On this page:

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1. CUSTOMER TERMS AND CONDITIONS;

2. BROKER/CARRIER AGREEMENT revision 042024

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The following Customer 'Terms and Conditions' apply to all Shipments or loads scheduled, assigned, or tendered to Boss Logistics, LLC on or after February 6, 2019:

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BOSS LOGISTICS, LLC - CUSTOMER TERMS AND CONDITIONS

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THIS AGREEMENT (“Terms and Conditions”), is made and intended to be effective and shall apply to

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(I) all property/transportation brokerage services performed by Boss Logistics, LLC (“BROKER”) on behalf of each and every various customer, client, consignor, consignee, shipper, and/or other third party (hereinafter individually or collectively “CUSTOMER(S)”); which schedules, assigns, or tenders a shipment using the transportation brokerage services of BROKER which otherwise engages the BROKER to perform transportation brokerage services or any other services on CUSTOMER’s behalf and

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(II) any and all scheduled, assigned, shipments or loads tendered by CUSTOMER and for which BROKER and/or its Affiliates arrange for transport in their capacity as a property broker, unless and until these Terms and Conditions are altered or amended by the BROKER as provided herein.

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WHEREAS, BROKER is licensed by the Federal Motor Carrier Safety Administration (“FMSCA”) in Docket No. MC-830016B to engage in operations in interstate or foreign commerce as a broker as defined in 49 U.S.C.A § 13102, arranging for transportation of freight (except household goods), and as a broker arranges for transportation services for various customers, clients, consignors, consignees, shippers, and/or other third parties. BROKER is a ‘non-asset based’ transportation arranger or ‘agent’ of the CUSTOMER for the purpose of performing duties in connection with the transportation of cargo or freight. CUSTOMER understands and agrees that BROKER cannot produce or fill out the Bills of Lading and BROKER cannot be listed on the Bills of Lading as a carrier.

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CUSTOMER hereby expressly agrees to these Terms and Conditions, which no agent or employee of the CUSTOMER or BROKER may alter. These Terms and Conditions shall supersede all prior oral or written statements or documents made with respect to

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(I) the subject matter contained herein,

(II) all property/transportation brokerage services performed by BROKER on behalf of CUSTOMER, and

(III) any and all shipments or loads scheduled, assigned, or tendered by CUSTOMER and for which BROKER arranges for transport in its capacity as a property broker.

 

The terms and conditions contained herein shall also supersede any terms or conditions contained in any proposal, quotation, invoice, order acknowledgment, rate confirmation sheet, bill of lading, third party guidelines/expectations/interpretations, or other communication provided or not provided by CUSTOMER to the BROKER or any of the BROKER’s Affiliates. Any terms or conditions not specifically contained herein shall be inapplicable to any shipments scheduled, assigned, or tendered by the CUSTOMER.

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1. BROKER payment receiving terms are NET 30 days from invoice date. In the event that BROKER deems it necessary to utilize the services of a collection agency or attorney to collect any amounts due, CUSTOMER shall pay all collection costs, attorney fees, court costs, and any other fees associated with the collection of payment. Any payment which is past due shall be subject to an additional charge at the rate of 1½% per month of the average outstanding balance due, or the highest rate of interest permitted by applicable law, whichever is greater. CUSTOMER acknowledges a claim for damages does not relieve it for payment under the terms of this Agreement.

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2. CUSTOMER affirms that the financial condition of the CUSTOMER’s business is satisfactory and all financial obligations can be met within BROKER’s terms. CUSTOMER affirms that there are no open judgments, suits, or liens against the company, nor are there any pending judgments, suits, or liens that may affect the ability to comply with BROKER’s payment terms.

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3. BROKER shall arrange for the transportation of CUSTOMER’s freight in accordance with these Terms and Conditions and in compliance in all material respects with all federal, state and local laws and regulations relating to the brokerage of the freight covered by these Terms and Conditions. Notwithstanding the foregoing, the sole responsibility of BROKER shall be limited to arranging for, but not actually performing, transportation of CUSTOMER’s freight, which will include only

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(I) engaging licensed motor carriers to transport CUSTOMER’s freight,

(II) ensuring that the licensed motor carriers have all required permits, certifications, authorizations and insurance necessary to transport the freight, and

(III) using commercially reasonable efforts to ensure such motor carriers arrive at the pick-up location(s) and delivery location(s) in accordance with the estimated or proposed shipping schedule.

 

Without limiting the foregoing, BROKER will not act as or assume liability as a freight carrier, common carrier, contract carrier, motor carrier or freight forwarder, and BROKER will have no obligations to actually transport any freight on behalf of CUSTOMER.

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4. Shipments or loads valued in excess of $100,000.00 shall not be tendered to BROKER without first providing 48-hour written notification in order to give BROKER and contracted carrier the opportunity to arrange for increased insurance limits, or 'spike insurance'. Neither BROKER nor the contracted carrier shall assume financial liability for any losses exceeding $100,000.00 unless appropriate requirements and procedures have been followed and BROKER acknowledges and produces a confirmation of additional insurance. All shipments will be assumed to hold a maximum shipment or load value of $100,000.00 unless noted by CUSTOMER.

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5. The CUSTOMER is responsible for and warrants its compliance with all applicable laws, rules, and regulations relating to the packaging and shipment of its goods including but not limited to customs laws, import and export laws and governmental regulation of any county, city, state, municipality, province and country to, from, through or over which the shipment may be carried. CUSTOMER further warrants that to the extent required, it is registered and in compliance with the security plan and training requirements, and any amendments related thereto, relating to hazardous materials, 49 C.F.R. §172.701¬704, and 49 C.F.R. §172.800-804. CUSTOMER further warrants that it will immediately advise or notify BROKER or any of its Affiliates in the event that its registration and/or compliance with these regulations expires or is otherwise terminated. The CUSTOMER agrees to furnish such information and documentation as is necessary to establish its compliance with such laws, rules and regulations. BROKER assumes no liability to the CUSTOMER or to any other person or entity for any loss or expense due to the failure of the CUSTOMER to comply with this provision. Any individual or entity acting on behalf of the CUSTOMER in scheduling, assigning, or tendering shipments hereunder warrants that it has the right to act on behalf of the CUSTOMER and the right to legally bind CUSTOMER. CUSTOMER agrees to indemnify BROKER against any and all claims, damages, costs and expenses (including reasonable attorneys’ fees) incurred as a result of CUSTOMER's failure to comply with the provisions of this Section. BROKER is not liable for any loss, damage, decay, mis-delivery or non-delivery including, but not limited to, when caused by:

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(I) the act, default or omission of a carrier, the CUSTOMER or any other party who claims interest in the shipment, or

(II) the nature of the shipment or any defect therein, or

(III) a violation by the CUSTOMER of any provision of this Agreement, the bills of lading, the carrier's tariff(s), including, but not limited to, improper or insufficient packing, securing, marking or addressing, or

(IV) failure to observe any of the rules relating to shipments not acceptable for transportation or shipments acceptable only under certain conditions, or

(V) acts of God, perils of the air, public enemies, public authorities, acts or omissions of customs or quarantine officials, war, riots, strikes, labor disputes, shortages, weather conditions or mechanical delay or failure of vehicles, aircraft or other equipment, or

(VI) the acts or omissions of any person; or (vii) the selection of carrier(s) for a particular shipment.

 

CUSTOMER acknowledges that in order to provide competitive rates for the services, that the parties have agreed as a material term of this agreement that the burden of any loss or damage incurred as a result of BROKER’s alleged liability has been shifted to the CUSTOMER, and that in any event the maximum amount of BROKER’s liability is limited to the fees that BROKER has earned with respect to the subject shipment.

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6. Unless otherwise specifically noted, all transit times provided by BROKER are estimates only and do not include the day of pickup. UNLESS OTHERWISE AGREED TO BY BROKER IN WRITING, THERE IS NO GUARANTEED PICK-UP OR DELIVERY TIME ASSOCIATED WITH

 

(I) ANY PROPERTY/TRANSPORTATION BROKERAGE SERVICES PERFORMED BY BROKER ON BEHALF OF CUSTOMER OR

(II) ANY SHIPMENTS OR LOADS TENDERED BY CUSTOMER AND FOR WHICH BROKER ARRANGES FOR TRANSPORT IN THEIR CAPACITY AS A PROPERTY BROKER.

 

NOTWITHSTANDING THE FOREGOING, BROKER WILL USE COMMERCIALLY REASONABLE EFFORTS TO ENSURE THAT ANY SHIPMENTS OR LOADS BROKERED BY BROKER IS PICKED-UP AND DELIVERED BY THE RELEVANT CARRIER IN A TIMELY FASHION, BUT BROKER SHALL IN NO WAY BE HELD LIABLE FOR DELAYS IN PICK-UP OR DELIVERY OF ANY PARTICULAR SHIPMENTS OR LOADS. CUSTOMER HEREBY EXPRESSLY WAIVES ANY AND ALL CLAIMS AGAINST BROKER AS A RESULT OF LOSSES, DAMAGES, INJURIES, OR EXPENSES, INCURRED OR SUSTAINED BY THE CUSTOMER AND WHICH RELATE TO DELAYS IN PICK-UP AND DELAYS IN DELIVERY.

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7. Consistent with Section 3 above, it is understood and agreed that BROKER is not a freight carrier, common carrier, contract carrier, motor carrier or freight forwarder, and BROKER shall not be liable for any liability, damage, destruction, delay, decay, theft or other loss resulting from the transportation of CUSTOMER’s cargo or freight, including special damages, consequential damages or any expense whatsoever. CUSTOMER hereby expressly waives any and all claims against BROKER for any liability, damage, destruction, delay, decay, theft or other loss resulting from the transportation of CUSTOMER’s cargo or freight. The CUSTOMER shall be solely responsible for making all claims with all relevant freight carriers, common carriers, contract carriers, motor carriers and/or or freight forwarders for delivery, non-delivery, damage, destruction, delay, decay, theft or other loss, including special damages, resulting and/or relating to CUSTOMER’s cargo or freight. CUSTOMER specifically acknowledges that BROKER shall have no liability for negligent acts or omissions of BROKER’s employees, subcontractors, hired third parties, or carriers. Notwithstanding the foregoing, BROKER may, but shall not be obligated to, assist CUSTOMER in the filing and/or processing of claims with the applicable carriers. As a part of this, any claims assistance service provided by BROKER, CUSTOMER shall assist BROKER in this process by providing notice of the claim and all relevant documentation in an expedited and urgent fashion as to allow BROKER to adequately present such claims within the time limits required by law or contract.

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Claims will be processed in accordance with 49 C.F.R. § 370. Subject to the limitations contained herein and those set forth in any individual carrier’s governing General Rules Tariff, the liability for any damage, destruction, delay, decay, theft or other loss from any cause shall be determined in accordance with the Carmack Amendment, 49 U.S.C. § 14706. Notwithstanding the foregoing, if a shipment contains cargo or freight with a predetermined exception value, as determined by the selected carrier, or is otherwise subject to a released value rate, such limitation of liability will override the otherwise applicable liability coverage.

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Additionally, BROKER may, but shall not be obligated to, pay any claim filed by CUSTOMER. If BROKER, in its sole discretion, elects to pay a claim to CUSTOMER whether in full or in part, CUSTOMER shall assign its full rights and interest in the claim to BROKER in writing in a form reasonably satisfactory to BROKER so as to allow BROKER to subrogate the loss. If CUSTOMER refuses or fails to assign such claims rights and interest to BROKER following payment, the CUSTOMER shall be deemed to have automatically assigned such claims rights and interest upon receipt of the applicable payment.

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The filing of a claim does not relieve the responsible party for payment of freight charges. Freight payment in full is mandatory and necessary in order for BROKER to process a claim. CUSTOMER may not postpone, delay, or offset freight charges or other charges owed to BROKER by CUSTOMER against claims for any loss, delay, decay, damage, mis-delivery or non-delivery or other expenses. The BROKER shall have a lien on funds recovered through the processing of damage claims and reserves the right to apply recovery amounts to open past due and/or open invoices on CUSTOMER’s account with BROKER.

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8. Notwithstanding anything contained herein to the contrary, CUSTOMER and BROKER specifically agree that neither party shall be liable to the other party for incidental, consequential (including lost profits), punitive, exemplary or special damages in connection with these Terms and Conditions, performance or omission of performance hereunder or termination hereof, even if the party has been advised of the possibility of such damages and without regard to the nature of the claim or the underlying theory or cause of action (whether in contract, tort, or otherwise).

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9. These Terms and Conditions shall be construed in accordance with the laws of the State of Ohio, except where such laws are preempted by federal law. Any claim brought under these Terms and Conditions, as well as any claim arising out of the services performed by BROKER on behalf of CUSTOMER, shall be brought in the courts of the State of Ohio located in Hamilton County, Ohio or in the Federal Courts located in Hamilton County, Ohio, and by accepting the services of BROKER hereunder, CUSTOMER hereby irrevocably submits to the jurisdiction of said courts.

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10. These Terms and Conditions may be changed, waived, altered, amended, or modified at anytime by the BROKER. These Terms and Conditions may not be changed, waived or modified by the CUSTOMER unless in a written agreement signed by the BROKER. These Terms and Conditions set forth the entire agreement between the parties with respect to the subject matter herein, and any prior understanding, proposal, representation, or agreement between the parties shall be deemed to have merged into and/or have been replaced by the changed, waived, altered, amended, or modified Terms and Conditions. If any provision of these Terms and Conditions is deemed unenforceable by any court or competent jurisdiction, such provision shall be severed and the remaining provisions herein shall continue in full force and effect.

 

These Terms and Conditions shall be binding upon the successors and assignors of the respective parties. Current and archived Terms and Conditions can be accessed for review at www.bosslgx.com/terms or provided by BROKER upon written request by CUSTOMER. CUSTOMER acknowledges and shall automatically agree to BROKER’s Terms and Conditions and/or the changed, waived, altered, amended, or modified Terms and Conditions when any and all shipments or loads are tendered by CUSTOMER to BROKER or when any services are performed by BROKER for CUSTOMER.

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Customer 'Terms and Conditions' archive:

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2-6-2019 to Present: https://drive.google.com/file/d/1ksJaqb_CnRwr0qm08GfvDb98OsvfiZfW/view?usp=sharing

3-9-2017 Thru 2-5-2019: https://drive.google.com/file/d/1MDsbuvdtSEvXn88drIL3iwSly0dtcERA/view?usp=sharing

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BOSS LOGISTICS, LLC - broker/carrier agreement

 

THIS AGREEMENT (“Agreement”) is made and intended to be effective (MM/DD/YYYY) __________, by and between Boss Logistics, LLC, an Ohio Limited Liability Company, (“BROKER”) and (CARRIER name) ________________________________ (“CARRIER”).  For purposes of this Agreement, BROKER and CARRIER are sometimes referred to collectively as the “Parties”, or individually as “Party”. 
RECITALS
WHEREAS, BROKER is licensed by the Federal Motor Carrier Safety Administration (“FMSCA”) in Docket No. MC-830016B to engage in operations, in interstate or foreign commerce, as a broker as defined in 49 U.S.C. § 13102(2), arranging for transportation of freight (except household goods), and as a broker arranges transportation services for various consignors, consignees, motor carriers and/or other third parties (hereinafter individually or collectively “CUSTOMER(S)”); 
WHEREAS, CARRIER holds motor carrier operating authority from the FMCSA in Certificate No. MC-         and, or, Permit/Certificate No. DOT-             to engage in transportation as a carrier (as defined in 49 U.S.C. § 13102(3)) (except household goods) on behalf of shippers and receivers and/or brokers of general commodities; 
WHEREAS, BROKER, to satisfy some of the freight transportation needs of its CUSTOMERS, desires to broker freight to CARRIER under this Agreement, on a non-exclusive basis.
NOW, THEREFORE, for good and valuable consideration of the mutual covenants and undertakings herein, and subject to the terms and conditions hereinafter set forth, the Parties hereto warrant, covenant the Parties agree as follows:
AGREEMENT
1.  SCOPE OF WORK AND AGREEMENT APPLICABILITY. BROKER hereby agrees, from time to time, to offer for shipments, and CARRIER agrees to transport, in one or more shipments, such quantities of freight, cargo, commodities or other items as BROKER may offer, subject to CARRIER’s availability of suitable equipment.   CARRIER hereby agrees to pick up, transport, deliver and provide all such services as BROKER shall request on all freight offered by BROKER and to otherwise perform all of its duties and obligations outlined in this Agreement (the “Services”). Notwithstanding the foregoing, BROKER shall, under no circumstances, be obligated to tender any specific number of shipments to CARRIER.  CARRIER specifically warrants and agrees that all freight tendered to it by BROKER pursuant to this Agreement shall only be transported by CARRIER on, in or with equipment owned by CARRIER or leased to CARRIER under a lease having a duration of more than thirty (30) days and operating under CARRIER'S operating authorities.  CARRIER agrees that this Agreement applies to any load tendered directly to CARRIER by BROKER, as well as any load which CARRIER knows or should have known involved BROKER. 

2.  APPLICABILITY. Transportation Services pursuant to this Agreement shall be performed as described herein and in any appendix hereto between domestic U.S. and/or Canada origin and destination points. This Agreement shall not include shipments to or from Mexico except as otherwise set forth in a separate Appendix hereto.
3.  TERM OF AGREEMENT. The term of this Agreement shall be for a period of one (1) year (the “Initial Term”) and shall automatically renew for additional one (1) year periods (each one year period is hereinafter a “Renewal Term”) unless written notice of non-renewal is given by either Party at least thirty (30) days prior to the end of the Initial Term or any Renewal Term. This Agreement may be terminated by either Party at any time upon thirty (30) days written notice to the other.
4.  CARRIER WARRANTIES AND REPRESENTATIONS TO BROKER AND ITS CUSTOMERS.

A.  CARRIER is a registered as a motor carrier authorized to provide transportation of property under contracts with shippers and receivers and/or brokers of general commodities. At all times while this Agreement is in effect, CARRIER shall (i) maintain proper authority to provide the services contemplated herein, (ii) maintain a satisfactory U.S. DOT safety rating, or no rating, (iii) utilize only fully qualified personnel who have all of the appropriate licenses and certificates, including but not limited to a commercial driver’s license, and (iv) maintain its equipment in good order and in compliance with all applicable laws.  CARRIER will notify BROKER immediately if its Federal Operating Authority is revoked, suspended, or rendered inactive by the FMCSA for any reason, and/or if it is sold, or if there is a change in control of ownership. If CARRIER receives an “Unsatisfactory” or “Unfit” safety rating, or a rating is changed from “Satisfactory” to “Conditional” or from “Continue to Operate” to “Marginal”, CARRIER shall immediately notify BROKER and shall not transport any shipment hereunder without BROKER’s prior written consent.  The provisions of this Section 4(A) are intended to include safety rating designations which may replace those above, which are subject to change by the FMCSA at any time. CARRIER does not have an “unsatisfactory”, “conditional”, ”marginal” or “unfit” safety rating issued by the FMCSA.  Under no circumstances is CARRIER allowed to provide services under this contract if their safety rating falls to “unsatisfactory.”
B.  CARRIER is in, and shall maintain compliance during the term of this Agreement, with all applicable federal, state and local laws relating to the provision of its Services including, but not limited to: transportation of Hazardous Materials (including the licensing and training of HazMat qualified drivers), as defined in 49 C.F.R. §172.800, §173, and §397 et seq. to the extent that any shipments hereunder constitute Hazardous Materials; security regulations; owner/operator lease regulations; loading and securement of freight regulations; implementation and maintenance of driver safety regulations including, but not limited to, hiring, controlled substances and alcohol testing, and hours of service regulations; sanitation, temperature, and contamination requirements for transporting food, perishable, and other products, qualification and licensing and training of drivers; implementation and maintenance of equipment safety regulations; maintenance and control of the means and method of transportation including, but not limited to, performance of its drivers; all applicable insurance laws and regulations including but not limited to workers’ compensation.      
C.   At all times while this Agreement is in effect, CARRIER shall comply with all rules, regulations, and conditions pertaining to the transportation of food products, produce, drugs, and other perishable items, including, without limitation (collectively, “Food Safety Laws”): (i) the Food, Drug, and Cosmetic Act (“FDCA”) (21 U.S.C. Section 301, et seq., as amended, supplemented or superseded from time to time), (ii) the Food Safety Modernization Act of 2011 (“FSMA”) (21 USC Section 2201, et seq., as amended, supplemented or superseded from time to time), (iii) the Perishable Agricultural Commodities Act (“PACA”) (7 U.S.C. Section 499(a)), et seq., as amended, supplemented, or superseded from time to time), (iv) any and all state or local statutes or ordinances applicable to the transportation of food products, produce, drugs and other perishable items, and (v) any and all Federal and State administrative rules and regulations pertaining to the transportation of food products, produce, drugs and other perishable items, including, without limitation, Federal Regulations under or related to the FDCA, FSMA, PACA and/or state or local statues or ordinances.  
D.  Without limiting the foregoing, CARRIER shall fully and strictly comply with the FSMA Sanitary Transportation of Human and Animal Food Rule (“STF Rule”) (21 CFA Parts 1 and 11, as amended, supplemented or superseded from time to time).  In complying with the STF Rule, CARRIER shall be obligated to: (i) ensure that any and all equipment used complies with the specifications and/or temperature control requirements of any food shipment’ (ii) take measures to isolate, segregate and use packaging to prevent contamination of food products; (iii) ensure that any and all food items requiring temperature control are transported in compliance with such temperature requirements, which will include, without limitation, checking Bills of Lading, rate confirmation sheets, and/or shipping instructions to determine any temperature requirements, discussing and verifying whether a temperature requirement exists with the CUSTOMER and/or shipper./loader/dispatcher at origin, precooling equipment if necessary, setting any reefer or temperature control equipment to the proper temperature and setting, venting if needed, maintaining and servicing any and all temperature control equipment, and taking other appropriate measures to ensure temperature requirements are met; (iv) notify BROKER of any failure of temperature control equipment or another condition that would cause food items to become unsafe or adulterated (as defined in the STF Rule); (v) implement written procedures regarding temperature control, equipment, and sanitation; (vi) adequately train any and all drivers, employees and other transportation personnel regarding the handling and transporting of food products, produce and other perishable items; (vii) provide BROKER, upon request, with any and all original or electronic records related to the transportation of food products, produce, and other perishable items, which may include, without limitation, (A) training records and certificates demonstrating that CARRIER and its employees/drivers/personnel have been trained on compliance, (B) any and all documents related to temperature control and compliance, storage records, Bills of lading, and other records; (viii) provide BROKER, upon request, with any and all original or electronic records demonstrating that any trucks, trailers and/or equipment used by CARRIER to transport cargo have been adequately washed, cleaned and dried in a sanitary manner; and (ix) implement ongoing measures to ensure CARRIER is fully and strictly complying with the STF Rule.  BROKER WILL NOT BE HELD LIABLE FOR CARRIER’S FAILURE TO COMPLY WITH THIS SECTION 4(C) OR OTHERWISE FAIL TO ADHERE TO SHIPPER’S INSTRUCTIONS OR THE FSMA AND/OR STF FULE, and CARRIER shall indemnify and hold harmless BROKER for all losses, damages and expenses (including reasonable attorneys’ fees) BROKER may sustain or incur, including but not limited to claims for lost profits or plant shutdown fees, arising out of CARRIER’s noncompliance.
E.  If shipments under this Agreement are tendered in Canada, or for delivery to Canada, CARRIER warrants that it will not accept such shipments unless CARRIER is in full compliance with the laws of Canada.
F.  CARRIER shall transport the property, under its own operating authority and subject to the terms of this Agreement, and CARRIER will not trip-lease, lease, broker, re-broker, co-broker, subcontract, assign, interline, or transfer the transportation of shipments hereunder to any other persons or entity conducting business under a different operating authority, without prior written consent of BROKER. If CARRIER breaches this provision, BROKER shall have the right of paying the monies it owes CARRIER directly to the delivering carrier, in lieu of payment to CARRIER. In addition to the indemnity obligation in Section 9, CARRIER will be liable for consequential damages for violation of this provision.
G.  CARRIER will provide all necessary and fully qualified drivers, ensure that each driver is suitably trained for operation of vehicles and other equipment, procure all licenses, permits, authorizations and other governmental approvals necessary for the ownership and use of such vehicles, furnish at its sole expense all supplies, fuel, oil, tires, parts, service, maintenance and repair in connection with the use and operation of their vehicles and equipment and that may be required to keep the vehicles and equipment in good repair and mechanical condition, and bear all costs of providing the transportation service.
H.  CARRIER will provide, operate and maintain in satisfactory and safe working condition all motor vehicles, trailers and allied equipment necessary to perform transportation services pursuant to this Agreement. All vehicles and equipment used for transportation services shall be clean, odor free, dry, leakproof and free of contamination and infestation. No vehicle that transports goods for BROKER under this Agreement will ever have been knowingly used to transport refuse, garbage, trash or solid or liquid waste of any kind whatsoever.  Additionally, CARRIER will not supply equipment that has been used to transport hazardous wastes, solid or liquid, regardless of whether they meet the definition in 40 C.F.R. §261.1 et. seq., unless otherwise agreed to in writing by BROKER.   CARRIER further warrants that all motor vehicle equipment provided by CARRIER for the transportation of food grade products will comply with the requirements of STF Rule, that no freight transported pursuant to this Agreement shall become, or shall be deemed to be adulterated or misbranded within the meaning of all Food Safety Laws and the SFT Rule, as amended and as may be amended in the future, or any other federal, state or local law or regulation of similar kind or content, by reason of being or having been transported in or with motor vehicle equipment provided by CARRIER to transport freight tendered or arranged by BROKER, or as a consequence of any of CARRIER 's activities in furtherance of such transport and that none of the equipment provided for the transportation of food or food grade products has been or will be used for the transportation of any waste of any kind, garbage, hazardous materials or any other commodity that might adulterate or contaminate food, food products, animal feed or cosmetics.  No poison, pesticide, rodenticide or other toxic or hazardous commodity shall be transported in the same vehicle and at the same time as any shipment of food, foodstuffs, food products, commodities intended for human or animal consumption as food or food supplements or ingredients or cosmetics.  Should CARRIER violate this paragraph, or any other provision of this Agreement, it shall be liable for all claims occurring as a consequence thereof, without regard to fault or negligence on CARRIER’s part and without regard to whether or not any actual contamination to any such shipment occurred, and no salvage or salvage set off shall be allowed.  CARRIER will also ensure that, in connection with goods that are specified by BROKER or its CUSTOMER as requiring temperature, humidity or other climate control, all vehicles provided for transportation of such goods will be suitable for the purpose intended, and shall be operated in compliance with reefer units properly and regularly maintained. 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 three (3) years. 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 it 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.
I.  CARRIER shall place a certified, registered Electronic Logging Device (each an “ELD”) in each vehicle it utilizes to transport freight hereunder in compliance with the requirements of the ELD regulations set forth in Section 32301(b) of the Commercial Motor Vehicle Safety Enhancement Act, enacted as part of MAP-21 (Pub L. 112-141, 126 Stat. 405, 786-788, July 6, 2012), which are registered with the FMCSA on or before CARRIER is mandated by law to do so.  
J.  CARRIER shall not perform Services that would require CARRIER or any of its contractors, employees, or others to exceed or violate any applicable laws, rules or regulations.  Without limiting the foregoing, CARRIER shall comply with any and all laws related to the number of hours of driving or service per day or week as mandated by federal, state and relevant local laws.  BROKER shall not be liable in any event for CARRIER failing to comply with such driving or service hour restrictions.
K.  At all times while this Agreement is in effect, CARRIER shall be solely responsible for any and all management, governing, discipline, direction and control of its employees, owner/operators, and equipment with respect to operating within all applicable federal and state legal and regulatory requirements to ensure the safe operation of CARRIERS vehicles, drivers and facilities. At all times while this Agreement is in effect, CARRIER shall, at its expense, furnish all equipment, fuel, supplies, insurance, maintenance, and properly qualified personnel necessary to perform the services hereunder.  
L.  CARRIER has no knowledge of any threatened or pending interventions by the FMCSA under CSA 2010; nor is CARRIER subject to any investigation or disciplinary action by any state agency related to enforcement of safety laws and regulations.  
M.  In the event CARRIER accepts a load transporting any goods to, from, or through California, CARRIER CERTIFIES, REPRESENTS AND WARRANTS THAT IT HAS REPORTED ITS COMPLIANCE WITH THE TRUCK AND BUS REGULATION OF THE CALIFORNIA AIR RESOURCES BOARD (“CARB”) AND/OR IS, TOGETHER WITH ITS OWNER(S), AWARE OF THE TRUCK AND BUS REGULATION OF THE CARB AND IS IN COMPLIANCE WITH SUCH REGULATION BY USING THE ENGINE MODEL YEAR SCHEDULE. In the event perishable goods are transported under such load to, from, or through California, CARRIER CERTIFIES, REPRESENTS AND WARRANTS THAT ANY TRANSPORTATION REFRIGERATION UNIT (“TRU”) EQUIPMENT FURNISHED WILL BE IN COMPLIANCE WITH THE IN-USE REQUIREMENTS OF CALIFORNIA’S TRU REGULATIONS. CARRIER shall look to the Rate Confirmation Sheet for the necessary BROKER information to be furnished under California’s TRU regulations. 
N.  CARRIER’S Handling of Freight:
(i) CARRIER will transport all shipments tendered pursuant to this Agreement to the specified consignee at the specified destination at the time specified without delay, or, if there is no time specified, then within “reasonable dispatch.” CARRIER will notify BROKER of any actual or potential delay or of any incident or circumstances that will prevent or delay delivery to the consignee or shipping destination.  BROKER and CARRIER both agree and recognize that time is of the essence of this Agreement and that due to varying geographical origins and destinations together with the need for expeditious transportation, both Parties will commence performance under this Agreement immediately following the oral tender of a shipment to CARRIER by BROKER.  It is understood that all shipment handling requirements are those of BROKER’S CUSTOMERS and that CARRIER will comply with all such requirements.
(ii) Missed delivery appointments may result in the imposition of fees and penalties by BROKER’s CUSTOMERS, shippers or consignees of shipments for which CARRIER shall be liable.
(iii) CARRIER  is  responsible  at  the  time  of  loading  for  probing  any  product  designated  as  requiring temperature controls in transit and writing the temperature on the Bill of Lading or shipping receipt.   The temperature of the product is a material condition of this Agreement.  If the product temperature is more than two (2) degrees different from the required temperature stated on the tender documents, then the CARRIER shall refuse the shipment and immediately contact BROKER.
(iv)  CARRIER shall not withhold delivery of any freight in its possession due to any dispute with BROKER regarding freight charges or otherwise.  CARRIER hereby waives and releases all liens or other claims which it might otherwise have in and to any freight in its possession, whether under common law, or federal, state or local laws or regulations.
(v)  Once CARRIER accepts a load offered by BROKER, if CARRIER then fails to pick up the load or otherwise fails to cover the load, CARRIER agrees to reimburse BROKER such amounts as are necessary to compensate BROKER for its loss of revenue and/or the expense of covering the load by alternative means.  
(vi) Once a seal is placed on any particular load of cargo, under no circumstances shall CARRIER break any seal unless required by law enforcement.  If a seal is required to be removed by law enforcement, SHIPPER must be notified immediately and the bill of lading must be notated to reflect the removal, the reason for removal and to identify replacement of a new seal.  CARRIER expressly acknowledges and agrees that any load where a seal is broken in violation of this paragraph may be rejected in full or in part, without the need for proof of damage or adulteration, and CARRIER accepts and assumes responsibility for all cargo rejected as a result of a missing or broken seal.
O.  CARRIER hereby assigns to BROKER any and all rights held by CARRIER to bill any party to the Bill of Lading contract, and shall bill only BROKER for the Services herein. CARRIER agrees that BROKER’S CUSTOMERS are intended to be third party beneficiaries of this Agreement. CARRIER will not communicate, directly or indirectly, in any manner, with BROKER'S CUSTOMERS, consignors, consignees or any party other than BROKER regarding shipments transported by CARRIER hereunder.  Without limiting the foregoing, CARRIER shall not CARRIER will not communicate, directly or indirectly, in any manner, with third parties concerning the collection of any charges relating to transportation services accrued or accruing in connection with or as a consequence of this Agreement.  Consistent with Section 1 above, CARRIER specifically agrees that the covenants and restrictions contained in this Section 4(N) shall apply with respect to any load tendered directly to CARRIER by BROKER as well as with respect to any load which CARRIER knows or should have known involved BROKER.  
P.  CARRIER will notify BROKER if its assets are sold, or if there is a change in control or ownership of CARRIER, and/or any insurance policy required to be maintained by CARRIER hereunder is threatened to be or is terminated, cancelled, suspended, or revoked for any reason.
5.  SHIPPING DOCUMENTS.  All freight offered to CARRIER by BROKER pursuant to this Agreement shall be picked up at origin by CARRIER and transported, without delay, to the point of destination at the date and time specified by BROKER or CUSTOMER.  There shall be a bill of lading (the “Bill of Lading”), in compliance with 49 U.S.C. §80101 et seq., 49 C.F.R. §373.101 (and any amendments thereto), for each load transported by CARRIER hereunder, and the Bill of Lading shall be signed by the CUSTOMER, or shipper if the Customer is not the shipper, and consignee.  CARRIER shall be named as “carrier of record” on each Bill of Lading.  Delivery shall be made by CARRIER as specified in each Bill of Lading or other shipping document. Any terms of the Bill of Lading (including but not limited to payment terms) inconsistent with the terms of this Agreement shall be controlled by the terms of this Agreement.  CARRIER shall deliver a copy of a completed Bill of Lading, signed delivery receipt, and such other documentation as may be agreed to by the Parties within ten (10) days of the delivery date for each shipment.    Notwithstanding the foregoing, failure to issue a Bill of Lading, or sign a Bill of Lading acknowledging receipt of the freight by CARRIER, shall not affect the liability of CARRIER.
6.  INSURANCE.  CARRIER shall at all times during the term of this Agreement have and maintain in full force the following insurance policies, and shall otherwise comply with all other terms and conditions of this Section 6:
A.  Comprehensive Automobile Liability Insurance.  Comprehensive Automobile Liability Insurance (including hired and non-owned vehicles) with limit of $1,000,000.00 per occurrence covering (i) all motor vehicles used by CARRIER to transport freight hereunder and (ii) all of CARRIER’s drivers, employees, contractors, agents, representatives and assigns.
B.  Workers’ Compensation and Employment Liability Insurance.   Workers’ Compensation and Employment Liability Insurance shall afford: (i) Protection under all applicable Workers’ Compensation Laws, at limits of the state in which the work is to be performed or containing an all-state endorsement, and embracing a waiver of subrogation; and
C.  Comprehensive General Liability Insurance.   Comprehensive General Liability Insurance, including contractual liability coverage, with limits not less than: (i) Bodily injury $1,000,000.00 per occurrence; $2,000.000.00 in the aggregate; and (ii) Property damage $1,000,000.00 per occurrence; $2,000,000.00 in the aggregate.
D.  Motor Truck Cargo Insurance.  A non-schedule vehicle all risk motor truck cargo insurance policy, or a superior equivalent, with limits equal to or exceeding full value of the cargo under carriage, provided, that the limit shall never be lower than US $100,000.00 per shipment, together with: (i) Employee Infidelity.  CARRIER'S cargo insurance policies shall not exclude coverage for infidelity, fraud, dishonesty or criminal acts of CARRIER'S employees, officers or directors.  The insurance under this paragraph shall not limit CARRIER’s liability under Section 8 or 9 below.

E.  Additional Insured. BROKER shall be named as an "Additional Insured" on CARRIER’S Comprehensive Automobile Liability insurance and Motor Truck Cargo insurance policies, and said policies shall provide that: 
(i) BROKER shall not be obligated to pay premiums for any such insurance;
(ii) Such insurance shall be primary with respect to BROKER’S insurance;
(iii) Such insurance shall be applicable separately to each insured and shall cover claims, suits, actions or proceedings by each insured against any other insured.
F.  Certificates of Insurance. At the time of execution of this Agreement, CARRIER shall provide certificates of insurance evidencing the insurance coverage required under this Agreement. The certificates of insurance shall contain a clause providing that the insurer will not cancel or change coverage of the insurance without first providing BROKER thirty (30) days' prior written notice.  Additionally, CARRIER shall provide BROKER with an updated Certificate of Insurance any time such insurance is amended, modified, changed, renewed and/or replaced.  
G.  Insurance Policy Copies. Upon reasonable request of BROKER, CARRIER may deliver to BROKER full and complete copies of its insurance policies required under this Agreement, and CARRIER shall deliver to BROKER said actual, full copies of the insurance policies requested within five (5) business days following request by BROKER.
H.  No Representation as to Adequacy.  It is expressly understood that BROKER does not represent that the types or minimum limits of the insurance set forth herein are adequate to protect the BROKER'S interests, and do not otherwise constitute limits of liability. Deductible amounts under the foregoing policies shall be paid by CARRIER.
I.  Except for the higher coverage limits which may be specified above, the insurance policies shall comply with minimum requirements of the Federal Motor Carrier Safety Administration and any other applicable regulatory state agency. Nothing in this Agreement shall be construed to avoid or limit CARRIER’s liability due to any exclusion or deductible in any insurance policy. In the event the FMCSA shall require greater limits or different types of insurance than those specified above during the term of this Agreement, such increased limits or different types shall supersede the aforementioned limits and types and CARRIER shall obtain and maintain insurance with such increased limits.  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. CARRIER’s insurance shall be primary and required to respond and pay prior to any other available coverage.  CARRIER will notify BROKER immediately if any insurance required hereunder is threatened to be or is terminated, cancelled, suspended, or revoked for any reason.  
7.  COMPENSATION AND PAYMENT.
A.  Rate Agreement. With respect to all shipments tendered to CARRIER pursuant to this Agreement, compensation shall be paid to CARRIER solely and exclusively by BROKER; provided, however, that the Parties hereto may at any time agree, in writing, or orally, and subsequently confirmed by both Parties in writing, on a form incorporating all of the information of and similar in format to the Rate Confirmation sheet or such other form as the Parties may agree upon, change such compensation for any specific shipment or shipments. Such confirmation may be accomplished through the exchange of supplements to this Agreement executed by the Parties in counterparts being exchanged by fax, telecopier, or other electronic means agreed to by the Parties and acknowledged in a written supplement to this Agreement. Such Rate Confirmation sheets are supplements to this Agreement, not separate contracts or agreements unless CARRIER objects to the terms and rates of an individual Rate Confirmation within twenty-four (24) hours after receipt and prior to the pickup of the shipment(s) of freight set forth thereon, CARRIER shall be presumed to have agreed that the terms are fully and correctly stated. CARRIER shall use their best efforts to sign all Rate Confirmation sheets associated with the Services to be provided by CARRIER hereunder.  However, upon CARRIER picking up any load to be transported hereunder, CARRIER shall automatically be deemed to have agreed to and accepted the rate and supplemental terms specified in the associated Rate Confirmation sheet and be legally bound by this Agreement.  All such Rate Confirmations shall become incorporated as addenda to this Agreement, and BROKER and CARRIER agree to retain all such addenda for three (3) years. If BROKER and CARRIER fail to agree to a negotiated rate as described above, the rate paid by BROKER to CARRIER for the shipment(s) pursuant to this Agreement shall be one (1) US Dollar per loaded mile. CARRIER, from time to time, may request that BROKER make early payment of freight charges in exchange for a discount of the agreed rates, which separate agreement (“Quick Pay Agreement”) may be attached to and become part of this Agreement and the discounted payment shall become the negotiated rate. 
B.  Mileage and Accessorial Charges.   For each freight movement or shipment, the Parties may specify the mileage to apply for the purposes of computing transportation charges if a mileage rate schedule applies. Otherwise, the mileage according to the then current version of PC Miler will apply. There shall be no charge for waiting time or demurrage other than as provided for in this paragraph.  Under no circumstances shall BROKER become liable to CARRIER for loading, unloading, fuel surcharges, stop-off, truck-not-used, detention, waiting time, accessorial, or other charges, tariff rates, released rates or values, or tariff rules or circulars of CARRIER unless otherwise provided for in a Rate Confirmation sheet from BROKER for a specific shipment.  CARRIER specifically agrees that no released value classification or limitation of liability shall be applicable to any transportation Services provided by CARRIER pursuant to this Agreement.  CARRIER shall not be entitled to any payment for waiting time which was caused due to an Act of God, the public enemy, the authority of law, strikes or act of the CARRIER, or because CARRIER’S driver has run out of hours. Appointments for loading and unloading are to be made at no additional charge. Waiting time incurred on account of CARRIER’S failure to keep its scheduled appointment for pick up or delivery shall not be charged to BROKER or BROKER’S CUSTOMERS.  Loads shall be held for delivery and/or re-delivery at no additional charge.  Upon the request of the consignor and/or consignee of any shipment transported by CARRIER pursuant to this Agreement for CARRIER to load and/or unload any such shipment from CARRIER’S vehicle, CARRIER shall provide such loading and/or unloading service, at its own, sole, expense, unless otherwise provided for in a Rate Confirmation sheet from BROKER for a specific shipment.
C.  Fuel Surcharge. Consistent with Section 7(B) above, unless a separate and distinct fuel surcharge is specifically agreed to by BROKER, in writing, the quoted rate of CARRIER embraces any and all fuel surcharges or adjustments.
D.  Payment and Setoff.
(i) Subject to Section 7(D)(ii) below, the Parties agree that BROKER is the sole party responsible for payment of CARRIER's charges. Except as otherwise stated in this Section, failure of BROKER to collect payment from its CUSTOMERS shall exonerate BROKER of its obligation to pay CARRIER. CARRIER agrees to seek payment for freight charges from BROKER only and CARRIER shall be prohibited from contacting CUSTOMERS, shippers or consignees regarding payment for freight charges. Consistent with Section 1 above, CARRIER specifically agrees that the covenants and restrictions contained in the prior sentence shall apply with respect to any load tendered directly to CARRIER by BROKER as well as with respect to any load which CARRIER knows or should have known involved BROKER.  CARRIER automatically assigns to BROKER all its rights to collect freight charges from any and all shippers, consignees, or any responsible third party on receipt of payment of freight fees, whether arising under this Agreement, any Bill of Lading, or otherwise. Consistent with Section 5 above, within ten (10) days of the delivery date for each shipment, CARRIER agrees to submit to BROKER a written invoice for the transportation Services provided by it, and such invoice shall include a copy of the associated Bill of Lading, signed delivery receipt and other applicable shipping documents.  Each freight invoice shall also contain the trip or pro number assigned to each shipment by BROKER at the time it is offered.  Subject to Section 7(D)(ii) below, BROKER agrees to pay CARRIER in accordance with the agreed upon rates within thirty (30) days of receipt of the associated invoice, subject to the terms of this Agreement.  Notwithstanding anything to the contrary contained herein, BROKER shall have no liability to pay any invoices submitted by CARRIER more than 120 days after the date of delivery, and CARRIER waives any right to collect payment on invoices submitted more than 120 days following the date of delivery.  
(ii) Notwithstanding anything to the contrary contained elsewhere in this Agreement, BROKER shall have the right to set-off against the amounts payable to CARRIER under this Agreement or against any other amounts owed by BROKER to CARRIER, any and all claims amounts (even if alleged claims amounts), freight claims amounts (even if alleged), damages, losses, costs, interest (statutory or common law), liabilities of any kind, and/or expenses (including reasonable attorneys’ fees) incurred or sustained by BROKER and all CUSTOMERS or consignees and which arise out of or are related to: (i) any breach of any representation or warranty of CARRIER under this Agreement, (ii) any breach of this Agreement by CARRIER, (iii) any indemnification obligations of CARRIER under this Agreement, (iv) the negligence or intentional acts of CARRIER and its drivers, employees, agents, contractors, successors and assigns, (v) the failure by CARRIER to deliver any freight transported hereunder in accordance with the delivery schedule provided by BROKER or listed in any associated rate confirmation sheet, (vi) delays in shipment or losses to goods caused by CARRIER’s Services hereunder, and (vi) freight claims or other claims which relate to freight transported hereunder, including, without limitation, any rejected freight due to any seal being broken or removed in violation of Section 4(M)(VI) above.  Without limiting the foregoing, BROKER shall be entitled to exercise BROKER’s set-off rights outlined in this Section 7(D)(ii) and to withhold freight fees payable to CARRIER for any and all loads of freight transported by CARRIER hereunder to the extent that BROKER is notified by a CUSTOMER that a freight claim is pending or to the extent that BROKER has other reason to believe a freight claim will be filed for damages to cargo transported by CARRIER, regardless of whether BROKER has actually verified the validity or invalidity of any said claim.  For clarification purposes only, BROKER may exercise its set-off rights hereunder against amounts payable to CARRIER for any and all loads transported by CARRIER under this Agreement, regardless of whether the damages for which BROKER is exercising set-off arise from the particular load or not.  BROKER’s right of set-off shall be in addition to, and not in substitution of, any other right BROKER shall have under this Agreement, or at law or in equity.
8.  LIABILITY FOR LOSS, DAMAGE OR DELAY
A. For purposes of this Agreement, the term “Cargo Claimant” shall mean collectively, (i), BROKER, (ii) BROKER’s CUSTOMERS or shippers, (iii) consignors, (iv) consignees, and/or (v) any third party having a beneficial interest with respect to goods, commodities, cargo or freight transported in connection with this Agreement.
B.  CARRIER shall be liable to all Cargo Claimants as a carrier under 49 USC 14706, et seq., (the “Carmack Amendment”) for the Full Actual Loss resulting from the transportation of all goods, commodities, cargo, or freight in connection with this Agreement while under the CARRIER’s care, custody, or control, or while such goods, commodities, cargo or freight are in the care, custody, or control of any third party engaged by CARRIER to transport the same in violation of this Agreement.  The liability for Full Actual Loss shall include liability with respect to any seal broken in violation of Section 4(M)(VI) above.  Except as may be limited under Section 8(c) below, for purposes of this Agreement, the term “Full Actual Loss” shall mean: (i) the full, retail invoice price charged by the shipper or cargo owner to the receiver or purchaser for the kind and quantity of product lost, damaged or destroyed, or in the event that the cargo is not being sold, the replacement costs of the kind and quantity of the product, lost, damaged or destroyed which is documented by the Cargo Claimant; (ii) plus any and all damages, costs, expenses (including, without limitation, reasonable attorneys’ fees, if applicable) or other losses suffered or incurred by the Cargo Claimant of any nature with respect to the load, including, without limitation, lost profits, plant shutdown fees, equipment rental fees, transloading or cross-docking fees, crane costs, penalties, fines, freight costs associated with continued delivery, re-delivery or replacement shipments, and other consequential damages, incidental damages, or other damages of any kind; (iii) plus any amounts charged to BROKER or suffered by the Cargo Claimant as a result of any delays in delivery; (iv) plus any and all freight charges (unless included in the invoice price) included in the claim by the Cargo Claimant; (v) plus any and all costs or expenses incurred by the Cargo Claimant in connection with salvaging cargo which are outlined in Section 8(E)(iv) below; and (vi) less any net salvage proceeds actually received, if any. Without limiting the foregoing, the liability standard under this Section 8 shall be determined under the Carmack Amendment in all instances, regardless of whether the goods being transported are considered “exempt” or “non-exempt” commodities under the law.
C.  To the extent that any Cargo Claimant agrees to a limitation of liability for losses to cargo, such limitation shall be applicable to CARRIER.  No limitation of liability will apply as to delay.  
D.  CARRIER will have no lien upon and hereby waives any and all rights to assess any lien upon any cargo, or portion thereof, transported in connection with this Agreement.
E.  Except as set forth below in this Section 8(E), CARRIER agrees that the provisions contained in 49 CFR Part 370, shall govern the processing of claims for loss, damage, theft, delay or other loss with respect to property and the processing of salvage.  
(i) Without limiting the foregoing, CARRIER has thirty (30) days from the date any claim is received to acknowledge such claim, and following acknowledgement, CARRIER has an additional ninety (90) days to either pay, decline or make settlement offer in writing on all claims. Failure of CARRIER to pay, decline or offer settlement within the period listed above shall be deemed admission by CARRIER of full liability for the amount claimed and a material breach of this Agreement.  
(ii) Notwithstanding the terms of the Carmack Amendment, or any laws, rules, or regulations promulgated in connection therewith, including, without limitation 49 CFR Part 370, CARRIER agrees to promptly handle and resolve all claims which are submitted either by a Cargo Claimant or BROKER.  CARRIER acknowledges that BROKER may file or process cargo claims against CARRIER on behalf of other Cargo Claimants, and CARRIER agrees to process any and all cargo claims filed by BROKER on behalf of a third-party Cargo Claimant as if BROKER were the party holding any and all cargo claims rights, except that any release or settlement agreements shall be signed by and the payment of any applicable Full Loss Amounts shall be made to the applicable party holding cargo claims rights.  This shall include the right of BROKER to file the applicable cargo claims with CARRIER and its insurance providers, the right of BROKER to facilitate communications with CARRIER and its insurance, to direct the salvage process, and to otherwise direct the processing of the claim on behalf of the Cargo Claimant. CARRIER agrees to require its insurance company to communicate with BROKER, its attorneys and other representatives, on all claims filed by BROKER on behalf of a third-party Cargo Claimant to the same extent as if BROKER were the party holding the applicable claims rights, but subject to the payor’s rights to require that the party holding the claims rights sign a settlement or release agreement and accept the payment.  
(iii) CARRIER shall immediately notify BROKER of any cargo damage, shortage/loss, theft or delay.  Failure to comply with this notice provision shall void any limitation of liability and cause CARRIER to be responsible for the Full Actual Loss resulting from shipments in connection herewith, without regard to a Cargo Claimant’s ability to mitigate damages.  
(iv) The determination regarding the salvageability of any damaged cargo shall be determined by the Cargo Claimant, or BROKER if BROKER’s is facilitating the claim under Section 8(E)(ii) above, in its sole discretion, and CARRIER shall be liable for all costs and expenses associated with the mitigation of damages, including, without limitation, any inspection costs; storage or warehousing costs; preparation of the cargo for reshipping; and the reshipping, if applicable.  CARRIER shall not sell, or attempt to sell, any cargo, goods or other freight for salvage, or otherwise without, the prior written authorization of the Cargo Claimant, or BROKER if BROKER is facilitating the claim under Section 8(E)(ii) above, which may be withheld in the Cargo Claimant’s or BROKER’s sole discretion.  For any damaged product which the Cargo Claimant, or BROKER if BROKER is facilitating the claim under Section 8(E)(ii) above, permits CARRIER to resell, the Cargo Claimant, or BROKER under Section 8(E)(ii) will have the right to require that CARRIER remove all identifying marks and labels on such product.  In the event that BROKER’s CUSTOMER, the shipper, consignor, consignee, receiver, cargo owner, or any other Cargo Claimant other than BROKER has required BROKER to waive rights of salvage or resale, CARRIER hereby expressly waives any and all rights of salvage or resale of the subject freight to the same extent as waived by BROKER.
(v) Claims based on concealed loss/damage reported to CARRIER by BROKER within ten (10) business days of the date of delivery will be treated as though an exception notation had been made on the delivery receipt at the time of delivery.
(vi) It is the obligation of CARRIER to properly inspect cargo upon the discovery of damage.  In the event CARRIER fails to inspect the cargo within five (5) business days of the date CARRIER becomes aware of the damage, or upon receipt of the goods to be returned to the consignor or shipper because of the damage, whichever is earlier, CARRIER waives its rights to inspect the goods and agrees to be bound by the fact presented by claimant.
(vii) If the cargo is able to be repaired and restored to good marketable condition, CARRIER will be liable for the costs of repairs including the costs of all labor and other necessary expenses, not to exceed the actual value of the kind and quality of product damage.
F.  BROKER shall have no liability for any loss or damage to any goods transported by CARRIER on shipments offered by BROKER.  CARRIER shall be solely and exclusively responsible for loss or damage to, or delay in delivery of, goods and shipments transported by CARRIER under this Agreement.  Despite the fact that BROKER is not liable for cargo loss, damage or delay claims, BROKER shall have the right to pay such claim(s) to the party holding cargo claims rights, in which case CARRIER shall then be responsible to make payment to BROKER for the Full Loss Value as though BROKER (i) were the party holding the cargo claims rights or (ii) had received an assignment of such claim(s) from the party holding such rights.
9.  INDEMNITY. CARRIER shall indemnify and hold harmless BROKER and all CUSOMERS, shippers and consignees from any and all causes of action, claims (including claims made by third parties and including claims for personal injuries or death), suits (including suits by third parties and including claims for personal injuries or death), compensation, demands, damages, consequential and/or incidental damages, losses, costs, interest (statutory or common law), liabilities of any kind, and/or expenses (including reasonable attorneys’ fees) incurred or sustained by BROKER and all CUSTOMERS, shippers or consignees and which arise out of or are related to: (i) the failure of CARRIER, and its drivers, employees, agents, contractors, successors and assigns to comply with the provisions of this Agreement; (ii) any breach of this Agreement by CARRIER and its drivers, employees, agents, contractors, successors and assigns; (iii) the performance or non-performance of CARRIER’s obligations under this Agreement by CARRIER and its drivers, employees, agents, contractors, successors and assigns; (iv) the negligence or intentional acts of CARRIER and its drivers, employees, agents, contractors, successors and assigns; (v) the failure by CARRIER or any of its drivers, employees, agents, contractors, successors and assigns to deliver any freight transported hereunder in accordance with the delivery schedule provided by BROKER or listed in any associated rate confirmation sheet; (vi) delays in shipment or losses to goods caused by CARRIER’s Services hereunder; and (vii) freight claims or other claims which relate to freight transported hereunder, including, without limitation, any rejected freight due to any seal being broken or removed in violation of Section 4(M)(vi) above.  The provisions of this paragraph shall survive cancellation, termination, or expiration of this Agreement.
10.  MISCELLANEOUS.
A.  Independent Contractor: It is understood and agreed that the relationship between BROKER and CARRIER is solely that of independent contractor and not as an agent, joint venturer, owner-operator or employee and that no employer/employee relationship exists, or is intended. CARRIER shall provide Services to BROKER as an independent contractor, not as an agent, joint venturer or employee. CARRIER shall make all arrangements it deems appropriate to provide sufficient, appropriate, personnel and motor vehicle equipment, which shall be dedicated to BROKER’S exclusive use while transporting freight tendered by BROKER, to provide the transportation Services contemplated by this Agreement. BROKER has no control of any kind over CARRIER, including but not limited to routing of freight, instruction to drivers, expenses, advances, equipment, confirmation, load securement, and driver location and nothing contained herein or on the website of BROKER shall be construed to be inconsistent with this provision. BROKER is not and will not be responsible for any debts, liabilities or obligations incurred by CARRIER in the performance of its business. CARRIER agrees to defend, indemnify and save BROKER and/or its CUSTOMERS harmless from any and all claims, demands, actions, causes of action and liabilities (actual, potential, threatened or pending) of any type or nature arising from or in connection with CARRIER’S transportation Services rendered pursuant to this Agreement, or otherwise arising or growing out of the operations and activities of CARRIER hereunder, as a CARRIER or otherwise. CARRIER assumes full responsibility for all commissions, salaries, insurance, taxes, pensions and benefits of CARRIER’S agents, contractors, sub-contractors and/or employees in connection with CARRIER’S performance pursuant to this Agreement.
B.  Non-Exclusive Agreement: CARRIER and BROKER acknowledge and agree that this Agreement does not bind the respective Parties to exclusive Services to each other. Either Party may enter into similar agreements with other carriers, brokers, or freight forwarders.
C.  Waiver of Provisions:  Failure of either Party to enforce a breach or waiver of any provision or term of this Agreement shall not be deemed to constitute a waiver of any subsequent failure or breach, and shall not affect or limit the right of either Party to thereafter enforce such a term or provision.
D.  Waiver of Rights.  This Agreement is for specified services pursuant to 49 U.S.C. §14101(b). To the extent that terms and conditions herein are inconsistent with Part (b), Subtitle IV, of Title 49 U.S.C. (ICC Termination Act of 1995), the Parties expressly waive any or all rights and remedies they may have under the Act. 
E.  BROKER Not Liable for Consequential Damages.  BROKER shall not be liable to CARRIER for incidental, special or consequential damages without BROKER receiving written notification of the risk of loss and the approximate financial amount and BROKER’s express written and signed agreement to assume such responsibility.
F.  CARRIER’s Option to Assign its Accounts Receivables: CARRIER may assign its accounts receivables under this Agreement to a third party. In order to so do however, CARRIER must:
(i) Notify BROKER in writing a minimum of thirty (30) days in advance of any change in the CARRIER’S direction for payment, including without limitation any assignment of CARRIER’S right to payments earned or to be earned under this Agreement. Notice of any such assignment by CARRIER must include a self- addressed, stamped, return acknowledgement for BROKER to execute and return. Notices to BROKER shall be sent to:
BOSS LOGISTICS, LLC
PO BOX 72840
NEWPORT, KY 41072-0840

(ii) Inform any assignee of the terms of this Agreement, including these terms regarding notice requirements. 
(iii) CARRIER acknowledges and agrees that any change in CARRIER’S directions for payment or notice of assignment sent to any BOSS employee or location other than as set forth in Section 10(F)(i) is inadequate and defective. During the transition period from one set of CARRIER’S payment directions to another, CARRIER agrees that payments inadvertently made by BROKER in accordance with earlier payment directions shall constitute full satisfaction of BROKER’S payment obligations under this Agreement. CARRIER further agrees that in such event it is the responsibility of the CARRIER to forward, or cause to be forwarded, the payment to the correct party. CARRIER shall indemnify, defend and hold harmless BROKER from and against all liability, loss, damages, claims, suits or expenses, including without limitation reasonable attorney fees, caused by or arising from any failure on the part of the CARRIER or any assignee to comply with the terms of this section.
G.  No Back Solicitation/Transportation:
(i) CARRIER shall not knowingly solicit any shipper or payor of freight and transport or arrange for the transportation of such freight directly for such shipper or payor of freight who first was introduced by BROKER to CARRIER. This restrictive covenant relates only to the type traffic and in traffic lanes or territories served by CARRIER on behalf of BROKER and relates only to CUSTOMERS of BROKER with whom CARRIER had substantial business contact during the 12 months immediately preceding termination of this Agreement. The term of the prohibited solicitation and transportation shall be during the term of this Agreement and for one (1) year thereafter.
(ii) In the event of breach of this provision, BROKER shall be entitled, for a period of 12 months following delivery of the last shipment transported by CARRIER under this Agreement, to a commission of thirty percent (30%) of the gross transportation revenue (as evidenced by freight bills) received by CARRIER for the transportation of said freight as liquidated damages. Additionally, BROKER may seek injunctive relief and in the event it is successful, CARRIER shall be liable for all costs and expenses incurred by BROKER, including, but not limited to, reasonable attorney's fees.
H.  Confidentiality:
(i) In addition to Confidential Information protected by law, statutory or otherwise, the Parties agree that all financial information of BROKER and that of its CUSTOMERS, including but not limited to freight and brokerage rates, amounts received for brokerage services, amounts of freight charges collected, freight volume requirements, as well as personal customer information, customer shipping or other logistics requirements shared or learned between the Parties and their CUSTOMERS, shall be treated as Confidential, and shall not be disclosed or used for any reason without prior written consent.
(ii) In the event of violation of this Confidentiality provisions of Section 10(f)(i) above, the Parties agree that the remedy at law, including monetary damages, may be inadequate and that the Parties shall be entitled, in addition to any other remedy they may have, to an injunction restraining the violating Party from further violation of this Agreement in which case the prevailing Party shall be liable for all costs and expenses incurred, including but not limited to reasonable attorney’s fees.
I. Modification of Agreement: This Agreement and any attachments hereto shall not be modified, except by a supplemental mutual written agreement between CARRIER and BROKER.
J.  Notices:
(i) All notices provided or required by this Agreement, shall be made in writing and delivered, return receipt requested, to the person or persons and at the addresses shown herein with postage prepaid; or by confirmed (electronically acknowledged on paper) fax.
(ii) The Parties shall promptly notify each other of any claim that is asserted against either of them by anyone arising out of the Parties performance of this Agreement.
(iii) Notices sent as required hereunder, to the addresses shown in this Agreement shall be deemed sent to the correct address, unless the Parties are notified in writing of any changes in address.
K.  Severance/Survival:  In the event any of the terms of this Agreement are determined to be invalid or unenforceable, no other terms shall be affected and the unaffected terms shall remain valid and enforceable as written. The representations, rights and obligations of the Parties hereunder shall survive termination of this Agreement for any reason.
L.  Counterparts:  This Agreement may be executed in any number of counterparts each of which shall be deemed to be a duplicate original hereof.
M.  Entire Agreement:  This Agreement, together with any Appendices which are a part hereof, contains the entire understanding of the Parties and supersedes all verbal or written prior agreements, arrangements, and understandings of the Parties relating to the subject matter stated herein. The Parties further intend that this Agreement constitutes the complete and exclusive statement of its Terms, and that no terms or conditions not contained herein shall be applicable.  In the event of any conflict between the terms and conditions of any Bill of Lading (including but not limited to payment terms), tariff, or other shipping document and terms of this Agreement, the Parties agree that such terms and conditions shall not apply and that this Agreement shall prevail.  BROKER may, from time to time modify or amend the terms or conditions of this Agreement which BROKER shall make said available to CARRIER upon CARRIER’s request. Said modification or amendment shall become effective immediately. CARRIER's continued acceptance of freight tendered by BROKER or BROKER’S CUSTOMERS thereafter shall constitute acceptance by CARRIER of such modification or amendment to this Agreement. Amendments or modification to this Agreement shall be in writing and, except as otherwise provided for in this paragraph, must be signed by a duly authorized representative of each Party hereto. CARRIER warrants and represents that it fully understands its right to review all aspects of this Agreement with an attorney of its choice, that CARRIER has had the opportunity to consult with an attorney of its choice, that CARRIER has carefully read and fully understands all the provisions of this Agreement and that CARRIER is freely, knowingly, and voluntarily entering into this Agreement. Accordingly, any rule of law or any legal decision that would require interpretation of any claimed ambiguities in this Agreement against the Party that drafted it has no application and is expressly waived. Further, the Parties warrant that the individuals executing this Agreement on their behalf are authorized to do so.
N.  Governing Law and Venue.  In the event of a dispute arising out of this Agreement and the services provided by the Parties hereunder, including but not limited to Federal or State statutory claims, the Parties agree the venue for any such action shall be exclusively within the federal and state courts located in Hamilton County, Ohio, and by executing this Agreement the Parties expressly submit to the jurisdiction of said courts located in Hamilton County, Ohio. Unless preempted or controlled by federal transportation law and regulations, the laws of the State of Ohio shall be controlling regarding all disputes arising out of this Agreement and the services provided by each Party hereunder.
O.  Hostage Loads: “Hostage Load” is defined as the CARRIER’S refusal to immediately release or produce Freight upon demand by BROKER or BROKER’S CUSTOMERS, deliver Freight at the scheduled time and place of delivery, provide BROKER with information on the location of Freight, or other unauthorized exertion of control over Freight for payment or increase in charges to be paid to CARRIER. In the event of a Hostage Load, CARRIER agrees to pay BROKER the greater of $5,000 for each day that CARRIER holds the Hostage Load or the actual amount that BROKER incurs to resolve the unauthorized retention of the Hostage Load. CARRIER agrees that such amount constitutes reasonable liquidated damages for damage to BROKER’S reputation with CUSTOMERS and others. In the event CARRIER files any bankruptcy proceeding or has any bankruptcy proceeding filed against it, then BROKER, CUSTOMER, Shipper and/or the Consignee shall be entitled to immediately enter upon any owned or leased property of CARRIER, including a trailer, where the shipment or cargo belonging to the Shipper or Consignee may be found, and shall be entitled to take possession of such shipment or cargo.
P.  CARRIER will not, and will be responsible for ensuring that CARRIER’S members, managers, shareholders, directors, officers, agents, employees, representatives, contractors, subcontractors, successors and assigns (the “Carrier Representatives”)  do not, in any communications with any third party, criticize, ridicule, or make any statement which disparages or is derogatory regarding BROKER or any of its members, managers, owners, officers, employees, agents, representatives, successors and assigns.  In the event of a breach of this Section 10(P) by CARRIER or any of the CARRIER Representatives, in addition to any other rights or remedies available to BROKER hereunder, at law, or in equity, BROKER shall be entitled to obtain temporary, preliminary, and permanent injunctive or other equitable relief against a threatened or actual breach by CARRIER or any of the CARRIER Representatives of this Section 10(P).  Additionally, CARRIER acknowledges and agrees that it will be difficult to quantify the damages suffered by the BROKER in the event of a breach of this Section 10(P) by CARRIER or any of the CARRIER Representatives, and therefore, CARRIER agrees that if CARRIER of any of the CARRIER Representatives is/are found to be in breach of this Section 10(P), CARRIER shall be liable to BROKER in the amount of $2,500.00 for each individual incident which is a breach hereof as liquidated damages.  
IN WITNESS WHEREOF, This Agreement shall become effective upon the execution hereof by the parties hereto.  CARRIER has carefully read and fully understands all the provisions of this Agreement and that CARRIER is freely, knowingly, and voluntarily entering into this Agreement intending to be legally bound by the entire Agreement, whether completed by CARRIER in part or in full or returned by CARRIER to BROKER in part or in full.