MOTOR CARRIER AGREEMENT
THIS MOTOR
CARRIER AGREEMENT (the “Agreement”) is entered into as of the ______ day of
__________, 200__, by and between NATIONAL LOGISTICS MANAGEMENT INC., a
Michigan corporation with its principal place of business located at 14320 Joy
Road, Detroit, Michigan 48228 (hereinafter referred to as “Broker”) and
___________________________, with its principal place of business located at
_______________________________________ (hereinafter referred to as “Carrier”),
whose taxpayer identification number is [ADD] , as follows:
RECITALS
WHEREAS, Broker is a licensed
transportation broker and desires to engage the services of Carrier to
transport freight for Broker’s customers (the “Customers”); and,
WHEREAS, Carrier
is a licensed motor carrier having the authority to provide freight
transportation services and is willing to provide such services as a contract
carrier for Broker.
NOW, THEREFORE, in consideration of
the covenants and conditions set forth herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties agree as follows:
AGREEMENT
1.0 CARRIER SERVICES: AUTHORITY.
1.1 Carrier Services. Broker agrees to engage Carrier for the
purpose of transporting freight of Customers from time to time as a contract
carrier (“Service” or “Services”). Carrier agrees and acknowledges that Broker
is not and shall not be a “motor carrier” for any purpose of this Agreement.
1.2 Authority. Carrier agrees to transport such freight as
requested by Broker in accordance with all applicable laws associated with the
jurisdiction in which the Carrier operates or is asked to operate. Carrier
hereby represents and warrants to Broker that it is duly authorized under all
applicable law to engage as a contract carrier and shall continue to be so
authorized at any time that Carrier provides Services to Broker pursuant to
this Agreement. Carrier agrees not to
accept any shipments from Broker for which Carrier does not have all required
motor carrier operating authority.
1.3 Independent Contractor. For all purposes under this Agreement, Broker
and Carrier are and shall be independent contractors. None of the personnel assigned or utilized by
Carrier to perform the Services hereunder shall be deemed to be employees of
Broker. Carrier shall be responsible for
and shall exercise exclusive control over its employees and personnel.
1.4 Statutory Waiver. Except as otherwise provided herein, the
parties agree that this Agreement is a written contract in accordance with 49
USCA §14101(b)(1). Accordingly, and
except as otherwise specifically provided herein, and in accordance with
applicable law, the parties expressly waive any and all rights and remedies
otherwise available to them under the provisions of the Interstate Commerce
Act, 49 USCA, et seq.
2.0 EQUIPMENT AND OPERATIONS
2.1 The
Equipment. In conjunction with
providing the Services to Broker, Carrier will provide and utilize all
necessary vehicular equipment and materials (hereinafter called the
“Equipment”) at Carrier's own expense.
Carrier represents that the Equipment is consistent with and meets the
requirements of all applicable federal, state, and municipal laws and
regulations.
In providing the Services hereunder, Carrier agrees that all Equipment
shall have a manufactured date not less than ten (10) years prior to the date
such Equipment will be used to transport freight for a Customer hereunder.
2.2 Maintenance and Inspection. Carrier represents that at all
times hereunder Carrier shall maintain the Equipment in accordance with the
safety and equipment standards specified in applicable federal, state and
municipal laws and any rules, regulations and orders of any applicable agency. In the event the Equipment is found to be
deficient by any source, including Broker, under any applicable law or
regulation (“law or regulation”), Carrier agrees to immediately remove and
replace the Equipment from Service with Broker until it is brought into
compliance.
2.3 Operating Expenses. Carrier shall bear all costs and expenses
incidental to the operation of the Equipment or any other expenditure. Carrier
shall be liable for all fines and penalties incurred during the operation of
the Equipment. If Broker or any subsidiary or affiliate of Broker is required
to pay any expenses on behalf of the Carrier, Carrier shall reimburse Broker or
any subsidiary or affiliate of Broker in full within thirty (30) days, unless
otherwise agreed to. In the event that Carrier shall fail to so reimburse
Broker for any such expense, Broker may unilaterally and, without prior notice
to Carrier, offset any such amounts against any amounts otherwise owed to
Carrier by Broker. Any such offset is
fully authorized by Carrier.
2.4 Operation of the Equipment. Carriers shall at its sole discretion direct
the operation of the Equipment and determine the methods, manner and means of
performing the obligations specified in this Agreement. In addition, Carrier agrees to notify Broker
when Carrier takes possession of cargo that is visibly packaged in a manner that
is not adequate or acceptable for normal transportation.
2.5 Subcontracting. It is agreed and
understood that Carrier may, from time to time, utilize the service of “Owner
Operators” to facilitate delivery of any Cargo hereunder. For the purpose of
clarification, such “Owner Operators” are individuals or a company that owns
its own equipment and operates said equipment under the exclusive authority of
the Carrier that is executing this Agreement. Carrier will not, in any
situation, “trip lease”, broker or in any way engage the services of another
carrier, without prior written consent of Broker. Carrier shall be solely responsible to pay any
such subcontractor for all services provided by the subcontractor to
Carrier. Any such subcontract is not
under contract to Broker and Carrier shall indemnify Broker from and against
any claims, including for payment of freight charges made against Broker.
2.6 Offer/Acceptance of Work. This Agreement does not obligate Carrier to
accept for transportation every or any shipment
offered by Broker to Carrier, nor does it obligate Broker to offer any shipments to Carrier. Carrier expressly acknowledges that it
understands that Broker is not obligated to utilize Carrier’s Services. Furthermore, Carrier understands that there
are no guarantees of shipment volume and/or any specific lane volumes. In the event Carrier accepts a shipment offered by Broker, Carrier agrees to
transport and deliver such shipment in conformity with any terms or conditions
of any agreement, which may have been entered into by Broker with a Customer
for which Carrier is performing the transportation service. In the event
that Carrier is not able to fulfill Services promised, Broker agrees to give
Carrier, at Carrier’s expense, the opportunity to provide an alternate mode of
transportation that: (i) is necessary to complete the commitment of Services
promised; (ii) represents limited exposure to risk of additional failure; and,
(iii) is agreeable to Broker. If, after
Carrier has taken possession of a shipment offered by Broker, Carrier is, for
any reason within Carrier’s control, unable to complete Services promised but
not provided, or if Carrier is unreasonably delayed in completing delivery,
Broker may arrange for completion of delivery at Carrier's expense. Any expense
incurred by Broker as a result of Carrier's inability to perform hereunder as
described in this paragraph may be deducted from any amounts otherwise due
Carrier under this Agreement.
3.0 PAYMENT.
3.1 Payment. Except
as otherwise provided herein, including, without limitation, Section 3.1(a)
below, Broker agrees to pay Carrier for the Services provided by Carrier under
this Agreement and, as well, Carrier's rates and charges as set forth in
Carrier's applicable tariff in effect as of the date of this Agreement, or, in
the absence of such tariff, any schedule of rates and
charges that may be attached hereto as an Appendix, as may be amended from
time-to-time by the written consent of Carrier and Broker. Broker and Carrier acknowledge that the rates
and charges set forth in the Appendices at any time are the maximum rates
applicable to Carrier for Services hereunder.
Carrier and Broker are free to utilize lower rates and charges where
warranted and as agreed upon by the parties, including but not limited to,
one-time special rates for any of the Services hereunder. In the event that the parties amend any
Appendix by executing a revised form of that particular Appendix, such new
Appendix shall apply to all Services provided by Carrier hereunder as of the
date of any such new Appendix and thereafter.
3.1(a) Carrier acknowledges and agrees that freight payments otherwise
due Carrier for Services performed for those Customers referred to in one of
the Appendices attached hereto, shall be the sole responsibility of the
Customer. For those Customers who
directly pay Carrier under this Section 3.1(a), Carrier agrees and acknowledges
that Broker has no freight payment obligation to Carrier for Services performed
for that Customer.
3.1(b) With respect to Customer payments otherwise due under Section
3.1(a), in the event that Broker agrees itself to make the payment provided for
therein, Carrier agrees that Broker shall have no separate obligation to pay
Carrier unless the Customer, in fact, first paid Broker.
3.2 Facilitator. Broker agrees to assist Carrier as a
facilitator in any Carrier freight payment matters. Broker assumes no liability whatsoever in
this role or process.
3.3 Payment Terms. Any Carrier settlement hereunder will be
based on the specifications of Broker and Broker’s Customers. The preferred payment methods are as follows:
3.3.1 On-line. Except with respect to those
invoices submitted directly to Customer by Carrier under Section 3.1(a),
Carrier must submit to Broker, within sixty (60) days from the shipment
delivery date, all invoices and supporting documentation for Services performed
on behalf of Broker for which Broker is obligated to pay under Section
3.1. Electronically or on-line submitted
invoices are considered finalized once audited and accepted by Broker. In the
event that Carrier submits an invoice after the applicable dates provided for
herein, Broker will have no liability to pay for such invoice, and Carrier
waives its right to collect for the Services covered by such invoice. If such invoices
become manual submitted invoices or require manual documentation, said invoices
shall be subject to requirements established in Section 3.3.2.
3.3.2 Manual Submission.
Except with respect to those invoices submitted directly to Customer by
Carrier under Section 3.1(a), Carrier must submit to Broker, within sixty (60)
days from the shipment delivery date, all invoices and supporting documentation
for Services performed on behalf of Broker for which Broker is obligated to pay
under Section 3.1. Manually submitted
invoices are considered finalized once audited and accepted by Broker. In the
event that Carrier submits an invoice after the applicable dates provided for
herein, Broker will have no liability to pay for such invoice, and Carrier
waives its right to collect for the Services covered by such invoice.
3.3.3 Inaccurate/Late Billing.
Except in instances of Broker’s sole negligence, any late or inaccurate
Carrier invoice, not in compliance with the invoice terms established herein,
shall be subject to a service charge as established in the Appendix attached
hereto and withheld from final payment of said invoice.
3.3.4 Billing Requirements For Particular Customers. For purposes of this Agreement, Carrier
agrees that those Customers designated in the Appendices hereto have their own billing requirements
as set forth in said Appendix, and Carrier shall comply with such conditions as
set forth therein.
3.3.5 Broker’s Payment of Invoices. For all invoices submitted to Broker
according to and subject to this Section 3.0, Broker shall remit payment to
Carrier within thirty days (30) of the date of receipt thereof.
3.4 Underpayment/Overpayment. With
respect to any invoices presented pursuant to this Section 3.0, any claim by
either party for any undercharges or overcharges, as the case may be with
respect to any amounts invoiced to and paid by Broker shall be submitted in
writing to the other party in ninety (90) days of the original invoice which is
the subject of any such claim. The party
receiving such claim shall then have sixty (60) days after receipt of the claim
to either accept and pay or reject the claim.
Thereafter, the party making such overcharge or undercharge claim, as
the case may be, may elect to submit the claim for resolution pursuant to
Section 9.8 hereof. The expiration of
the time period set forth herein to submit an undercharge or overcharge claim,
as the case may be, shall be a complete and absolute defense to any proceeding
under Section 9.8 to collect such charges.
Failure by Carrier to pay or decline a claim for overcharges submitted
by Broker within the ninety (90) day period provided for herein shall entitle
Broker to offset the amount of said claim against freight charges otherwise due
Carrier pursuant to this Agreement.
3.5 Detention and Accessorial Charges. Broker’s standardized ground accessorial list, as amended from time to time and if
attached hereto as an Appendix, is hereby incorporated into this Agreement.
4.0 QUALIFICATION OF CARRIER PERSONNEL.
All persons employed or otherwise utilized by Carrier to provide the Services
hereunder shall be qualified pursuant to applicable federal, state and
municipal safety standards, including but not limited to the provisions of 49
C.F.R. §§ 382, 383, 391 and 392 and shall be fully trained at Carrier’s expense
to operate the Equipment. Carrier
understands and agrees that as between Carrier and Broker, such persons shall
be considered employees of Carrier and that it is Carrier’s responsibility to
assure that such persons conform fully to the applicable obligations undertaken
by Carrier pursuant to this Agreement.
4.1 Training of Carrier
Personnel. If Carrier requests,
Broker shall provide to Carrier at Carrier’s expense, as established in the Appendices
attached hereto or per a written agreement, an overall training package for
Carrier’s employees in regard to operating and using Broker’s transportation
management system. Said training program
shall be tailored to each Carrier and applicable rates for such program shall
apply.
5.0 INSURANCE.
The Carrier shall procure and keep in force
continuously through the term of their Agreement the following types of
insurance as described in Exhibit A hereto and incorporated herein.
5.1 Carrier shall furnish Broker with
certificates of insurance for the coverages described in Exhibit A in a form
that is satisfactory to Broker evidencing that the coverage required in this
paragraph are in effect. Such
certificates shall reflect that the policies described in Exhibit A have been
endorsed, to the extent possible, to name National Logistics Management Inc.,
as an additional insured, and that such policies shall provide Broker with at
least thirty (30) days notice prior to cancellation, material change or
non-renewal. Carrier shall cause its insurance carrier to provide Broker with a
waiver of the insurer’s rights of subrogation against Broker as respects the
coverage in Exhibit A. Delivery of a
duly executed Endorsement confirming that Broker is a named or additional
insured as the case may be. All insurance as required in this paragraph shall
be maintained with reliable insurance companies having a Best rating of “A” or
better. Carrier shall provide Broker
with a list of all applicable exemptions and exclusions to said insurance
policies.
5.2 All policies will contain a severability
provision in favor of Broker or a full and complete breach of warranty endorsement
to the effect that the insurance coverage will not be invalidated with regard
to the interest of Broker by any act, failure to act, or neglect of
Carrier which is in violation of the terms and conditions of such
insurance. Carrier shall instruct its insurance
carrier to give Broker seven (7) days written notice of any modification or
termination of such insurance policies.
6.0 INDEMNIFICATION.
Except to the extent
attributable to the negligent or intentional acts or omissions of Broker,
Carrier shall defend, indemnify and hold harmless Broker, its officers,
directors, employees, agents, Customers, shippers, consignors, and assigns,
from and against any and all claims, liabilities, losses, damages, penalties,
fee, fines, demands, causes, causes of action, suits, debts, controversies,
settlements, and expenses (including costs of defense an reasonable attorney’s
fees) in connection with a breach by Carrier of this Agreement and or the
injury or death of any person, the damage or loss of any property (except as otherwise
provided in Section 7 below), or the violation of non-compliance with any law
or regulation, which result from or arise out of any act or omission of the
Carrier, its employees, agents, subcontractors, in connection with the
performance of transportation service or any of its duties under or pursuant to
this Agreement.
7.0 FREIGHT LOSS, DAMAGE OR DELAY.
7.1 Liability; Claims. Except as otherwise provided herein, Carrier
shall have the sole and exclusive care, custody and control of the Customers’
property. Notwithstanding the waiver at
Section 1.4, Carrier agrees to and does assume full liability without
limitation in accordance with the Carmack Amendment, 49 USCA §14706, for any
and all loss, delay, damage to or destruction of Customers’ property
transported hereunder while in or under Carrier’s care, custody or control. On
behalf of its Customer, Broker will present to Carrier, in writing, within one
hundred eighty (180) days, any claim for loss or damage to Customer’s property.
Carrier shall have sixty (60) days from day of receipt, to accept or deny, in
writing, any claims submitted by Broker.
Payments by Carrier to Broker or Broker’s Customer, pursuant to the
provisions of this Section shall be made within thirty (30) days following the
acceptance, by Carrier, of the claim and presentation of the Broker’s invoice
and supporting documentation for the claim. Written proof of delivery (P.O.D)
is required to be provided to Broker in any reported shortage, damage or loss
or when requested of Carrier by Broker.
Broker reserves all rights, including state law, against Carrier.
7.2 Salvage. Carrier waives any and all right of salvage
or resale of any Customer’s damaged freight. Unless otherwise instructed, the
Carrier shall promptly return or dispose, at the cost of the Carrier, the
damaged goods to the location specified by Broker. The Carrier will not allow
the Customer’s freight to be sold, or made available for sale; in any salvage
markets, employee stores, or any other secondary outlets. In the event that
damaged goods are returned to and salvaged by the Customer, then the Carrier
shall receive a credit for the actual fair market value of such goods, less a
reasonable administration/handling fee.
7.3 No Ownership Interest in Cargo. Possession of any Customer’s property for
transportation hereunder shall not give the Carrier any right title, interest,
ownership or claim for goods tendered for transportation services by or for
Broker’s Customers under this Agreement. Carrier will not in any way encumber
or otherwise encumber said Customers’ ability to take possession of such goods,
including, but not limited to, asserting any lien or withholding any goods on
account of any dispute as to prices or alleged failure of Broker or its Customers
to any charges incurred under this Agreement.
Carrier waives any such lien rights.
8.0 BROKER AUDITS.
Carrier shall use its
best efforts to ensure the accuracy and completeness of the following:
8.1 Manual
and electronic invoicing;
8.2 Manual
and electronic operational updates;
8.3 Equipment
insurance, equipment age, any applicable Federal, State, or Provincial safety
ratings; and,
8.4 Fuel
receipts, drivers’ logs, shipment receipts and other documentation and records
reasonably necessary to permit Broker to confirm the accuracy of Carrier’s
fees.
8.5 In order to confirm Carrier’s compliance
with the obligations set forth in this Section, Broker shall have the right to
audit Carrier's shipment activity with Broker from time to time any and all of
the areas noted by providing seven (7) days prior notice to Carrier of Broker’s
intention to audit such materials. Such audits shall enable Broker to review
Carrier's performance under Broker’s Carrier Excellence Program (the
“Excellence Program”). Carrier
acknowledges receiving a written copy of the Excellence Program which may be
revised by Broker from time to time.
Carrier further acknowledges that it understands that Broker utilizes
the Excellence Program as a basis for determining which Carriers best meet
Broker’s transportation needs. In those instances where the audit of Carrier
reveals inconsistencies in the information noted in Section 8.1above, Carrier
will be required to provide, in writing, within thirty (30) days, corrective
actions acceptable to Broker. This Agreement may be terminated if Carrier fails
to provide or implement acceptable corrective actions, or if Carrier
experiences inconsistencies in three (3) or more consecutive audits.
9.0 MISCELLANEOUS PROVISIONS.
9.1 Entire Agreement. This Agreement constitutes the entire
agreement and understanding between the parties and, when executed, shall
constitute a revocation of any earlier agreement between the parties. This Agreement, and the attached Appendices,
shall not be modified, altered, changed or amended in any respect unless in
writing and signed by both parties.
9.2 Savings Clause. If any part of this Agreement is declared
unlawful or unenforceable, the remainder of this Agreement shall remain in full
force and effect.
9.3 Failure to Enforce. Failure by either party to enforce strictly
any provision of this Agreement shall not be construed as waiver thereof or as
excusing the other party from future performance.
9.4 Force Majeure. The performance of the obligations of this
Agreement on the part of Carrier shall be excused by reason of closing of
public highways, closure of Federal Government
controlled airspace, changes in customer shipping and/or receiving
requirements, acts of terrorism, strikes or work stoppages, weather conditions
which make operations unsafe or impractical, Acts of God, war, or temporary or
permanent cessation of business by Broker within the Service Area.
9.5 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Michigan without giving
effect to any choice of law provision or rule (whether of the State of Michigan
or any other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of Michigan.
9.6 Notices. Any notice required or permitted to be given
by this Agreement shall be deemed conclusively to have been given when
deposited in the
9.7 Assignment. Neither this
Agreement nor the Services to be provided by Carrier hereunder may not be
assigned or subcontracted to any party, without the prior written consent of
Broker, except that this provision shall not prohibit change of ownership,
merger or other reorganization of a party so long as the party or its
successors remains bound by this Agreement.
9.8 Arbitration/Mediation.
9.8.1 Procedure. In the event of any dispute that may arise
between Broker and Carrier with regard to Services and performance hereunder,
and as a condition precedent to any other remedy herein, the Carrier agrees to
initially and as soon as practical, meet and confer with Broker in order to
reach, to the extent possible, voluntarily resolution of said dispute; and, in
the event that such voluntary efforts are not successful in resolving the
dispute, the parties agree to submit the matter to binding arbitration under
the auspices of the Transportation Lawyers Association ADR Council, Inc. The venue of any such mediation or arbitration
shall be in the State of
9.8.2 Limitations. The
parties agree and acknowledge that any claim(s) arising from or out of this
Agreement, otherwise subject to arbitration/mediation under Section 9.8.1,
shall be filed no later than one (1) year from the date of the accrual of the
breach or other circumstances giving rise to such claim. The failure by the other party to submit any
such claim in accordance with this provision shall thereupon extinguish any
right to such claim and the party asserting same shall waive any benefit
arising therefrom for any purpose.
9.9 Confidentiality. Carrier shall keep the contents of
this Agreement and any proprietary information, computer systems design,
customer information, or trade secrets of broker strictly confidential except
as may be required by applicable law or judicial process. Broker shall keep the
contents of this Agreement and all information pertaining to Carrier’s
negotiated pricing strictly confidential unless Broker is required to provide
Carrier invoice to Broker’s customer for the purposes of financial settlement,
or if Broker is required by law or judicial process or such information is publicly
known or obtained by Broker without any breach of any confidentially agreement.
Proprietary Information shall not be deemed to include information which: (i) at the time of disclosure is properly in
the public domain or thereafter properly becomes part of the public domain by
publication or otherwise through no act or omission of Carrier or Carrier’s
agents, (ii) may be observed, deduced or otherwise discovered through
information or equipment which is publicly available or accessible, or (iii) is
required to be disclosed by legal process; provided that Carrier informs the
requesting party of such requirement prior to disclosure and permits Broker to
attempt by appropriate legal means to limit such disclosure.
9.10 Bill
of Lading Terms. The terms, conditions, and
provisions of such bill of lading shall be subject and subordinate to the
terms, provisions, and conditions of this Agreement, and, in the event of a
conflict between the terms, conditions, and provisions of such bill of lading
and of this Agreement, the terms, conditions, and provisions of this Agreement
shall govern. In addition, any provisions in any such bill of lading
purporting to make the underlying transportation subject to the terms of any of
Carrier’s tariffs/schedules/service guides or other similar documents are
specifically made inapplicable to shipments hereunder.
10.0 TERM
OF AGREEMENT
10.1 Initial
Term. Except as otherwise provided
in Section 11, this Agreement shall continue in full force and effect for an
initial term of one (1) year (the “Initial Term”), except that either party may
cancel this Agreement without cause at any time upon thirty (30) days’ written
notice to the other party.
10.2 Renewal Term. Except as otherwise provided in Section 11,
this Agreement shall automatically renew for successive terms of one (1) year
(the “Renewal Term”) each after expiration of the initial term unless Carrier
or Broker, as the case may be, provided the other party notice of termination
in writing at least thirty (30) days prior to the expiration of the Initial
Term or any successive renewal term.
11.0 TERMINATION.
Except as otherwise provided in
Section 10, this Agreement may be terminated during the Initial Term or during
any Renewal Term hereof, as follows:
11.1 At any time, by mutual agreement of Carrier
and Broker;
11.2 By Carrier or Broker if the other party
breaches or fails to perform the contractual obligations imposed by this
Agreement.
11.3 This Agreement may be terminated by either
party at either party’s sole discretion, without any liability whatsoever, at
any time upon thirty (30) day prior written notice to the other party
12.0 INTELLECTUAL PROPERTY.
Broker has and will retain exclusive
ownership of and rights to all software and software products, including
enhancements, customizations and modifications developed by Broker for use in Services
to be performed hereunder. No license to
Carrier under any trademark, patent, copyright or other intellectual property
of Broker is granted or implied under this Agreement. Carrier shall not seek a patent or other
intellectual property rights on any Broker products (including its intellectual
property) or methods utilizing those products, without the prior written
consent of Broker. Carrier shall not reverse
engineer, disassemble or decompile any prototypes, software or other tangible
objects of the other party provided hereunder.
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