) as applicable. CARRIER agrees that food that has been transported or
offered for transport under conditions that are not in compliance with the shipper’s
instructions as provided to CARRIER by the shipper, through BROKER or otherwise, may
be considered “adulterated” within the meaning of the Federal Food, Drug and Cosmetic
Act, 21 U.S.C. §§ 342(a)(i)(4), 342(i). CARRIER understands that adulterated shipments
may be refused by the consignee or receiver upon their tender for delivery. CARRIER must
comply with its legal obligations concerning the safe and secure transportation of of goods
and CARRIER will notify BROKER promptly by telephone of any accident, theft or other
occurrence that impairs the safety of, or delays the delivery of, shipments subject to this
Agreement.
B. Regardless of the place of origin of a shipment, the provisions in sub-sections 3C and 3D
below shall govern carrier liability for freight loss, damage or delay. In the event there is a
conflict between those provisions and any carriage terms and conditions deemed applicable
by the laws of a place of origin, the former shall govern to the extent of any such
inconsistency as permitted by law.
C. BILLS OF LADING. CARRIER shall issue a bill of lading, in compliance with governing
law(s) at the place of origin, including without limitation 49 C.F.R. §373.101 (and any
amendments thereto) to the extent applicable, 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 and credit terms, released
rates or released value and/or any bill of lading terms as may be deemed applicable under
applicable law) inconsistent with the terms of this Agreement shall be ineffective. 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.
D. LOSS & DAMAGE CLAIMS.
(i) Except as otherwise provided herein, CARRIER shall comply with 49 C.F.R. §370.1 et
seq. and any amendments and/or any other applicable regulations as may be applicable
adopted by the Federal Motor Carrier Safety Administration, U.S. Department of
Transportation, or any applicable federal, provincial, or state regulatory agency, for
processing all loss and damage claims and salvage. CARRIER agrees that food that has
been transported or
offered for transport under conditions that are not in compliance with Shipper’s or
BROKER’S instructions, as provided to CARRIER by Shipper or BROKER, will be
presumed to be “adulterated” subject to the application of and within the meaning of the
Federal Food, Drug and Cosmetic Act, 21 U.S.C. § 342 (i). CARRIER understands and
agrees that adulterated shipments may be refused by the consignee or receiver, at
destination without diminishing or affecting CARRIER’S liability in the event of a cargo
claim. CARRIER shall not sell, salvage or attempt to sell or salvage any goods without the
BROKER’s express written permission; and
(ii) Regardless of the place of origin of a shipment (whether in the United States or Canada)
CARRIER’s liability for any cargo damage, loss, or theft from any cause shall be for the full
invoice value of goods affected as determined at the time and place of destination as
prescribed by the Carmack Amendment, 49 U.S.C. §14706. Where the Carmack
Amendment is not otherwise applicable by its own terms, the same is incorporated by
reference.
(iii) Special Damages: CARRIER’s indemnification liability for freight loss and damage
claims shall include legal fees which shall constitute special damages, the risk of which is
expressly assumed by CARRIER, and which shall not be limited by any liability of CARRIER
herein. To the extent that any provision herein (including, but not limited to, this provision
allowing BROKER, BROKER’s Affiliates, the shipper, and BROKER’s customers to recover
attorney fees) conflicts with the Carmack Amendment, 49, U.S.C. §14706, or Part (b),
Subtitle IV, of Title 49 U.S.C., or their successor statutes and regulations, CARRIER
expressly waives the protections of the Carmack Amendment and Part (b), Subtitle IV, of
Title 49 U.S.C.
(iv) Claims for loss or damage to freight must be filed in writing on CARRIER within 9
months from date of delivery, or scheduled date of delivery for non-delivered shipments.
Where there is no there is no scheduled date for delivery claim to be filed in writing within 9
months after a reasonable time has elapsed for delivery.
(v) Notwithstanding the terms of 49 CFR 370.9 as may be applicable, CARRIER shall pay,
decline or make settlement offer in writing on all cargo loss or damage claims within thirty
days of receipt of the claim. Failure of CARRIER to pay, decline or offer settlement within
this thirty day period shall be deemed admission by CARRIER of full liability for the amount
claimed and a material breach of this Agreement.
E. INSURANCE. CARRIER shall furnish BROKER with Certificate(s) of Insurance, or
insurance policies subject to the following minimum limits: General liability $1,000,000.00;
motor vehicle (including hired and non-owned vehicles) $1,000,000.00, ($5,000,000,
including environmental damages due to release or discharge of hazardous substances, if
transporting dangerous goods or hazardous materials); cargo damage/loss, $250,000.00;
workers’ compensation with limits required by law. Except for the higher coverage limits that
may be specified above, the insurance policies shall comply with minimum requirements of
the Federal Motor Carrier Safety Administration and any other applicable regulatory state or
provincial agency. Nothing in this Agreement shall be construed to avoid or limit CARRIER’s
liability due to any policy limits or exclusion or deductible in any insurance policy.
F. ASSIGNMENT OF RIGHTS. CARRIER automatically assigns to BROKER all its rights to
collect freight charges from Shipper or any responsible third party.
G. CARRIER assumes full responsibility and liability for payment of the following items: All
applicable federal, state, provincial and local payroll taxes, taxes for unemployment
insurance, old age pensions, workers’ compensation, social security, with respect to
persons engaged in the performance of its transportation services hereunder. BROKER
shall not be liable for any of the payroll-related tax obligations specified above and
CARRIER shall indemnify, defend, and hold BROKER harmless from any claim or liability
imposed or asserted against BROKER for any such obligations.
H. Perishables, food products, and produce.
i. Carrier shall set the temperature setting to continuous (not on/off) for all reefer loads,
unless otherwise directed by Broker or Shipper in writing. Carrier shall comply with all of
Broker’s and Shipper’s instructions as to temperature and transportation requirements,
including, but not limited to continuous temperature setting. In the event there is a
discrepancy between Broker’s and Shipper’s instructions (for perishables, food products,
produce, or any other cargo), Carrier shall notify Broker immediately and shall not transport
the property until Broker has advised Carrier of the appropriate instructions. In the event
Carrier fails to comply with the terms of the Section and the cargo is lost, damaged, or
otherwise rejected for any reason, Carrier shall be liable for the full value of the load.
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 Broker or the shipper
for failure to do so. Carrier shall have a temperature recorder in the trailer and logs of
temperature during the entirety of transportation
iii. Carrier shall pulp all product during loading and ensure the temperature matches the bill
of lading and/or rate confirmation. Any discrepancy must be reported to Broker immediately
and Broker must approve transportation of shipment prior to Carrier transporting the cargo.
iv. Carrier will verify that the equipment is suitable for the transportation of produce, food,
dairy & milk products for human or animal consumption, as well as for other perishables,
and will comply with all applicable laws and regulations, including maintenance of permits
and record keeping requirements, for food, dairy & milk transporters. Carrier warrants that
the Carrier will inspect or hire a service representative to inspect a vehicle’s refrigeration or
heating unit as necessary to prevent unsanitary conditions and reliable operations of
equipment. Carrier warrants that they shall maintain a record of each inspection of
refrigeration or heating unit and retain the records of the inspection for a least one year.
Copies of these records must be provided upon request to the Carrier’s insurance company
and Broker. Each unit will maintain temperature data loggers in good working condition and
provide the temperature readings upon request.
v. Carrier will inspect all empty equipment before loading to determine whether it is in
apparent good condition (i.e., it appears to be sound, roadworthy, clean, odor-free, dry,
leakproof, and free of contamination or infestation) to protect the cargo being transported,
will reject any equipment that is not in apparent good condition, clean, and disinfected, and
will immediately (no later than 60 minutes) inform Broker of its rejection. Carrier
acknowledges that if Carrier fails to inspect the equipment when it has the opportunity to do
so, Carrier assumes liability related to such failure, for damage or loss to product cargo
transported in such equipment.
I. Carriers providing bulk service in cargo tanks or tank vehicles shall only use tanks, hoses,
and pumps that are clean, dry, odor free, and certified to be in such condition by
presentation of a wash certificate when the tank arrives for loading. Broker, shipper, or the
consignor may utilize various inspection techniques prior to loading and reject the trailer at
the Carrier’s expense if it fails to be clean, dry, odor free, or is unaccompanied with a wash
certificate. After loading, Broker or shipper may retain a product sample from the trailer for a
contamination analysis. At any time, upon Broker’s or shipper’s request, Carrier shall
present to Broker or shipper the prior 3 products loaded in the trailer and the wash methods
used to clean it.
J. U.S. Government Shipments. If the Carrier is providing services under this Agreement
pursuant to any bill of lading or shipment procured by a United States Government entity,
agency, or unit, including but not limited to the Department of Defense or any branch of the
U.S. Military, the following additional provisions shall apply:
i. Carrier certifies that they are a Military Surface Deployment and Distribution Command
(SDDC) approved Transportation Service Provider (TSP). Carrier will perform all necessary
steps to maintain its status as an SDDC approved TSP during the pendency of this
Agreement, and is required to inform Broker, in writing, of any termination or lapse of their
status as an approved TSP, or circumstances that jeopardize their status as an approved
TSP. Carrier agrees to comply with and abide by all regulations governing the provision of
transportation services to the U.S. Government, including but not limited to the Military
Freight Traffic Unified Rules Publication-1 (MFTURP-1), Defense Transportation Regulation
(DTR), and the U.S. Federal Bill of Lading Act (BL). Satisfaction of this provision is a
precondition to this Agreement and failure thereof will serve as grounds for Broker to cancel
this Agreement and/or seek any and all recourse available to it against Carrier.
ii. Wage and Hour
a. General: Carrier acknowledges and agrees that this Agreement may be subject to
various special wage and hour requirements with respect to prevailing wages, prevailing
fringe benefits and overtime compensation required by the U.S. Government for its
contracts. Carrier expressly agrees that it is Carrier’s responsibility to ensure that it is in
compliance with these laws and applicable regulations. All such laws and their regulatory
provisions are incorporated herein by reference and are made applicable to this Agreement.
b. SCA Requirements: To the extent Carrier is awarded or performs work procured by the
U.S. Government pursuant to this Agreement (including transportation secured by a Bill of
Lading) in excess of $2,500, it is expressly subject to the Service Contract Act, all pertinent
portions of which are expressly incorporated herein. Pursuant to the Service Contract Act,
Carrier agrees as follows:
i. Carrier is required to pay its “service employees” (as defined in the SCA) performing
services no less than the prevailing wages and fringe benefits outlined in the applicable
Wage Determination, which shall
apply by operation of law to all activities of the Carrier. Carrier is responsible for securing
the prevailing wage applicable to its service employees, and for paying those prevailing
wages and fringe benefits.
ii. Carrier acknowledges and agrees to abide by the SCA accounting and record keeping
requirements.
iii. Carrier further acknowledges and agrees to abide by the notice requirements under the
SCA, and shall notify each service employee of the minimum monetary wage and any fringe
benefits required to be paid, or shall post the wage determination attached to this contract.
The poster provided by the Department of Labor (Publication WH 1313) shall be posted in a
prominent and accessible place at the work site. Failure to comply with this requirement is a
violation of 41 U.S.C. 6703 and of this Agreement.
iv. Carrier further acknowledges and agrees to abide by the safety and health protection
requirements under the SCA, and to ensure that no part of the services covered under the
SCA will be performed in buildings, surroundings, or under working conditions which are
unsanitary, hazardous, or dangerous to the health and safety of service employees. Carrier
shall comply with the safety and health standards applied under 29 CFR Part 1925.
c. Minimum Wage for Carrier Employees: Carrier shall not pay any person performing work
under this contract (regardless of whether the person is a service employee) less than the
minimum wage specified by section 6(a)(1) of the Fair Labor Standards Act of 1938.
Nothing in this clause shall relieve Carrier of any other obligation under law or contract for
payment of a higher wage to any employee.
d. Paid Sick Leave: Carrier acknowledges and agrees to abide by the provisions of
Executive Order 13706, requiring contractors performing services subject to the Service
Contract Act to provide subject service employees with paid sick leave.
e. Cooperation: Carrier agrees to cooperate with the any investigation or inquiry with
respect to compliance with the wage and hour laws. Broker shall have the right to audit
Carrier, demand written documentation and records, interview workers, and otherwise take
any and all steps necessary to determine compliance. Carrier shall timely provide all
information requested and shall take any corrective action required by either the
Government or by the Broker.
f. State Laws: Sometimes state and local wage and hour laws may require payments that
are in excess of federal law, depending on the jurisdiction and the contract terms. Carrier
agrees to perform its own independent investigation of state and local wage and hour laws
and to adopt compensation policies which are in conformance therewith. Carrier further
agrees to comply with all state wage and employments laws.
g. Wage and Hour Disputes: Carrier agrees to comply with all federal, state, and local wage
and hour laws, regulations, orders, and requirements, and to do so at its own expense and
cost. Carrier acknowledges this is its own exclusive responsibility, and Carrier understands
that this is a condition precedent for the
award of this Agreement and any work awarded pursuant to this Agreement.
Noncompliance with any of the requirements of wage and hour laws, regulations orders or
procedures shall not be a basis for any Carrier claim for monies due from the Broker.
h. Breach of Agreement: Carrier agrees to comply with the requirements of any of these
laws, to the extent applicable, and to pay the prevailing or minimum wages, fringe benefits,
and any overtime or other compensation due its workers. Failure to comply with any
material provision of this clause shall be a basis for withholding further payment to Carrier.
Compliance is a condition precedent for payment of any of Carrier’s invoices. Failure to
comply is a breach of this Agreement and shall subject Carrier to liability for any monetary
deficiencies not withheld or offset.
iii. If applicable, Carrier agrees to abide by any and all immigration laws, including but not
limited to the Federal E-Verify requirements.
iv. If applicable, Carrier agrees to abide by Executive Order 11246, as amended and shall
not discriminate in employment decisions on the basis of race, color, religion, sex, sexual
orientation, gender identity or national origin, and to take affirmative action to ensure that
equal opportunity is provided in all aspects of their employment.
v. If applicable, Carrier acknowledges and agrees to abide by the anti-discrimination and
any applicable affirmative action requirements set out in the Vietnam Era Veterans’
Readjustment Assistance Act (VEVRA).
vi. If applicable, Carrier acknowledges and agrees to abide by the requirements of Section
503 of the Rehabilitation Act of 1973, and shall not discriminate against qualified individuals
on the basis of disability, and shall employ an affirmative action plan to promote the
employment of qualified individuals with disabilities.
vii. If applicable, in accordance with 15 USC 637, Carrier shall negotiate or otherwise
engage socially and economically disadvantaged small business vendors for construction
work, services, or the manufacture, supply, assembly of such articles, equipment, supplies,
materials, or parts thereof, or servicing or processing in connection therewith, or such
management services as may be necessary to enable the Administration to perform such
contracts. Provided, however, that Carrier shall perform transportation of all shipments
under Carrier’s motor carrier authority and shall not broker nor engage other motor carriers
or brokers for such shipments.
viii. Carrier and its employees or agents are prohibited from offering or giving a gratuity
(including an entertainment or gift) to an officer, official, or employee of the U.S.
Government with the intent to obtain favorable treatment.
ix. Carrier agrees to comply with the requirements of the Anti-Kickback Act of 1986 (41
U.S.C. Chapter 87, Kickbacks). In transportation contracts with the government
(including those moved by Tender and BOL) in excess of $150,000, the Carrier shall have in
place and follow reasonable procedures designed to prevent and detect violations of the
Kickbacks Statute in its own operations and direct business relationships (e.g., company
ethics rules prohibiting kickbacks by employees, agents, or subcontractors; education
programs for new employees and subcontractors, explaining policies about kickbacks,
related company procedures and the consequences of detection; procurement procedures
to minimize the opportunity for kickbacks; audit procedures designed to detect kickbacks;
periodic surveys of subcontractors to elicit information about kickbacks; procedures to
report kickbacks to law enforcement officials; annual declarations by employees of gifts or
gratuities received from subcontractors; annual employee declarations that they have
violated no company ethics rules; personnel practices that document unethical or illegal
behavior and make such information available to prospective employers.
x. Carrier will comply with 31 USC 1352l, which prohibits a recipient of a Federal contract
from using “appropriated funds” to pay any person for influencing or attempting to influence
an officer or employee of any agency, a Member of Congress, an officer or employee of
Congress, or an employee of a Member of Congress in connection with any covered
Federal actions. 31 USC 1352 also requires offerors to furnish a declaration consisting of
both a certification and a disclosure, with periodic updates of the disclosure after contract
award.
xi. The Carrier shall inform its employees in writing, in the predominant native language of
the workforce, of contractor employee whistleblower rights and protections under 10 U.S.C.
2409. Carrier shall include the substance of this clause in all subcontracts, to the extent
permitted under this Agreement.
xii. Unless an exception is authorized, Carrier shall pass through any motor carrier
fuel-related surcharge adjustments to the person, corporation, or entity that directly bears
the cost of fuel for shipment(s) subject to Section N of this Agreement. Carrier has the sole
responsibility and duty to ensure the FS payment goes to the cost bearer.
xiii. INDEMNIFICATION: CARRIER AGREES TO INDEMNIFY AND HOLD BROKER
HARMLESS FROM ANY COSTS, EXPENSES, DAMAGES, PENALTIES, FINES, OR
OTHER CLAIMS THAT CARRIER OWES ITS EMPLOYEES BACK WAGES, FRINGE
BENEFITS, OVERTIME PAY, OR ANY OTHER WAGE AND HOUR CLAIM ARISING
UNDER OR RELATED TO WORK OR SERVICES PROVIDED PURSUANT TO THIS
AGREEMENT. CARRIER FURTHER AGREES TO INDEMNIFY AND HOLD BROKER
HARMLESS FROM ANY COSTS, EXPENSES, DAMAGES, PENALTIES, FINES OR
OTHER CLAIMS THAT CARRIER HAS FAILED TO COMPLY WITH ANY OF THE LAWS
AND/OR REGULATIONS APPLICABLE TO CARRIER IN BY VIRTUE OF ITS AWARD
AND/OR PERFORMANCE OF WORK PURSUANT TO A GOVERNMENT CONTRACT,
INCLUDING BUT NOT LIMITED TO
THOSE ENUMERATED HEREIN. IF BROKER INCURS ANY SUCH COST, CARRIER
AGREES THAT BROKER MAY WITHHOLD SUCH SUMS FROM ANY PAYMENT
OTHERWISE DUE CARRIER, AND CARRIER EXPRESSLY AGREES TO REIMBURSE
BROKER FOR SAID COST TO THE EXTENT THERE IS ANY DEFICIENCY IN THE
FUNDS TO MAKE PAYMENT.
4. MISCELLANEOUS:
A. INDEPENDENT CONTRACTOR. The relationship of the Parties to each other shall at all
times be that of independent contractors. None of the terms of this Agreement, or any act or
omission of either Party shall be construed for any purpose to express or imply a joint
venture, partnership, principal/agent, fiduciary, or employer/employee relationship between
the Parties. Each Party shall provide sole supervisions and shall have exclusive control over
the actions and operations of its employees, and agents used to perform its services
hereunder. Neither Party has any right to control, discipline or direct the performance of any
employees, or agents of the other Party. Neither Party shall represent to any party that it is
anything other than an independent contractor in its relationship to the other Party.
B. NON-EXCLUSIVE AGREEMENT. CARRIER and BROKER acknowledge and agree that
this contract 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) In respect of shipments originating from the United States, 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. DISPUTES.
Shipments Originating in the United States
In the event of a dispute arising out of this Agreement concerning a shipment originating in
the United States, the parties hereto agree that the same shall be subject to and governed
by the laws of the State of Colorado to the extent not preempted by applicable federal law.
Each of the parties hereby irrevocably submits to the exclusive jurisdiction of the courts of
any federal or state court sitting in Colorado, in any proceeding related to this Agreement,
irrevocably waives any objection to venue, and acknowledges that such venue is a
convenient forum.
Shipments Originating in Canada
In the event of a dispute arising out of this Agreement concerning a shipment originating in
Canada the parties hereto agree that the same shall be subject to and governed by the laws
of the Province of Quebec. Each of the parties hereby submit to the exclusive jurisdiction of
the courts of Quebec at Montreal, Quebec in any proceeding related to this Agreement,
irrevocably waives any objection to venue, and acknowledges that such venue is a
convenient forum.
E. NO BACK SOLICITATION.
(i) Carrier agrees that during the term of this Agreement and for a period of two (2) years
from the date of termination of this Agreement, that neither Carrier nor any employee,
officer, director, agent or otherwise of Carrier, will directly or indirectly solicit or accept traffic
from any consignor, consignee, or customer of BROKER where (a) the availability of such
shipments first became known to Carrier as a result of BROKER’ efforts; or (b) the
shipments of the consignor, consignee, or customer of the BROKER was first tendered to
the Carrier by BROKER.
(ii) In the event of breach of this provision, BROKER shall be entitled, for a period of twelve
(12) months following delivery of the last shipment transported by CARRIER under this
Agreement, to a commission of twenty percent (20%) of the gross transportation revenue
(as evidenced by freight bills) received by CARRIER for the transportation of said freight as
liquidated damages, and not as a penalty, representing the fair, equitable, and reasonable
estimate that the Parties agree will compensate BROKER for lost profit, loss of goodwill,
and related injuries, since actual damages would be uncertain and difficult to prove.
Additionally, BROKER may seek injunctive relief and in the event it is successful, CARRIER
shall be liable for all costs and expenses incurred by BROKER, including, but not limited to,
reasonable attorney’s fees.
F. 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 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.
(iii) CARRIER agrees that BROKER’s charges to its customers are confidential and need
not be disclosed to CARRIER. CARRIER specifically waives any rights it may have under
49 CFR §371.3. Except as may be required by law, the terms and conditions of this
Agreement and information pertaining to any Services will not be disclosed by either party
to any other persons or entities, except to the directors, officers, employees, authorized
contractors,
attorneys, and accountants of each party. This mutual obligation of confidentiality will
remain in effect during the terms of the Agreement and for a period of two years following
any termination.
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
(Pars 2.B and 2.C).
(i) Should CARRIER modify any provision of this agreement, whether in handwritten form,
modified text or otherwise, such amendment shall not be effective, unless BROKER has
initialed such change in close proximity thereto evidencing BROKER’s specific acceptance
of such modification.
(ii) Additionally, the provisions of this Agreement shall be deemed to supersede and shall
prevail over any conflicting terms set forth in any load confirmation, rate confirmation,
dispatch sheet or other document pertaining to this Agreement, whether any such document
was signed prior to, contemporaneously with or subsequent to execution of this Agreement.
H. 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, or by email with electronic receipt.
(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.
I. CONTRACT TERM. The term of this Agreement shall be one year from the date hereof
and thereafter it shall automatically be renewed for successive 1 year periods, unless
terminated, upon 15 day’s prior notice, with or without cause, by either Party at any time,
including the initial term. In the event of termination of this Agreement for any reason, the
Parties shall be obligated to complete performance of any work in progress in accordance
with the terms of this Agreement.
J. 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.
K. COUNTERPARTS. This Agreement may be executed in any number of counterparts
each of which shall be deemed to be a duplicate original hereof.
L. FORCE MAJEURE. In the event that either Party is prevented from performing its
obligations under this Agreement because of an occurrence beyond its control and arising
without its fault or negligence, including without limitation, war, riots, rebellion, acts of God,
acts of lawful authorities, fire, strikes, lockouts or other labor disputes, such failures to perform
(except for any payments due hereunder) shall be excused for the duration of such
occurrence. Economic hardships, including, but not limited to, recession and depression,
shall not constitute Force Majeure events.
M. CURRENCY. All references to “$” or dollars shall mean United States currency.
N. ENTIRE AGREEMENT. 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, whether any such document was signed prior to, contemporaneously with or
subsequent to execution of this Agreement. 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.
