CONTRACT NO.: __________
DATED:
_________________
MOTOR CARRIER – FREIGHT FORWARDER CONTRACT
hereinafter referred to as FORWARDER, and _________________________________________
hereinafter referred to as CARRIER.
I. IDENTIFICATION OF PARTIES
WHEREAS:
(a) ATS
EXPRESS, INC. is a regulated Freight Forwarder of General Commodities pursuant
to 49 U.S.C. § 13903, authorized by Permit No. FF-1877-O-P to engage in
operations as a Freight Forwarder in connection with the transportation of
general commodities, except household goods, between points in the
(b) CARRIER
is a licensed Motor Carrier pursuant to 49 U.S.C. § 13902, authorized by
License No. MC-________________ to engage in operations in connection with the
transportation of general commodities, except household goods, between points
in the
NOW THEREFORE,
in consideration of the representation made herein, the parties agree as
follows:
II. TERMS
AND JURISDICTION OF THIS AGREEMENT
(a) This AGREEMENT shall be governed by
Title 49 of the United States Code and the Code of Federal Regulations. This
AGREEMENT is to become effective __________________,200_ , and shall remain in
effect for a period of one year from such date, and from year to year
thereafter, subject to the right of either party hereto to cancel or terminate
the AGREEMENT at any time upon not less than thirty (30) days written notice of
one party to the other.
III. CARRIER
OBLIGATIONS
(a) CARRIER shall issue a bill of lading for property it
receives for transportation and shall be liable to the person entitled to
recover under the bill of lading. The
liability imposed by this paragraph is for the actual loss or injury to the
property. Failure to issue a bill of
lading does not affect the liability of CARRIER. CARRIER’S liability shall be the same as a
carrier’s liability under 49 U.S.C. § 14706.
FORWARDER makes no representation that these goods move under any
limitation of liability or any released rates.
FORWARDER also makes no representation that a limitation of liability or
a released rate contained in FORWARDER’S agreement with its shipper will apply
to CARRIER’S liability. To the extent
that FORWARDER’S limitation of liability is deemed to extend to CARRIER,
CARRIER may apply such limitation. The
maximum liability of CARRIER shall be $25.00 per pound or $100,000 per
shipment, whichever is less.
(b) CARRIER
agrees to maintain cargo insurance in the amount of $100,000 to compensate
those parties entitled to recover under the preceding paragraph. CARRIER shall
cause its insurance carrier to forward forthwith to FORWARDER a standard
Certificate of Insurance, which Certificate shall require the insurance carrier
to give FORWARDER written notice thirty (30) days prior to the cancellation of
such cargo insurance.
(c) CARRIER’S
liability shall begin at the time cargo is loaded upon CARRIER’S equipment at
the point of origin, and continue until said cargo is delivered to the
designated consignee at destination, or to any intermediate stop-off party.
(d) CARRIER
shall perform this Agreement in compliance with all federal, state and local
laws relating to the transportation of freight.
CARRIER agrees to defend and hold harmless FORWARDER against any and all
loss or damage claims on each shipment transported by CARRIER pursuant to this
Agreement. CARRIER further agrees to
defend and hold harmless FORWARDER from all and any liability, costs and
damages to persons and/or property arising out of CARRIER’S operations
hereunder, including but not limited to all road, fuel, and other taxes, fees
or permits related to the shipments transported by CARRIER as arranged by
FORWARDER. This indemnification shall include payment of legal fees
necessitated by FORWARDER’S defense against such claims. Any claim for indemnification under this agreement
shall accrue at the time payment is made, and the applicable statute of
limitations shall begin to run at that point, regardless of the period for
filing claims and filing suit under the Carmack Amendment.
(e) CARRIER
authorizes FORWARDER as its agent to collect freight charges on shipments which
FORWARDER has obtained for CARRIER. CARRIER shall bill FORWARDER and not
FORWADER’S customers ( i.e., consignor or consignee ) for freight charges. CARRIER agrees that it will not seek payment
from shipper until FORWARDER has
received thirty (30) day’s notice of CARRIER’s intent to seek recovery from
shipper.
IV. FORWARDER
OBLIGATIONS
(a) FORWARDER shall offer to CARRIER for
shipment a minimum of ( 1 ) shipment for each year this agreement
remains in effect, and CARRIER agrees to transport those shipments during that
period of time.
(b) FORWARDER
agrees to pay CARRIER for the transportation of the commodities moved under
this agreement in accordance with the rate set forth herein or Addenda thereto,
within (30) days of the receipt by
FORWARDER of CARRIER’S invoice covering such transportation.
V. SPECIFIED
RATES AND CHARGES
(a) The
basic transportation rates negotiated between the parties will be set on a per
shipment basis. With the use of a Rate
Confirmation Sheet, the FORWARDER will, by facsimile, send to the CARRIER the
proposed or agreed upon rate for transporting the shipment documented on the
issued Rate Confirmation Sheet. In return, the CARRIER, will, by facsimile,
send to the FORWARDER the issued Rate Confirmation Sheet signed approving the
agreed upon rate to transport the shipment.
VI. BILLS OF LADING
(a) CARRIER shall issue a receipt or a
bill of lading for property it transports and shall be liable to the person
entitled to recover under the receipt of the bill of lading. If the consignor has prepared a bill of
lading in accord with 49 U.S.C. § 80101 et seq., CARRIER, when picking up the
shipment, shall sign the bill of lading as the agent of FORWARDER, and
FORWARDER shall be shown on the bill of lading as the carrier.
VII. PROVISIONS AS TO THE SETTLEMENT OF
CARGO CLAIMS
(a) Cargo claims shall be investigated and settled in
accordance with the regulations codified at 49 C.F.R. § 370 et seq. As a condition precedent to recovery, claims
must be filed in writing with the receiving or delivering carrier, or carrier
issuing the bill of lading, or carrier on whose line the loss, damage, injury
or delay occurred, or carrier in possession of the property when the loss,
damage, injury or delay occurred, within nine months after delivery has occurred
or should have reasonably occurred..
Suits shall be instituted against any carrier within two years, and one
day from the day when notice in writing is given by the carrier to the claimant
that the carrier has disallowed the claim or any part or parts thereof
specified in the notice. Where claims
are not filed or suits are not instituted thereon in accordance with the
foregoing provisions, no carrier hereunder shall be liable, and such claims
shall not be paid.
(b) If any dispute arises about a cargo claim, the party who
alleges a claim may file suit in the federal district or the state and county
in which FORWARDER is located.
VIII. MEDIATION AS TO ALL DISPUTES OTHER
THAN CARGO CLAIMS
(a) If
a dispute arises out of or relates to this AGREEMENT, other than a dispute
about cargo claims, and the parties have not been successful in resolving the
dispute through negotiation, the parties agree to attempt to resolve the
dispute by submitting the dispute to mediation by the AMERICAN ARBITRATION
ASSOCIATION (“AAA”) or by any method agreed upon by the parties. Each party shall bear its own expenses and an
equal share of the expenses of the mediator and the fees of the AAA. The parties, their representatives, other
participants and the mediator shall hold the existence, content and result of
the mediation in confidence. If such
dispute is not resolved by such mediation, the parties shall have the right to
resort to any remedies permitted by law.
All defenses based on the passage of time shall be tolled pending the
termination of the mediation. Nothing in
this clause shall be construed to preclude any party from seeking injunctive
relief in order to protect its rights pending mediation. A request by a party to a court for such
injunctive relief shall not be deemed a waiver of the obligation to mediate.
IX. TRANSIT TIME
(a) FORWARDER and CARRIER may make
agreements on each shipment as to required transit time. In the absence of an agreement between the
parties, “reasonable dispatch” shall be the applicable transit time.
X. INDEPENDENT CONTRACTOR STATUS
(a) The relationship of CARRIER to
FORWARDER shall, at all times, be that of an independent contractor.
X
(a) CARRIER shall not solicit traffic
from any shipper, consignor, consignee or customer of FORWARDER where (1) the
availability of such traffic first became known to CARRIER as a result of
FORWARDER’S efforts, or (2) where the traffic of the shipper, consignor,
consignee or customer of FORWARDER was first tendered to CARRIER by
FORWARDER. If CARRIER breaches this
agreement and “back-solicits” FORWARDER’S customers, and/or obtains traffic
from such a customer, FORWARDER is then entitled, for a period of fifteen (15)
months after the involved traffic first begins to move, to a commission from
CARRIER of ( 20% ) of the transportation revenue received on the movement of
the traffic, as liquidated damages.
Termination of this contract shall not affect the enforceability and
applicability of the foregoing provisions of this clause for a period of 15
months after termination.
XII. HIRING OF OTHER CARRIERS PROHIBITED
(a) CARRIER agrees that it shall
transport all loads tendered to it under its own authority, on equipment owned
or leased by it, and use employees or independent contractors under contract
with it. Should a violation of the preceding
sentence occur, CARRIER agrees to pay any and all charges relating to the
movement of the shipment, and to indemnify and hold harmless SHIPPER and/or
SHIPPER’S customers from any and all freight charges claimed to owe directly to
the underlying motor carrier. CARRIER also agrees to settle any cargo claims
that may arise in connection with a violation of this paragraph pursuant to 49
U.S.C.§14706.
XIII. FORCE MAJEURE EXEMPTIONS
(a) Neither party hereto will be liable
for the failure to tender or timely transport freight under this AGREEMENT if
such failure, delay or other omission is caused by fire, flood, or other
natural disaster, war, embargo, riot, civil disorder, through compliance with
legally constituted order of civil or military authorities, provided the party
uses best efforts to perform pursuant to the Agreement and provided that the
party provide reasonable notice to the other party of the inability to perform.
XIV. ENTIRE AGREEMENT
(a) This
Agreement, including all Appendices, Exhibits, and Addenda, constitutes the
entire agreement intended by and between the PARTIES and supersedes all prior
agreements, representations, warranties, statements, promises, information,
arrangements, and understandings, whether oral, written, expressed or implied,
with respect to the subject matter hereof.
XV.
NOTICES
(a) Unless the PARTIES notify each other in writing of a
change of address, any and all notices required or permitted to be given under
this Agreement shall be in writing (or fax with machine imprint on paper
acknowledging successful transmission) and shall be addressed as follows:
(FORWARDER) (CARRIER)
__________________________________
Attn:______________________________ Attn:
ATS Express, Inc. Address:
_____________________
Phone: 843-747-3333 Phone:
Fax: 843-747-3589 Fax:
XVI. SEVERABILITY
(a) If any part of this AGREEMENT is held
unenforceable, the rest of the AGREEMENT will continue in effect.
IN WITNESS WHEREOF,
The parties have set
their hands and seals this _______ day of ________________, 200_.
CARRIER: ______________________________ FREIGHT FORWARDER: ATS EXPRESS, INC.
BY: ____________________________________ BY:
__________________________________________
TITLE:
__________________________________ TITLE: _______________________________________