herein referred to as CARRIER, and Red River Logistics, LLC, with its principal office located at 204 South Main Street, #300, Keller, TX 76248, a Registered Property BROKER MC# 888332B, herein referred to as BROKER, and collectively referred to as Parties. CARRIER and BROKER agree to and contract as follows:
A. BROKER is a licensed transportation BROKER that controls the transportation of freight under its contractual arrangements with various consignors and consignees (the Customer);
B. CARRIER is authorized to operate in interstate and/or intrastate commerce and is qualified, competent and available to provide for the transportation services required by BROKER.
1. TERM. The Term of this Agreement shall be for one (1) year and shall automatically renew for successive one (1) year periods; provided, however, that this Agreement may be terminated at any time by giving thirty (30) days prior written notice.
2. CARRIER'S OPERATING AUTHORITY AND COMPLIANCE WITH LAW. CARRIER represents and warrants that it is duly and legally qualified to provide, as a contract CARRIER, the transportation services contemplated herein. CARRIER further represents and warrants that it does not have a conditional or unsatisfactory safety rating issued from the U.S. Department of Transportation, and further agrees to comply with all federal, state and local laws regarding the provision of the transportation services contemplated under this Agreement. In the event that CARRIER is requested by BROKER to transport any shipment required by the U.S. Department of Transportation to be placarded as a hazardous material, the parties agree that the additional provisions included in Appendix A shall apply for each such shipment.
3. PERFORMANCE OF SERVICES. CARRIER'S services under this Agreement are specifically designed to meet the distinct needs of BROKER under the specified rates and conditions set forth herein. CARRIER shall transport all shipments provided under this Agreement without delay, and all occurrences which would be probable or certain to cause delay shall be immediately communicate to BROKER by CARRIER. This Agreement does not grant CARRIER an exclusive right to perform the transportation related services for BROKER or its Customer.
4. RECEIPTS AND BILLS OF LADING. Each shipment hereunder shall be evidenced by a Uniform (Standard) Bill of Lading naming CARRIER as the transporting CARRIER. Upon delivery of each shipment made hereunder, CARRIER shall obtain a receipt showing the kind and quantity of product delivered to the consignee of such shipment at the destination specified by BROKER or the Customer, and CARRIER shall cause such receipt to be signed by the consignee. Any terms, conditions and provisions of the bill of lading, manifest or other form of receipt or contract shall be subject and subordinate to the terms, conditions and provisions of this Agreement. CARRIER shall notify BROKER immediately of any exception made on the bill of lading or delivery receipt.
5. CARRIER'S OPERATIONS. CARRIER shall, at its sole cost and expense:
(a) Furnish all equipment necessary or required for the performance of its obligations here under (the "Equipment");
(b) Pay all expenses related, in any way, with the use and operation of the Equipment;
(c) Maintain the Equipment in good repair, mechanical condition and appearance; and
(d) Utilize only competent, able and legally licensed personnel. CARRIER shall have full control of such personnel; shall perform the services hereunder as an independent contractor; and shall assume complete responsibility for all state and federal taxes, assessments, insurance (including, but not limited to, workers compensation, unemployment compensation, disability, pension and social security insurance) and any other financial obligations arising out of the transportation performed hereunder.
6. INDEMNITY. CARRIER shall defend, indemnify, and hold BROKER harmless from and against all loss, liability, damage, claim, fine, cost or expense, including reasonable attorneys fees, arising out of or in any way related to the performance or breach of this Agreement by CARRIER, its employees or independent contractors working for CARRIER (collectively, the Claims), including, but not limited to, Claims for or related to personal injury (including death), property damage and CARRIER'S possession, use, maintenance, custody or operation of the Equipment; provided, however, that CARRIER'S indemnification and hold harmless obligations under this paragraph will not apply to any portion of such claim attributable to the wrongful conduct of BROKER.
7. COMPLIANCE WITH LAWS. With the respect to the transportation services provided herein, CARRIER shall comply with all federal, state, and local laws, rules, regulations, and ordinances, including but not limited to, rules and regulations issued by the DOT and other agencies that have jurisdiction over transportation services to be performed, including Hours of Service Regulations. CARRIER shall defend, indemnify and hold BROKER and its customer's harmless from and against anyand all fines, penalties, and judgements, liabilities, expenses and costs of any nature arising or resulting from CARRIER'S failure to comply with all such laws, rules, regulations and ordinances.
8. INSURANCE. CARRIER agrees to provide any insurance coverages required by any government body for the types of transportation and related services specified in load confirmation communications received from BROKER. All insurance required by this Agreement must be written by an insurance company having a Bests rating of B+ VII or better and must be authorized to do business under the laws of the state(s) or province(s) in which CARRIER provides the transportation and related services as specified in load confirmation communications received from BROKER. CARRIER'S insurance shall be primary and required to respond and pay prior to any otheravailable coverage. CARRIER agrees that CARRIER, CARRIER'S insurer(s), and anyone claiming by, trough or under CARRIER shall have no claim, right of action, or right of subrogation against BROKER, its affiliates, or its Customer based on any loss or liability insured under the insurance stipulated herein. CARRIER represents and warrants that it will continuously fulfill the requirements of this Section throughout the duration of this Agreement. BROKER shall be notified in writing by CARRIER'S insurance company at least thirty (30) days prior to the cancellation, change or nonrenewal of the submitted insurance policies. CARRIER shall at all times during the term of this agreement have and maintain in full force and effect, at its expense
(a) Public liability and property damage insurance with a reputable and financially responsible insurance company insuring CARRIER in an amount not less than $1,000,000.00 (U.S. Dollars) per occurrence.
(b) All Risk Broad Form Motor Truck Cargo Legal Liability insurance in an amount not less than $100,000.00 (U.S. Dollars) per occurrence. Such insurance policy shall name CARRIER and BROKER as insureds and provide coverage to BROKER, the Customer or the owner and/or consignee for any loss, damage or delay related to any property coming into the possession of CARRIER under this Agreement. The coverage provided under the policy shall have no exclusions or restrictions of any type that would foreseeably preclude coverage relating to cargo claims.
(c) Statutory Workers Compensation Insurance and Employee Liability coverage in such amounts and in such form as required by applicable state law.
(d) CARRIER shall furnish to BROKER written certificates obtained from the insurance company showing that such insurance has been procured, is being properly maintained, the expiration date, and specifying that written notice of cancellation or modification of the policies 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 the applicable insurance policies.
9. FREIGHT LOSS, DAMAGE OR DELAY. CARRIER shall have the sole and exclusive care, custody and control of the Customer's property from the time it is picked up by CARRIER for transportation until delivery to the consignee accompanied by the appropriate receipts as specified in Paragraph 4. CARRIER assumes the liability of a common CARRIER for loss, delay, damage to or destruction of any and all of Customer's goods or property while under CARRIER'S care, custody or control. CARRIER shall pay to BROKER, or allow BROKER to deduct from the amount BROKER owes CARRIER, Customer's full actual loss for the kind and quantity of commodities so lost, delayed, damaged or destroyed. CARRIER shall be liable to BROKER for all economic loss, including consequential damages that are incurred by BROKER or the Customer for any freight loss, damage or delay claim. Payments by CARRIER to BROKER or its customer, pursuant to the provisions of this section, shall be made within thirty (30) days following receipt by CARRIER of BROKER'S or Customer's invoice and supporting documentation for the claim.
10. REFRIDGERATED UNITS. CARRIER understands that it may transport temperature controlled goods and represents and warrants that when such loads are accepted, CARRIER is experienced in transporting temperature controlled products and understands that delivery time requirements and temperature specifications are critical. CARRIER Moving Perishables - CARRIER warrants that the CARRIER will inspect or hire a service representative to inspect a vehicles 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. 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. The CARRIER must provide their cargo insurance CARRIER with all records that relate to a loss and permit copies and abstracts to be made from them upon request. 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 Shipper;
(c) Claims notification procedures will be followed in accordance with procedure described in 49 C.F.R. 370.1-11.
11. TRAILER SEALS. CARRIER shall comply with shipper seal requirements communicated to CARRIER on any rate confirmation, bill of lading, or otherwise.
12. 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.
13. WAIVER OF CARRIER'S LIEN. CARRIER shall not withhold any goods of the Customer on account of any dispute as to rates or any alleged failure of BROKER to pay charges incurred under this Agreement. CARRIER is relying upon the general credit of BROKER and hereby waives and releases all liens which CARRIER might otherwise have to any goods of BROKER or its Customer in the possession or control of CARRIER.
14. PAYMENTS. CARRIER will charge and BROKER will pay for transportation services performed under this Agreement the rates and charges as shown on separate Rate Confirmation Sheets to be signed and agreed to by CARRIER and BROKER before each shipment made under this Agreement. CARRIER represents and warrants that there are no other applicable rates or charges except those established in this Agreement or in any Rate Confirmation Sheet signed by BROKER. Payment by BROKER will be made within thirty (30) days of receipt by BROKER of CARRIER'S freight bill, bill of lading, clear delivery receipt, and any other necessary billing documents enabling BROKER to ascertain that service has been provided at the agreed upon charge. In the event service is provided and it is subsequently discovered that there was no applicable rate in the existing Schedule of Rates or supplements, the parties agree that the rate paid by BROKER and collected by CARRIER shall be the agreed upon contract rate. CARRIER agrees that BROKER has the exclusive right to handle all billing of freight charges to the Customer for the transportation services provided herein, and, as such, CARRIER agrees to refrain from all collection efforts against the shipper, receiver, consignor, consignee or the Customer. CARRIER further agrees that BROKER has the discretionary right to offset any payments owed to CARRIER hereunder for liability incurred by CARRIER pursuant to Section 8 of this Agreement. BROKER reserves the right to reduce compensation to CARRIER when CARRIER fails to perform any of its obligations, including but not limited to on-time pickup, on-time delivery, pre-delivery shipper and/or consignee notifications, or required check calls. Bills must be received within 60 days of delivery. Any CARRIER invoices not received within 60 days of delivery will NOT be processed for payment.
15. CONFIDENTIALITY AND NON-SOLICITATION. Neither party may disclose the terms of this Agreement to a third party without the written consent of the other party except (1) as required by law or regulation; (2) disclosure is made to its parent, subsidiary or affiliate company; or (3) to facilitate rating or auditing of transportation charges by an authorized agent and such agent agrees to keep the terms of the Agreement confidential. CARRIER will not solicit traffic from any shipper, consignor, consignee or customer of BROKER where (1) the availability of such traffic first became known to CARRIER as a result of BROKER'S efforts, or (2) the traffic of the shipper, consignor, consignee or Customer of BROKER was first tendered to CARRIER by BROKER. If CARRIER breaches this Agreement and directly or indirectly solicits traffic from customer's of BROKER and obtains traffic from such customer during the term of this Agreement or for twelve (12) months thereafter, CARRIER shall be obligated to pay BROKER, for a period of fifteen (15) months thereafter, commission in the amount of fifteen percent (15%) of the transportation revenue resulting from traffic transported for the Customer, and CARRIER shall provide BROKER with all documentation requested by BROKER to verify such transportation revenue.
16. SUB-CONTRACT PROHIBITION. CARRIER specifically agrees that all freight tendered to it by BROKER shall be transported on equipment operated only under the authority of CARRIER, and that CARRIER shall not in any manner sub-contract, BROKER, or in any other form arrange for the freight to be transported by a third party without the prior written consent of BROKER. Any load found to be double-BROKERed will void this contract and no payment will be issued to CARRIER.
17. ASSIGNMENT/MODIFICATION/BENEFIT OF AGREEMENT. This Agreement may not be assigned or transferred in whole or in part, and supersedes all other agreements and all tariffs, rates, classifications and schedules published, filed or otherwise maintained by CARRIER. This Agreement shall be binding upon and ensure to the benefit of the parties hereto.
18. SEVERABILITY. In the event that the operation of any portion of this Agreement results in a violation of any law, the parties agree that such portion shall be severable and that the remaining provisions of this Agreement shall continue in full force and effect.
19. WAIVER. CARRIER and Shipper expressly waive any and all rights and remedies allowed under 49 U.S.C. 14101 to the extent that such rights and remedies conflict with this Agreement. Failure of BROKER to insist upon CARRIER'S performance under this Agreement or to exercise any right or privilege, shall not be a waiver of any BROKER'S rights or privileges herein.
20. CARRIER agrees that BROKER'S compensation, hereunder for its services, is confidential and need not be disclosed to CARRIER. CARRIER further agrees that it will not reveal to anyone the terms of the agreement, the pricing of transportation services, or any other detail of the business conducted between CARRIER and BROKER.
21. EXCLUSIVE USE OF TRAILER: CARRIER'S equipment shall be dedicated to BROKER'S exclusive use while transporting freight tendered by BROKER, unless the load is specifically requested by the BROKER and accepted by the CARRIER as a Partial load, as notated on the Rate Confirmation.
22. DISPUTE RESOLUTION. This Agreement shall be deemed to have been drawn in accordance with the statutes and laws of the State of Texas and in the event of any disagreement or dispute, the laws of this state shall apply and suit must be brought in this state.
23. NON-DISPARAGEMENT. For purposes of this Section, “disparage” shall mean ANY negative statements, reviews, comments, or feedback, whether written or oral, about Red River Logistics, LLC or services provided by Red River Logistics, LLC. CARRIER agrees that they will not disparage Red River Logistics, LLC, or post any negative statements, reviews, comments, or feedback about Red River Logistics, LLC or services provided to any third party whether orally or in any written publication or online forum, chat room, or message board, including but not limited to Facebook, Twitter, LinkedIn, Google and Yelp. CARRIER and BROKER agree that in the event it is established that CARRIER has failed to comply with this provision, liquidated damages of up to and including the agreed upon load rate shall be payable to Red River Logistics, LLC. In the case that CARRIER has not yet been paid for their contracted load, said damages will be deducted from their invoiced rate.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed in their respective names by their duly authorized representatives as of the date first above written.