Dray Alliance Broker Carrier Agreement
Updated September 5, 2023
Important changes in this update:
RECITALS
WHEREAS, CARRIER is a motor carrier of property duly authorized by all applicable state, provincial, or federal authorities to provide compensated contract carriage of property for shippers (sometimes herein "consignors") and receivers (sometimes herein "consignees") of regulated and non-regulated property, and provides transportation services and related services in the U.S. and, where applicable, Canada.
WHEREAS, BROKER is a transportation BROKER, duly authorized by the U.S. Department of Transportation (“DOT”), to arrange for the transportation of property by contract CARRIER.
WHEREAS, CARRIER recognizes the special, distinct, varying and continuing transportation needs of BROKER and its customer base of shippers and receivers, and in order to serve a portion of those transportation needs, CARRIER desires to provide contract carriage and related services to BROKER pursuant to the terms of this AGREEMENT.
AGREEMENT
1. EFFECTIVE DATE AND TERM. This AGREEMENT is to become effective on the date first written above, or to the extent applicable, upon the date which CARRIER and BROKER commenced doing business together, whichever is earlier, and shall remain in effect for a period of one year from such date, and shall automatically renew from year to year thereafter, subject to the right of either party to terminate this AGREEMENT at any time upon thirty (30) days advance written notice to the other party.
2. SCOPE OF AGREEMENT. This AGREEMENT shall govern any and all shipments tendered to CARRIER by BROKER (or upon BROKER'S instructions), and accepted by CARRIER, whether regulated or non-regulated property, in interstate, intrastate, or international transportation. Any rates, charges, liability limitations, classifications and/or rules in tariffs filed or published by CARRIER shall not apply to any such shipment unless they are specifically identified and incorporated herein. This Agreement does not bind either party to mutually exclusive services with each other. Both the BROKER and CARRIER understand and agree that BROKER will enter into similar agreements with other CARRIERs, and CARRIER may enter into similar agreements with other BROKERs and/or shippers.
3. CARRIER STATUS, RIGHTS AND RESPONSIBILITY. CARRIER will perform its Transportation Services for BROKER and its Customers as an independent contractor and will not for any purpose be the agent of BROKER or BROKER's Customers. CARRIER has exclusive control and direction of the work CARRIER performs pursuant to this Agreement. CARRIER will not contract or take other action in BROKER's name without BROKER's prior written consent. Nothing herein shall be construed as establishing an agency, partnership, joint venture, hiring or any form of employer-employee relationship between BROKER and CARRIER. Neither party shall be responsible for any debts, obligations or liabilities incurred by the other in performance of its business activities, except as expressly provided herein. Notwithstanding the foregoing provisions, BROKER shall be the agent for the CARRIER for the limited and express purpose of billing and collecting freight charges and fees from shippers and receivers, and CARRIER hereby appoints BROKER as its agent for such express and limited purpose. CARRIER agrees to assume full responsibility for the payment of all local, state, federal and intra- provincial payroll taxes, and contributions or taxes for unemployment insurance, worker's compensation insurance, pensions, and other social security or related protection with respect to the persons engaged by CARRIER for CARRIER's performance of the transportation and related services, and CARRIER shall indemnify, defend and hold BROKER, and its Customer harmless there from. CARRIER shall provide BROKER, with CARRIER's Federal Tax ID number and a copy of CARRIER's IRS Form W-9 prior to commencing any transportation or related services for BROKER, under this Agreement.
4. FREIGHT RATES. BROKER will be obligated to pay CARRIER for all Services rendered to BROKER at the rates agreed to between the parties and included in Load Confirmation for Drayage (“DRAYAGE”). Notwithstanding the foregoing, if one or more of the aforementioned Load Confirmation does not contain rates agreed to by the parties, then such mode of service will not apply to the Services hereunder unless and until the parties have agreed to rates in writing. The rates included in the aforementioned Exhibits are valid for the Term; provided, however, that if the parties agree in writing to extend the Term, CARRIER and BROKER may review and, subject to BROKER'S prior written consent, make adjustments to the rates for any such annual extensions of the Term.
5. PAYMENT OF RATES AND CHARGES.
a. BROKER shall pay CARRIER for the transportation of property under this AGREEMENT in accordance with the shipping rates as established herein or Rate Confirmation, said payment to be made not later than fifteen (15) days from receipt by BROKER of CARRIER'S uncontested invoice, bill of lading, and documentation of proof of delivery covering such transportation and services. In the event that after shipment of property under this AGREEMENT the party responsible for payment of freight charges and fees becomes bankrupt, or for any reason defaults on its obligation to pay BROKER for freight charges and fees which BROKER has already paid to CARRIER, CARRIER agrees that all its right, title and interest in such charges and fees shall be, and hereby are, transferred and assigned to BROKER for purposes of collection and recovery from the responsible party(s). CARRIER agrees that BROKER has the exclusive right to handle all billing and freight charges to BROKER'S customers for the transportation services provided herein, and, as such, CARRIER agrees to refrain from all collection efforts against the shipper, receiver, consignor, consignee, or BROKER'S customers. CARRIER shall furnish, if capabilities exist, transmissions of data elements ("EDI") on each shipment and receipt in the specified format, as well as similar data elements for automated payment of freight bills.
b. If there are any of the following accessorials, in/out times, the authorization number must be listed on the BOL/POD. These items must match the BROKER'S authorization information.
i. Driver count-signed BOL/POD & approved accessorial number, in/out times and count must match.
ii. Driver Detention/delay-signed BOL/POD & approved accessorial number: in/out times must match.
iii. Driver assist-signed BOL/POD & approved accessorial number, in/out times must match.
iv. Loading/unloading charge-signed BOL/POD & approved accessorial number, in/out times must match.
v. Equipment per diem/detention-signed approved accessorial number, in/outdates.
vi. Lumper charge - must have lumper receipt and approved accessorial number.
c. No detention or demurrage charges will apply or be paid to CARRIER unless a pickup/delivery appointment time has been scheduled and the driver has arrived on time.
d. BROKER shall be entitled to a two (2) hours Free Time without charge on each shipment, unless CARRIER notifies BROKER in writing otherwise prior to charging the accessorial.
e. CARRIER must notify BROKER 1⁄2 hour before accessorial charges start unless after hours, then next morning. Claims for accessorials must be supported by proper documentation.
f. Prior to incurring any excessive accessorial charges (any accessorial charge or the total accessorial charges which equal or exceed two hundred fifty dollars ($250), CARRIER shall be required to provide BROKER with additional, verbal or written notice of such Excessive Accessorial. Final accessorial charges, regardless of the amount, must be provided to CARRIER within one (1) business day after incurring such charges. Claims for accessorials must be supported by proper documentation.
g. BROKER will respond to CARRIER within 48 hours of receipt of accessorial total provided claims for accessorials were supported by proper documentation.
h. CARRIER will upload or E-mail BOL or POD within 10 business days to BROKER. CARRIER shall provide documents that state accurate shipment delivery and/or pick-up times, the BROKER issued authorization number and BROKER load number. Payment to CARRIER is contingent upon receiving accurate, legible paperwork. If paperwork is not received within 10 business days, and as a result the underlying customer or consignee will not accept and/or pay the claimed charges, CARRIER will not be reimbursed for such charges.
i. Any claim for underpayment of charges provided pursuant to this Agreement shall be presented by the party asserting the claim to the other party within thirty- (30) days of discovery of the claim.
6. CARRIER SERVICES/OBLIGATIONS.
a. CARRIER shall provide high quality, clean, safe empty equipment, establish adequate inspection procedures, and will promptly substitute equipment at no additional charge in the event that a customer rejects equipment on this basis.
b. CARRIER assumes the risk of loss or damage to any trailer, container, or chassis while under CARRIERS care, custody, or control. Where CARRIER either outgates or ingates, or both, from and to a rail ramp, the J1 issued by the railroad shall be prima facia evidence of the condition of the trailer, container, and/or chassis at the time of transfer of care, custody, and control to or from CARRIER.
c. BROKER requires scaling of all loads greater than 38,000 lbs. If CARRIER fails to scale an applicable load, whether or not CARRIER receives an overweight citation, and BROKER is required to rescale or rework the load to bring it to legal status, BROKER will either 1) chargeback to CARRIER the costs of the citation, rescaling, and/or rework or 2) allow CARRIER, upon CARRIER's request and at CARRIER's sole cost and expense, to bring the load to legal status.
d. CARRIER will comply with American Association of Railroad (“AAR”) rules regarding loading and blocking/bracing of intermodal carload shipments. CARRIER shall be liable for all freight loss or damage arising out of loading deficiencies performed by CARRIER.
e. CARRIER will comply with Uniform Intermodal Exchange and Facilities Access Agreement (“UIIA”) rules regarding loading and blocking/bracing of intermodal carload shipments. CARRIER shall be liable for all freight loss or damage arising out of loading deficiencies performed by CARRIER.
f. CARRIER warrants and represents that it currently has and shall continue to maintain during the Term of the Agreement all active, in good-standing interchange agreements with all railroads, trailer leasing companies, and steamship lines necessary to provide the services contemplated by this Agreement.
g. CARRIER is responsible for accurate counts if counting service is required.
h. CARRIER shall bill all charges for services directly to BROKER. CARRIER shall provide BROKER with copies of signed Bills of Lading and delivery receipts as evidence of such services within ten (10) business days.
i. CARRIER shall ensure that all loaded and empty containers transported by CARRIER under this Agreement are delivered to the correct location and/or dropped in the correct yard designated by BROKER. CARRIER's failure to do so will result in a monetary assessment of $200 per calendar day, (from date of drop at incorrect delivery point until the container is delivered to the correct delivery point) up to a maximum of $1000 per incident. BROKER is authorized to deduct this monetary assessment against CARRIER's compensation payable under this Agreement.
j. Additionally, CARRIER shall be deducted the following sums for specific service failures: a) $300 for each missed terminal ingate or outgate appointment resulting in per diem charges, including but not limited to detention or demurrage fees; b) $125 for each missed terminal appointment.
7. BILLS OF LADING. CARRIER shall issue a Bill of Lading, in its own name, showing the kind, condition and numerical quantity of the property received and delivered by CARRIER at the loading and unloading points. CARRIER shall assume full and complete responsibility and liability for any and all loss and/or damage to, or delay of, any shipment of property while in the possession or control of CARRIER, provided, however, that when the terms and conditions specified in this AGREEMENT are different from the terms and conditions contained in the Bill of Lading, then the terms and conditions of this AGREEMENT shall prevail.
8. EQUIPMENT INTERCHANGE COMPLIANCE. CARRIER warrants that prior to entering a port facility, off site container yard or rail yard to pick up or deliver equipment in the performance of services applicable, it shall have properly executed an equipment interchange agreement with the relevant ocean BROKER, rail yard, chassis pool or equipment provider. CARRIER further warrants and represents that it is, and will at all times, remain in compliance with the terms and conditions of said interchange agreement, including all applicable circulars, tariffs or rules which may be referenced therein. CARRIER does hereby indemnify and hold harmless BROKER from any liability, loss or expense on account of CARRIER's failure to comply with the terms and conditions of any such interchange agreement. CARRIER must provide BROKER with evidence of any equipment interchange agreement upon request. CARRIER shall be liable to BROKER for any charges incurred by, charged to, or asserted against BROKER due to CARRIER's failure to comply with the terms of this agreement.
9. SUBCONTRACT PROHIBITION. CARRIER shall not 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. It is expressly understood that CARRIER'S violation of this prohibition shall be deemed a material breach of this contract and shall nullify and vitiates any CARRIER limitation of liabilities or damages herein or otherwise. If CARRIER breaches this provision, BROKER shall have the right of paying the monies it owes CARRIER directly to the delivering CARRIER, in lieu of payment to CARRIER. CARRIER shall also be liable to BROKER or any third- party, including the SHIPPER, Customer, consignee or any third-party payor, for any and all liabilities for losses, damages or delays resulting in any way from breach of this prohibition. Upon BROKER's payment to delivering CARRIER, CARRIER shall not be released from any liability to BROKER under this Agreement. CARRIER further agrees that its indemnifications obligations in in this Agreement shall also apply for breach of this provision. In addition to the indemnity obligation in Par. 12, CARRIER will be liable for consequential damages for violation of this provision.
10. COMPLIANCE WITH LAW. CARRIER shall comply with all applicable DOT laws and regulations as well as any other federal, state, and provincial laws, regulations and ordinances applicable to the operations of a motor CARRIER. CARRIER represents and warrants that it shall insure all equipment used to provide services in or through the state of California under this Agreement is compliant with California law including but not limited to: All regulations and requirements under the California Air Resources Board's (“CARB”) Transport Refrigeration Unit (“TRU”), Airborne Toxic Control Measure (“ATCM”), Truck and Bus Regulation and Greenhouse Gas regulation. CARRIER shall be liable for and agrees to indemnify BROKER and its customer(s) for any penalties or other liabilities imposed upon BROKER and its customer(s) as a result of CARRIER's use of equipment found to be noncompliant with any laws, statutes, regulations, or requirements, including but not limited to those set forth above. Upon BROKER's request CARRIER shall provide proof of CARRIER's compliance with any such laws, statutes, regulations, or requirements.
11. When using a chassis provided by BROKER, CARRIER will be responsible for delivering such chassis to the location designated by BROKER in good condition. In the event that the chassis is damaged or rendered a complete loss while in CARRIER's possession or control, then CARRIER will be responsible for paying for all such damages and losses up to a chassis replacement cost of $13,800 per chassis. In addition, CARRIER will be responsible for the following costs associated with the misuse or mis-termination of any BROKER-provided chassis: (a) $250 per day for each day that the chassis is not delivered to the correct final destination provided by BROKER; (b) $1,000 per occurrence in the event BROKER has to recover the chassis because CARRIER has failed to do so; and (c) $750 per occurrence in the event that CARRIER uses BROKER's chassis to haul shipments for other entities without BROKER's prior written authorization.
12. INSURANCE. During the term of this Agreement, CARRIER shall procure and maintain, at its sole cost and expense, the following minimum insurance coverage's with properly licensed and reputable insurance companies.
a. Commercial Automobile Liability Insurance for “any auto” or for “scheduled and hired autos” with the minimum combined single limit for bodily injury, death and property damage of $1 million per occurrence (or $5 million if required by the DOT under 49 C.F.R. Part 387 for the transportation of certain hazardous substances) covering all vehicles owned used by CARRIER in performing the services set forth in this Agreement.
b. All Risk Broad Form Motor Truck Cargo Legal Liability Insurance in an amount equal to the full value of the property to be transferred by CARRIER under the Agreement, but in no event less than $100,000 per occurrence. Such cargo liability policy must include coverage for unattended vehicles, employee theft and dishonesty, and shall have no other exclusions or restrictions of any type that would foreseeable preclude coverage related to any cargo loss, damage, or delay claim.
c. Commercial General Liability Insurance in a limit of not less than $1,000,000 per occurrence.
d. Statutory Worker's Compensation Insurance as required by applicable state law, and employer liability coverage in the amount of $500,000 per occurrence.
e. Any other insurance or surety bonding as agreed upon by CARRIER and BROKER from time to time to meet special insurance requirements of BROKER'S customers or as may be required under the laws, ordinances, and regulations of any governmental authority. At all times during the terms of this Agreement, CARRIER shall comply with the financial responsibility requirements of federal, state, and provincial departments and agencies through which it is regulated and authorized to operate.
f. All insurance required by this Agreement must be written by an insurance company having a Best's rating of “B+” VII or better and must be authorized to do business under the laws of the state(s) or province(s) in which CARRIER provides the transportation and related services as specified in load confirmation communications received from BROKER. Prior to performing services under this Agreement, CARRIER shall furnish to BROKER written certificates obtained from CARRIER'S insurance provider showing that the insurance coverage's required in this Agreement have been procured, are being properly maintained, stating the expiration date, and specifying that written notice of cancellation or modification of the policy shall be given to BROKER at least thirty (30) days prior to such cancellation or modification. Upon request, CARRIER shall provide BROKER with copies of all applicable insurance policies. CARRIER'S cargo and liability insurance shall comply with DOT requirements in all respects, with no exclusions, exceptions, or restrictions.
13. INDEMNIFICATION. To the maximum extent provided by law, CARRIER shall defend, indemnify and hold BROKER and its shipper and receiver customers harmless from any and all liability and/or claims arising from CARRIER's breach of this AGREEMENT, for loss or damage to any property in the possession and/or control of CARRIER arising from the transportation and services provided by CARRIER under this AGREEMENT, and for any and all liability and/or claims for personal injury or death or property damage arising out of the acts or omissions of CARRIER or its employees, agents, or CARRIERs in providing transportation and services hereunder. CARRIER'S obligation shall include liability for payment of any and all costs and/or fees incurred by BROKER in the adjustment or defense of any claim for cargo loss or damage and/or claim for personal injury or death or property damage arising out of transportation operations and services under this AGREEMENT. CARRIER agrees that its obligation to defend, indemnify and hold harmless the BROKER and its shipper and receiver customers from and against any and all claims and liabilities resulting from or arising out of transportation operations and services under this AGREEMENT shall survive any termination of this AGREEMENT.
14. CONFIRMATION IN WRITING. This Agreement may be executed by BROKER and CARRIER executing separate identical counterparts, which together shall constitute one agreement. BROKER and CARRIER may execute this Agreement (or a counterpart) with an original signature or facsimile signature. Any execution by facsimile signature shall be as effective as execution with original signature.
15. SHIPPER LOAD AND COUNT. Failure of CARRIER to cause the drivers to perform in accordance with this Section will result in claims asserted against CARRIER if shipper load and count freight is lost or damaged.
a. VERIFICATION OF SEAL NUMBER. BROKER will include the seal number on the duly executed bill of lading accompanying the freight. CARRIER will cause its driver to verify the original seal number with the consignee and to have the consignee execute the proof of delivery that also contains the seal number. A notation of “seal intact” without the seal number on the proof of delivery will not relieve CARRIER of liability in the event of a shortage claim. If the shipment is comprised of a dropped trailer, then CARRIER will cause the driver to obtain the customer's signature, the seal number and carton count verification.
b. SUBJECT TO COUNT. CARRIER will be held strictly liable in the event that the consignee asserts a shortage claim if (i) the seal was not intact and (ii) the bill of lading or Shipper's delivery instructions states “subject to count” or STC.
16. LIABILITY FOR CARGO CLAIMS. CARRIER shall maintain the sole and exclusive care, custody, and control of all shipments from the time the shipment is delivered to CARRIER for transportation until delivery to the consignee accompanied by the appropriate delivery receipt as specified in this Agreement. CARRIER assumes the liability of a common CARRIER (i.e. Carmack Amendment liability under 49 U.S.C. §14706) for any loss, delay, damage to or destruction of any and all shipments while under CARRIER'S care, custody, and control. CARRIER'S liability under this Agreement for any cargo claims shall be the full value of the property, meaning its replacement cost as established by trade, sell or other invoice documentation, plus any additional transportation cost or incidental expenses that may be incurred by BROKER or its customer.
17. NO LIENS. CARRIER shall have no right to assert any lien on or against any property transported under this AGREEMENT. However, should a shipper or consignee notify BROKER of a claim for loss or damage to property transported hereunder, CARRIER agrees that BROKER and shipper or consignee shall have the right to set-off an amount sufficient to cover such claim and to deduct and withhold such amount from any payments due to CARRIER.
18. NON-SOLICITATION COVENANTS. Throughout the term of this Agreement and for a period of ninety (90) days after termination of this Agreement, CARRIER agrees not to directly or indirectly, or in conjunction with any other person or entity, solicit business to haul loads anywhere in the United States of America for any of the BROKER's customers for which CARRIER hauls any load pursuant to this Agreement, unless otherwise agreed to by BROKER in writing.
19. RESOLUTION OF DISPUTES. The parties consent and agree to the exclusive jurisdiction of the federal or state courts of California in any action under this Agreement and that any such court in California will be an appropriate forum for such action. Proceedings based upon loss, damage, injury or delay to property transported pursuant to this AGREEMENT shall be initiated within two (2) years from the later of the dates on which the shipper or receiver claimant and the BROKER receive written notice of disallowance of claim from CARRIER. Any and all claims, disputes, allegations, or controversies arising out of or relating to this agreement shall be resolved exclusively by confidential binding arbitration with the Los Angeles, California branch of BROKER governed by BROKER's commercial rules of arbitration and heard before one arbitrator. Each party shall bear its own attorneys' fees, expert witness fees, and costs incurred in connection with any arbitration.
a. Attorney Fees, Each Party shall be solely responsible for their own attorney's fees and costs up to the execution of this Agreement, however, the Parties to this Agreement acknowledge that if either Party breaches the settlement agreement then the prevailing Party will be entitled to recover reasonable costs and attorney fees associated with the enforcement of this Agreement.
20. USE OF TRAILER OR CHASSIS PROVIDED BY BROKER. In the event that CARRIER utilizes a trailer, container, chassis or other equipment owned by or leased to BROKER or its Customer, or otherwise provided to CARRIER by BROKER or its Customer (“Trailer(s)”) for the performance of the Services contemplated hereunder, CARRIER shall be liable for any damage to Trailers, destruction of Trailers, theft from Trailers, theft of any contents of Trailers, and for any claims for bodily injury (including death) or property damage caused by any Trailer(s) regardless of whether such damage, injury, destruction, or theft is caused or occurs while the Trailer is attached or unattached to any power unit operated by CARRIER, except to the extent such damage, destruction, or theft is caused by the negligence, recklessness, or willful misconduct of BROKER or the Customer. The initial burden of proving such damage, injury, destruction, or theft was the result of the negligence, recklessness, or willful misconduct of BROKER or the Customer in any proceeding brought pursuant to this Agreement shall rest on CARRIER. In the event that applicable state law does not allow waiver of liability to the extent contained in this provision, the Parties expressly agree that BROKER's and Customer's liability will be waived to the fullest extent allowed by applicable state law. In no event will any such Trailer be used for any purpose other than performing Services hereunder, and in no event will CARRIER allow any third party or any power unit not operating under CARRIER's for-hire motor carrier authority to operate any such Trailer, unless expressly authorized to do so in writing which written notice must be specific to the movement at issue. Upon BROKER's request, CARRIER shall obtain an All-Risk Property Damage Insurance Policy to provide coverage for the full value of any Trailer provided for CARRIER's use by BROKER or Customer. CARRIER acknowledges and agrees that neither BROKER nor the Customer make any warranties, whether express or implied, regarding the Trailer including, but not limited to, any warranty of merchantability or fitness for particular use.
21. ENTIRE CONTRACT. The provisions contained in this AGREEMENT properly express and memorialize the complete understanding and agreement between the parties, including those contained in all prior agreements, both verbal or written, and there are no other agreements or understandings between the parties, express or implied, except as set forth herein.
22. AMENDMENTS. This AGREEMENT may not be modified or amended except by a subsequent written amendment signed by both parties.
23. WAIVERS. Wavier by either party of any failure to comply with any provision of this AGREEMENT by the other party shall not be construed as or constitute a continuing waiver of such provision of a waiver of any other breach of or failure to comply with any other provision of this AGREEMENT. As allowed for under 49 U.S.C. § 14101 (b)(1), BROKER and CARRIER waive any rights and remedies specified in 49 U.S.C. IV Part B except for provisions governing registration, insurance, or safety fitness.
24. NON-ASSIGNABILITY. Both parties are expressly prohibited from assigning any of their rights or delegating any of their obligations under this AGREEMENT to any third parties (such as sub-haulers, sub-BROKERs and any other form of substituted person or entity), unless the express written consent to such assignment or delegation is first obtained from the other party.
25. ELECTRONIC AND FAX COMMUNICATIONS; COMPUTER VIRUSES. During the term of this Agreement, the parties anticipate that they will exchange materials and information in electronic form (collectively “Electronic Materials”) either through the other party's websites, e-mail other electronic means (collectively “Electronic Connections”) and via fax. By providing their fax number and signing this Agreement herein below, each party consents to receiving communications via fax regarding all aspects of their relationship. BROKER and its affiliates take reasonable steps to protect Electronic Materials resident on its networks, stored in its electronic media, or available on its websites, and take reasonable steps to prevent harm arising from Electronic Connections. Due to the nature of Electronic Communications and the Internet, BROKER and its affiliates do not provide, and expressly disclaim, any warranty (i) that Electronic Materials received by the CARRIER will be free of computer viruses or (ii) that Electronic Connections with the CARRIER will be free from harmful effects. It is the CARRIER'S responsibility (i) to take reasonable steps to protect Electronic Materials resident on its networks, stored in its electronic media, or available on its websites, (ii) to take reasonable steps to prevent harm arising from Electronic Connections, and (iii) to perform any anti-virus scanning, data backup, security, and other precautions reasonably necessary to safeguard against computer viruses, worms, and other intrusive or damaging code (collectively “Computer Viruses”) and other threats posed by Electronic Materials and Electronic Connections. Under no circumstances will BROKER or its affiliates be responsible for, and CARRIER hereby waves and releases BROKER and its affiliates from, any liability for any loss or damage caused by Computer Viruses, the CARRIER'S receipt of Electronic Materials from BROKER or its affiliates or Electronic Connections between BROKER and its affiliates and the CARRIER.
26. BINDING EFFECT. This AGREEMENT shall be binding upon and shall inure to the benefit of the parties and their representatives, successors and authorized assigns.
27. SEVERABILITY. If any provision of this AGREEMENT is determined by an Arbitrator or by a court of competent jurisdiction to be contrary to the laws or regulations of any applicable jurisdiction, then such invalid provision shall be severed from this AGREEMENT; however, such determination shall not affect the validity of any other provisions of this AGREEMENT.
28. AUTHORITY OF REPRESENTATIVES TO BIND PARTIES. It is agreed and warranted by the parties that the persons signing this AGREEMENT respectively for CARRIER and BROKER are authorized to do so. No further proof of authorization is or shall be required.
29. COUNTERPARTS. This AGREEMENT may be executed in any number of identical counterparts and each such executed counterpart shall be deemed a duplicate original hereof.
30. NOTICES. Any notices required or permitted to be given under this AGREEMENT shall be in writing and shall be sent by first class mail and by fax transmission. The mailed notices shall be addressed to the parties, respectively, at the address shown below, and the contemporaneously faxed notices shall be likewise transmitted to the facsimile numbers shown below.
Amendments to Broker Carrier Agreement
1. CARRIERS MOVING PERISHABLES. Carrier will verify that the equipment is suitable for the transportation of food, dairy & milk products for human or animal consumption, as applicable, 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 & and if milk is transported, comply with the procedures stipulated in any shipping documents and herein. Carrier warrants that the Carrier will inspect or hire a service representative to inspect a vehicle's refrigeration or heating unit at least once each month. 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. 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 will maintain effective driver screening, training, qualification and monitoring procedures and will provide Broker with information about these procedures upon request. Carrier will cause its drivers and other Carrier Representatives to operate their vehicles and equipment in a proper and lawful manner and to maintain equipment used to provide the Transportation Services in good, safe, sanitary, disinfected and lawful operating condition at all times. Carrier will use equipment that has been cleaned and sanitized in accordance with reasonable efforts not to supply equipment for Transportation Services that has been previously used to transport other product. The Carrier must provide their cargo insurer with all records that relate to a loss and permit copies and abstracts to be made from them upon request. Broker's customer is a third party beneficiary of this Agreement. The following rules shall apply:
a. Destination market value for lost or damaged cargo, no special or consequential damages unless by special agreement;
b. Claims will be filed with Carrier by Broker or Shipper. 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. All vehicles used for the transportation of pasteurized milk and milk products shall be constructed and operated so that the milk and milk products are maintained at 7ºC (45ºF) or less and are protected from contamination. Milk tank cars, milk tank trucks, and portable shipping bins shall not be used to transport or contain any substances that may be toxic or harmful to humans.
2. SAFETY RATING. Carrier shall endeavor to maintain a satisfactory U.S. DOT Safety Rating but under no circumstances is Carrier allowed to provide services under this contract if their safety rating falls to “unsatisfactory.”
3. THIRD ADDENDUM. This Third Addendum (“Addendum”) to the existing Broker Carrier Agreement, (“Agreement”), between Dray Alliance, Inc. (“Broker”) and carrier (“Carrier”) and is made effective as of the date signed or otherwise agreed to by Carrier. Accepting shipments after receipt of this Addendum shall constitute Carrier’s expressed agreement to the terms set forth herein, as if signed, to the maximum extent of the law. Other than the changes contained in this Amendment, the terms of the Agreement will apply.
a. Carrier agrees to comply with the following when transporting freight for Samsung SDS America, Inc. or its related or affiliated companies (“SDS”):
i. Carrier must have equipment ready on time to avoid a delay in cargo pickup.
ii. Carrier shall be liable for any loss of or damage to SDS warehouse premises, or any SDS and SDS’s customer owned equipment.
iii. Carrier shall be liable for loss or damage to a shipment occurring while in its possession.
iv. Carrier is liable for cargo loss and damage per 49 U.S.C. 14706, in an amount equal to the full value of the property to be transferred by CARRIER under the Agreement, but in no event less than $100,000 per occurrence.
v. The measure of damages shall be the invoice value of the shipment, or in the absence of an invoice, wholesale destination value.
vi. Carrier must maintain a level of security acceptable to SDS at all times. Carrier must take all reasonable precautions to protect SDS’s assets.
vii. Carrier is responsible for security of containers when pulled to its yard, and takes full responsibility for any damages, stolen, or misplaced containers while in its possession.
viii. Carrier must secure a signature/stamp on delivery at receiver for Proof of Delivery (POD) and deliver it to Broker within the agreed deadline.
ix. Carrier is not allowed to subcontract. No double-brokerage is permitted.
x. Carrier agrees to maintain all security requirements which include DOT/TWIC/AB5 regulations and contingency plans for disasters such as fire, flood, etc.
xi. Carrier is required to utilize SDS’ private chasses pool as a priority option. If SDS private chassis are unavailable, Carrier can explore alternative options by first using DCLI chassis and if none are available then Carrier may use Dray Alliance own chassis and if none are available then carrier may use Pool-of-Pools (POP) chassis.
xii. Carrier must be registered with DCLI and have signed an up-to-date Interchange Agreement.
xiii. Carrier must record the Chassis number on the POD that will be submitted to Broker.
xiv. When applicable, Carrier must pick up DCLI chassis and return chassis to the correct applicable start/stop location.
xv. SDS’ private pool chassis MUST be returned to the designated yard location where SDS’ private chassis are stored.
b. Carrier must do a pre-trip inspection of SDS’ private pool chassis prior to out-gating from DCLI start/stop location and a pre-trip inspection of SDS’ private pool chassis when in-gating back to the same start/stop location for any damages and expirations. Carrier will be responsible for any damage to chassis not reported on these checks.
c. After Broker business hours, Carrier must contact DCLI’s Road Service Call Center number: 704-256-8067 as all critical road service repairs must be facilitated through the DCLI Road Service Call Center. During Broker business hours Carrier must contact Broker immediately in the event of a chassis breakdown or blowout.
d. Carrier is responsible for insuring SDS’ private pool chassis is within guidelines and FMCSA compliant prior to leaving any location. Carrier must contact Broker or DCLI’s Road Services in order to find approved location to perform FMCSA inspection should Carrier find that the FMCSA has expired while on the road.
e. Carrier must use SDS’ private chassis for Samsung moves ONLY. If carrier uses private chassis to move cargo other than that belonging to Samsung, Broker will charge Carrier chassis misuse fees as stated in the Dray Alliance Broker Carrier Agreement, for every day that the chassis was misused.
f. Carrier shall be responsible for the cost to repair damage to each SDS' private pool chassis including tires, that occurs while the SDS' private pool chassis is utilized. Ordinary wear and tear (as reasonably determined by chassis provider or its repair vendor) excepted. In the event damage is discovered upon return of the SDS' private pool chassis, Carrier will be responsible for any assessed repair costs. In the event repairs are required while SDS' private pool chassis is utilized, Carrier shall effect repairs using DCLI's then-current over-the-road repair procedures (also referred to as DCLI's Road Service Policy) published at DCLI's website. If Carrier makes any repairs on any SDS' private pool chassis, Carrier shall be responsible for the cost of such repairs
g. Carrier must provide private chassis number that each container is mated to if not, neither SDS nor Broker will pay for that chassis usage.
h. Carrier must have and maintain at its sole cost and expense, adequate insurance coverage with a combined single limit of $1,000,000 or greater for standard SDS’ private pool chassis and $2,000,000 or greater for specialty SDS’ private pool chassis.
i. Carrier must defend, identify and save harmless SDS and its insurers, affiliates, and their respective employees, agent, representatives, successors and assigns (such parties, the “Indemnified Parties”) (without regard to whether their liability is vicarious, implied in law or as a result of their failure or negligence or otherwise) from and against any and all suits, losses, fines, penalties, damages, claims, injuries including death, damage to property, damage to or loss of any SDS’ private pool chassis, other demands and liabilities of every nature, including reasonable attorney’s fees, arising directly or indirectly from or in connection with: (i) the possession, use, condition, or operation of any SDS’ private pool chassis by Carrier, Carrier’s, agent, subcontractor, representative or any other third party to whom Carrier has relinquished possession of the SDS’ private pool chassis or Carrier’s SCAC (as such term is hereinafter defined) upon interchange to such third party form the Start/Stop Location and any of their respective employees, including, without limitation, actions or claims for negligence or strict liability in tort, (ii) allegations that any Indemnified Party is the “employer” or “joint employer” of any member of any Carrier Party’s labor force, whether through claims of vicarious liability or otherwise, (iii) a breach of carrier’s obligations hereunder or (iv) Carrier’s failure to comply with any Applicable Law, excluding in the case of each of (i) through (iv), above, only liabilities solely and directly arising out of SDS’s willful misconduct or grossly negligent acts.. If applicable state law does not allow enforcement of indemnity obligations to the extent contained in this provision, the parties expressly agree that Carrier will be obligated to indemnify the Indemnified Parties to the fullest extent allowed by Applicable Law. The provisions of this section shall survive the termination, cancellation or expiration of this Agreement.
j. Priority: SDS’ private chassis pool locations: ConGlobal Industries (CGI), 1711 Alameda St., Wilmington, CA (“LA Private Pool”). Option #1: DCLI pool locations, Carrier is required to use DCLI chassis when SDS’ private chassis are unavailable. Chassis Pool - Pool of Pools (POP). Area - Pacific Southwest. Location - Ports of LA/LB. Remarks - DCLI, Trac Intermodal, and Flexi-Van.
k. Start and Stop Locations - Carrier must return chassis to the correct applicable start/stop location.
Exhibit B
Terms Specific to Drayage Moves SECTION A: GENERAL DRAYAGE TERMS
1. CARRIER Liability for DRAYAGE. With respect to BROKER load and count shipments verified by a seal number and subject to Section A.2 directly below, CARRIER will be strictly liable for loss of or damage to freight transported under this Agreement only if the seal is broken. In all other instances for DRAYAGE, risk of loss of or damage to freight transported under this Agreement will at all times remain with CARRIER while such freight is in CARRIER's care, custody or control or the care, custody or control of employee or any person or entity to which CARRIER has delegated any obligation under this Agreement. The value of loss of or damage to freight will be equal to the full customer invoice value, including freight and handling charges. Additionally, BROKER will not be liable to CARRIER for any freight or accessorial charges associated with damaged freight or freight returned to BROKER due to CARRIER's non-compliance with the terms of this Agreement. Furthermore, CARRIER acknowledges and agrees the inherent risks associated with selling or disposing of damaged cargo in salvage markets, employee stores or any other secondary outlets and will not do so.
2. BROKER Load and Count. Failure of CARRIER to cause the drivers to perform in accordance with this Section will result in claims asserted against CARRIER if BROKER load and count freight is lost or damaged.
a. Verification of the Seal Number. BROKER will include the seal number on the duly executed bill of lading accompanying the freight. CARRIER will cause its driver to verify the original seal number with the consignee and to have the consignee execute the proof of delivery that also contains the seal number. A notation of “seal intact” without the seal number on the proof of delivery will not relieve CARRIER of liability in the event of a shortage claim. If the shipment is comprised of a dropped trailer, then CARRIER will cause the driver to obtain the customer's signature, the seal number and carton count verification.
b. Subject to Count. CARRIER will be held strictly liable in the event that the consignee asserts a shortage claim if (i) the seal was not intact and (ii) the bill of lading or BROKER'S delivery instructions states “subject to count” or “STC”.
3. Representations and Warranties. In addition to Section 25 of Exhibit A, CARRIER further represents and warrants with respect to DRAYAGE that it has effected and/or obtained, and shall maintain all necessary approvals, authorizations and rights of access to the terminals to and from which freight shall be transported on BROKER'S behalf by CARRIER under the terms of this Agreement, including but not limited to the execution of the Uniform Drayage Interchange and Facilities Access Agreement (“UIIA”), and covenants and agrees to comply with the duties and obligations imposed upon CARRIER under the UIIA, and any other rules and regulations governing the access to, and use of such terminal, whether imposed by the owner/operator of such terminal or by governmental authority.
