terms & conditions
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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:
BOSS LOGISTICS, LLC - CUSTOMER TERMS AND CONDITIONS
THIS AGREEMENT (“Terms and Conditions”), is made and intended to be effective and shall apply to
(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
(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.
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.
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
(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.
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.
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.
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
(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.
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.
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:
(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.
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.
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.
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.
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.
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.
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).
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.
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.
Customer 'Terms and Conditions' archive:
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
BOSS LOGISTICS, LLC - broker/carrier agreement
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 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 common or contract carrier of property (except household goods) under contracts with shippers and receivers and/or brokers of general commodities, and shall transport said property under its own operating authority and subject to the terms of this Agreement, and makes the representations herein for the purpose of inducing BROKER to enter into this agreement;
WHEREAS, BROKER, to satisfy some of the freight transportation needs of its CUSTOMERS, desires to use the services of CARRIER 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:
1. SCOPE OF WORK AND AGREEMENT APPLICABILITY. BROKER hereby agrees to cause freight to be tendered to CARRIER, and CARRIER agrees to transport such freight, in one or more shipments, and CARRIER hereby agrees to pick up, transport, deliver and provide all such services as BROKER shall request on all freight tendered by BROKER to the extent of its ability to do so (the “Services”). 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. Except to the extent that CARRIER uses the services of "owner/operators" in the course of conducting its regular operations, CARRIER shall not, in any manner, sub-contract, broker or tender to any third party for transportation any freight tendered to CARRIER by BROKER for transportation pursuant to this agreement. Violation of this article shall be considered a material breach of this agreement. In addition to other remedies conferred by this Agreement, any violation of this article shall act as a bar to CARRIER’S right to collect any payment for any shipment handled in a manner which violates this article.
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 warrants and represents that it is in full compliance, and shall continuously maintain full and strict compliance, with all statutes, rules and regulations governing its operations pursuant to this Agreement, including but not limited to adherence to provisions of the Interstate Commerce Act and related laws, rules and regulations of the FMCSA, and all provisions of applicable state and local laws, rules and regulations to the extent they govern CARRIER'S operations. If shipments under this Agreement are tendered in California or will be transported on California highways and/or roadways, CARRIER or its agent certifies that any TRU equipment furnished will be in compliance with the in-use requirements of California’s TRU regulations. 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.
B. CARRIER does not have an “unsatisfactory”, “conditional”, ”marginal” or “unfit” safety rating issued by the FMCSA, and will notify BROKER in writing immediately if its safety rating is changed to “unsatisfactory”, “conditional”, “marginal” or “unfit”.
C. 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. 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.
D. All vehicles and equipment used for transportation services shall be clean, odor free, dry, leak proof 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, whether hazardous or non-hazardous. CARRIER further warrants that all motor vehicle equipment provided by CARRIER for the transportation of food grade products will comply with the requirements of The Sanitary Food Transportation Act, that no freight transported pursuant to this Agreement shall become, or shall be deemed to be adulterated or misbranded within the meaning of the Federal Food Drug and Cosmetic Act, the Federal Meat Inspection Act, or the Federal Poultry Products Inspection Act, 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.
E. 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. CARRIER, as an independent contractor, has sole and exclusive direction and control over the manner in which CARRIER and its employees, contractors or others perform Services. Such individuals shall be considered employees or representatives of CARRIER only and shall be subject to employment, discharge, discipline and control solely and exclusively by CARRIER, which shall be fully responsible for their acts.
F. 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, or, if there is no time specified, then within a reasonable time. 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.
G. 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 concerning the collection of any charges relating to transportation services accrued or accruing in connection with or as a consequence of this Agreement. CARRIER shall have no lien, and hereby expressly waives its right to any lien of any kind on any cargo, freight or other property of BROKER or any of BROKER’S CUSTOMERS. It is agreed that BROKER is acting as an independent contractor and not as the agent of any of its CUSTOMERS.
H. CARRIER is in full compliance, and shall maintain full and strict compliance during the term of this Agreement, with all applicable federal, state and local laws relating to the transportation of Hazardous Materials, (including the licensing and training of drivers), as defined in 49 C.F.R. part §172 et seq. and part §397 et seq. to the extent that any shipments tendered hereunder constitute Hazardous Materials. CARRIER will be responsible for any handling, clean-up or disposal and will indemnify and hold BROKER harmless from all claims, liabilities, losses, fines, legal fees and other expenses arising out of contact with, exposure to, or release of any Hazardous Materials or any remedial action required under applicable federal, state or local environmental laws, except for any such claims, liabilities, losses, or fines that result from BROKER’S negligence or willful acts or omissions.
I. The Parties will notify each other immediately if their Federal Operating Authority is revoked, suspended or rendered inactive for any reason; and/or if either Party is sold, or if there is a change in control of ownership of either Party, and/or any of their insurance required hereunder is threatened to be or is terminated, cancelled, suspended, or revoked for any reason.
5. BILLS OF LADING: CARRIER will issue and sign a standard, uniform straight Bill of Lading, or other receipt acceptable to BROKER and BROKER'S CUSTOMERS, upon acceptance of goods for transportation. Bills of Lading may be upon a form prepared and presented by BROKER’S CUSTOMERS. It is the signing of the Bill of Lading by CARRIER’S driver or other representative that constitutes “execution” of the Bill of Lading, not the preparation of that document. It is agreed that a shipper’s and/or consignor’s identification of BROKER’S name on a Bill of Lading shall be for the shipper’s/consignor’s convenience only, and such notation shall not affect or defeat BROKER’S status as a Property Broker or CARRIER’S status as a Motor Carrier. In the event that the terms and conditions of any Bill of Lading executed by CARRIER in connection with a shipment transported pursuant to this agreement shall conflict with the terms and conditions of this Agreement, the terms and conditions of this Agreement shall govern and take precedence.
6. INSURANCE. CARRIER shall at all times during the term of this Agreement have and maintain in full force and effect, Public Liability, Property Damage, Cargo, and Workers’ Compensation Insurance with reliable insurance companies acceptable to BROKER, and in the following minimum amounts:
A. Comprehensive Automobile Liability Insurance. Comprehensive Automobile Liability Insurance shall be with a combined single limit of $1,000,000.00.
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 shall be in amounts not less than:
(I) Bodily injury $1,000,000.00 per occurrence; $2,000.000.00 in the aggregate.
(II) Property damage $1,000,000.00 per occurrence; $2,000,000.00 in the aggregate.
D. Cargo Insurance. A non-schedule vehicle Cargo Insurance policy with per shipment minimum of $100,000.00 unless higher limits are specified, 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.
E. Additional Insured. BROKER shall be named as an "Additional Insured" on CARRIER’S Comprehensive Automobile Liability insurance and 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. In lieu of being named as an additional insured, BROKER may agree and 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.
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.
H. Self-Insurance. If CARRIER is self-insured, it shall provide evidence of such, including proof of acceptance of self-insurance status by the FMCSA or other governing agency.
I. 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.
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 detention, waiting time, accessorial, or other charges from CARRIER to BROKER unless otherwise provided for in a Rate Confirmation sheet from BROKER for a specific shipment. 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. 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.
(I) CARRIER shall invoice BROKER in BROKER’S name and deliver all such invoices to BROKER promptly following delivery of freight. CARRIER shall submit to BROKER all shipping documents within fifteen (15) days after delivery of each shipment transported pursuant to this Agreement and BROKER shall pay CARRIER for each shipment tendered pursuant to this Agreement the agreed compensation within thirty (30) days after receipt by BROKER of (a) if applicable, a written Rate Confirmation Sheet, duly signed by CARRIER, acknowledging a change in compensation for any specific shipment or shipments; and (b) CARRIER'S freight bill with attached original Bill of Lading (or a readable copy thereof), without exception or notation, signed by the consignee at point of delivery as proof of delivery of the shipment, on time, on schedule and in good order and condition. CARRIER compensation to be paid under this Agreement may be withheld by BROKER, in whole or in part, to satisfy claims for loss, damage or delay to shipments transported by CARRIER pursuant to this Agreement. Only if no Bill of Lading was provided at point of origin will a written and signed delivery receipt be acceptable as a substitute. The foregoing is a condition of payment.
(II) CARRIER shall provide proof of delivery to BROKER within twenty-four (24) hours of delivery or request.
(III) Invoices which are received by BROKER more than one hundred twenty (120) days after Services are performed will not be accepted for payment. Inquiries or claims for non-payment received by BROKER more than one hundred twenty (120) days after such invoices are due and payable will not be investigated, researched or paid.
8. LIABILITY FOR LOSS, DAMAGE OR DELAY
A. Common Carrier Liability. BROKER and BROKER’S CUSTOMERS specifically reserve all rights and remedies conferred by 49 U.S.C. § 14706, and this Agreement is subject to and governed by said statute. Except as otherwise specifically provided in this Agreement, CARRIER agrees that in the transportation of all goods hereunder, it assumes the same liability as that of a Common Carrier for full actual loss, subject to the provisions of 49 U.S.C. § 14706, ("Carmack Amendment") and 49 CFR Part 370 (claim regulations). Claims for loss, damage, injury, or delay shall be filed within nine (9) months from the date of loss or date when the shipment should reasonably have been delivered. BROKER may withhold as setoff any payment due to CARRIER pursuant to this Agreement, in whole or in part, to: satisfy advances made to or on behalf of CARRIER, to satisfy any debt owed to BROKER by CARRIER, or to satisfy any cargo damage claim which CARRIER has not paid or denied for a legally valid cause or reason within ninety (90) days of presentation of the claim. Such setoff is to be made in the sole discretion of BROKER.
B. Special Damages:
(I) CARRIER’S liability for freight loss and damage claims under this Section 8 shall include legal fees reasonably incurred by BROKER in the prosecution of such claims, the risk of which is expressly assumed by CARRIER.
(II) Notwithstanding the terms of 49 CFR 370.9, CARRIER shall pay, decline or make settlement offer in writing on all cargo loss or damage claims within ninety (90) days of receipt of the claim. Failure of CARRIER to pay, decline or offer settlement within this ninety (90) day period shall be deemed an admission by CARRIER of full liability for the amount.
C. Replacement Shipments. CARRIER acknowledges that BROKER may utilize other carriers to facilitate the movement of delayed shipments, or to ship replacement goods. If CARRIER fails to arrange to make timely delivery of any shipment, CARRIER shall liable to BROKER and its CUSTOMERS for all reasonable and necessary costs, charges, fees and expenses reasonably resulting from such delay.
D. Return of Damaged Shipments. CARRIER shall return all damaged shipments at CARRIER’S expense to the point of origin or, with BROKER'S direction, to other points as instructed by BROKER.
E. Time Limits; Claims for Loss or Damage. The time limit within which BROKER must file a claim against CARRIER shall be twelve (12) months from the date of delivery or within twelve (12) months of a reasonable time for delivery if a complete loss. All claims shall be paid, settled or disallowed by CARRIER within ninety (90) days of filing. Disallowances shall state a lawful reason for declining to accept responsibility for the claim, and shall be stated by the CARRIER, not its insurer.
F. Time Limits; Suits for Loss or Damage. The time limit within which BROKER must institute suit against CARRIER to recover on a claim shall be two years and a day from the date BROKER receives a written disallowance from CARRIER.
G. Suits; Expenses and Attorneys' Fees. If BROKER is successful in recovering a claim against CARRIER in a court of law or arbitration proceeding, BROKER shall be entitled to recover all of its expenses incurred in collecting its claim, including reasonable attorneys' fees, costs and interest at the legal rate from the date of delivery or scheduled delivery of the shipment.
H. Concealed Damage Claims. Claims based on a concealed loss or damage reported to CARRIER within two (2) business days of the date of delivery shall be treated by CARRIER as though an exception notation had been made on the delivery receipt at the time of delivery.
I. Damaged or Refused Shipments. CARRIER shall not dispose of damaged or rejected product without the prior written consent of BROKER or its CUSTOMER. BROKER or its CUSTOMER may determine within their sole discretion whether the goods may be salvaged, and if salvageable, the value of such salvage.
J. Shipper Load and Count. CARRIER shall not be liable for loss or damage on truckload shipments if trailer is loaded and sealed by SHIPPER and CARRIER has no opportunity to inspect or count contents of trailer, the trailer is delivered with original seal(s) intact, and there is no evidence indicating that the contents of the trailer were compromised while the trailer was in the CARRIER’S possession. However, in such event, CARRIER’S personnel shall notify BROKER and note on the Bill of Lading that they were not allowed or afforded an opportunity to view and/or examine the goods shipped. Failure of CARRIER to make such a notation shall create a rebuttable presumption that the goods were received by CARRIER in the correct quantity and in good condition.
K. Limitation of Liability. EXCEPT AS OTHERWISE PROVIDED, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOSS OF PROFITS OR PROSPECTIVE PROFITS (COLLECTIVELY, "DISCLAIMED DAMAGES"), WHETHER ARISING OUT OF OR ALLEGED TO HAVE ARISEN OUT OF BREACH OF THIS AGREEMENT; PROVIDED THAT EACH PARTY WILL REMAIN LIABLE TO THE OTHER PARTY TO THE EXTENT ANY DISCLAIMED DAMAGES ARE SUBJECT TO INDEMNIFICATION PROVISIONS PURSUANT TO PARAGRAPH 9.
L. Survival of Provisions. The provisions of this Paragraph shall survive cancellation, termination, or expiration of this Agreement.
9. INDEMNITY. CARRIER agrees to be responsible for, and to defend, indemnify and hold BROKER together with its customers, agents, servants, attorneys, insurers and reinsurers, successors and assigns, and each of them, jointly and severally, harmless of and from any and all claims, demands, actions and causes of action, suits at law and proceedings in equity, without limitation, of any nature, howsoever arising, including, but not limited to, all losses, damages [including, but not limited to: consequential, speculative, direct, indirect and punitive damages] personal injury, death, and/or loss or damage to cargo or other property, and/or claim for any such loss or occurrence, which may arise from or in connection with the operations performed or to be performed pursuant to this Agreement, without regard to fault or negligence on the part of CARRIER, including, but not limited to the following:
A. Any and all liability claims, demands or expenses, including attorney’s fees or other professional fees, directly or indirectly arising out of or related to the Services provided pursuant to this Agreement, initiated or advanced by any person;
B. Any liability, claims, demands or expenses (including attorney’s and other professional fees) for damage to property of BROKER, its CUSTOMERS or third parties, or personal injuries (including death) to BROKER or BROKER’S CUSTOMERS’ officers, directors, agents or employees or any other person, arising from or in conjunction with the CARRIER’S performance of Services pursuant to this Agreement;
C. Any and all claims made against BROKER, its agents, officers, directors or employees or BROKER’S CUSTOMERS, agents or employees by or on behalf of CARRIER’S employees, for salary or other compensation or payments resulting or claimed to have resulted, in whole or in part, from CARRIER Services;
D. Any and all penalties or fines of any character which may be sought to be enforced against BROKER or its CUSTOMERS by reason of an alleged violation by CARRIER, of any federal, state, provincial, or local law, rule or regulation; and
E. Any and all claims, demands, and suits by other carriers or intermediaries against BROKER or its CUSTOMERS seeking payment for transportation charges on shipments tendered to CARRIER.
F. The indemnifications contained in this Paragraph 9 shall NOT have application in instances when the claim, demand, liability or expense results directly from the sole negligence of BROKER.
G. The provisions of this Paragraph shall survive cancellation, termination, or expiration of this Agreement.
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. 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 BOSS 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 BOSS to execute and return. Notices to BOSS 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.D.(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 BOSS in accordance with earlier payment directions shall constitute full satisfaction of BOSS’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 BOSS 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.
E. 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 6 months following delivery of the last shipment transported by CARRIER under this Agreement, to a commission of fifteen percent (15%) 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.
(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 paragraph, the Parties agree that the remedy at law, including monetary damages, may be inadequate and that the Parties shall be entitled, in addition to any other remedy they may have, to an injunction restraining the violating Party from further violation of this Agreement in which case the prevailing Party shall be liable for all costs and expenses incurred, including but not limited to reasonable attorney’s fees.
G. Country of Origin: The limitations of liability for cargo loss and damage as well as other liabilities, arising out of the transportation of shipments, which originate outside the United States of America, may be subject to the laws of the country of origination.
H. Modification of Agreement: This Agreement and any attachments hereto shall not be modified, except by a supplemental mutual written agreement between CARRIER and BROKER.
(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.
J. 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.
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 extrinsic evidence such as a Bill of Lading may be introduced to reform this Agreement in any judicial or arbitration proceeding involving this Agreement. 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-Venue. This Agreement shall be governed by and construed in accordance with the Laws of the State of Ohio. Any legal action arising under or pursuant to this Agreement shall be brought and maintained only in courts located in Franklin County, Ohio.
O. Force Majeure. The performance of either or both Parties hereto shall be excused and abated if such is prevented or substantially impeded by any Act of God, the public enemy, the authority of law, natural disaster or other like event, for the duration of such event. The Party who is unable to perform because of such event shall give the other notice of same within twenty-four 24 hours of the occurrence of such event or its performance hereunder will not be excused.
P. Enforcement/Attorney’s Fees. In the event either Party incurs attorney's fees, costs or expenses in enforcing any of the provisions of this Agreement, or in exercising any right or remedy arising out of any breach of this Agreement by the other Party, the prevailing Party shall be entitled to an award of attorney's fees, costs and expenses against the defaulting Party.
Q. Equal Opportunity. In the performance of Service pursuant to this Agreement, the Parties hereto shall comply with the equal opportunity provisions as set forth in Federal Acquisition Regulation (FAR) § 52.222-26.
R. Compliance with Executive Order 13496 of January 30, 2009. Carrier agrees to comply with all provisions and related rules, regulations, and orders of the Secretary of Labor as set forth by Executive Order 13496 of January 30, 2009 during the term of this agreement.
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.