THE TERMS AND CONDITIONS SHALL BE AS FOLLOWS:
WHEREAS, Contractor is a regulated transportation broker pursuant to authority issued by the Federal Highway Administration; and
WHEREAS, Contractor and carrier are desirous of providing for the transportation by Carrier of Freight primarily consisting of automobiles and light trucks originated and designated by Contractor;
NOW, THEREFORE, in view of the above and foregoing, the mutual covenants and the conditions set forth herein, and other good and valuable consideration, the receipts and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
ALL LOADS REQUIRE THE FOLLOWING ITEMS TO BE COMPLETED PRIOR TO CARRIER RECEIVING PAYMENT:
1) All drivers are required to count and verify all VIN Numbers for the shipment before loading, Carrier accepts full responsibility for all costs associated with any vehicle that is transported in error due to Carrier’s negligence of not confirming vehicle identification number (VIN) and/or confirming that the Maroney sticker matches the destination. Before loading, the driver must notify Contractor, if any discrepancies are found. Contractor will not be responsible for any shortages, loss or damage to the shipments transported by Carrier, and Carrier’s liability for cargo damage will be that of a common Carrier with no limits of liability applying. At delivery, Carrier agrees to have its drivers obtain a signed bill of lading or delivery receipt via the Magnus Tech application from the consignee, including the typed name of the person signing. Failure to do so may result in an additional twenty percent (20%) retention of the contracted load rate.
2) Carrier shall look only to Contractor and not to the involved shipper, consignee or customer of Contractor for payment of Carrier’s freight charges under this agreement. Contractor shall be entitled to deduct any loss, shortage or damage claim from any money including freight charges that may be owed to Carrier.
3) Carrier agrees to load and deliver all freight on or before the dates provided to the Contractor on Contractors load request form; Carrier further agrees to accept financial responsibility for any cost(s) incurred due to late delivery, to include but not limited to, rental car reimbursement. Penalties for delivery later than 24 hours will equal 10% per day and/or any discounts that the Contractor gives to the customer due to delays. Vehicles with damage will be negotiated at the Contractors discretion, and any amounts adjusted due to damage will be adjusted to the carrier pay as well.
4)Carrier agrees to provide its driver’s name and a working cell phone number, and that the driver will communicate with /contractor on a daily basis from the time the freight is loaded until it is delivered. Failure to comply will result in a ten percent (10%) rate reduction.
5) Contractor requires that Carrier or its driver’s contact Consignee 24 hours before delivery to arrange inspection and delivery during normal receiving hours. Carrier or its drivers shall report all delays on deliveries immediately to Contractor or pay and additional ten percent (10%) penalty.
6) By signing below, Carrier warrants that it is duly and legally qualified to provide the transportation services contemplated herein, and that it holds liability insurance for at least one million dollars (1,000,000.00). The Carrier further warrants that it has cargo damage insurance of the following requirements or more as necessary to adequately insure the cargo: 1, 2, 3, or 4 car carriers, $150,000.00; 6 or 7 car carriers, $250,000.00; 8 or more car carriers, $350,000.00. As Carrier is responsible for damage to vehicle while in its care, custody or control, Motor Truck Cargo Coverage with sufficient limits per tractor/trailer unit must be maintained at all times. The deductible per loss should be no greater that two thousand five hundred dollars ($2500.00). Even though Motor Truck Cargo insurance is required Carrier is responsible for any and all damages to the freight. Carrier hereby acknowledges and agrees that in the event that high-value vehicle is being transported, the Contractor reserves the right to adjust these limits.
7) RISK OF LOSS: Carrier shall have the sole and exclusive care, custody and control of the freight from the time the freight is delivered to Carrier for transportation until delivered to the consignee accomplished by the use of the Magnus Tech application. Carrier assumes the liability of a common carrier for custody and Carrier shall bear all risk of loss with respect to the freight being transported by Carrier pursuant to this agreement. Carrier shall indicate on the Magnus Tech application any damages to freight transported by Carrier. Contractor will handle the claims with shippers and carrier shall pay all claims and costs thereof within ten (10) days after notification of the amount of such claim by Contractor. Contractor will advise Carrier of shipper’s loading requirements and cargo claim payment procedures and Carrier agrees to comply with those requirements and to honor claims filed with Contractor in accordance with this procedure. In case of severe damage to a vehicle bearing a brand or trademark, which in any way carries or implies that guarantee of the manufacturer, the manufacturer, exercising reasonable discretion shall be the sole judge as to whether the vehicle is to be declared a “Total Loss”, such damaged vehicle shall not be sold or otherwise disposed of except by the manufacturer or with its consent. The manufacturer in some cases may also invoke a “loss of sale” penalty on “Total Loss” claims in addition to the cost of the vehicle. Carrier acknowledges and agrees that it shall be responsible for payment in full of all costs, expenses and penalties associated with a “Total Loss”. Carrier will be responsible for loss of value on all vehicles. Loss of value on a manufacturer vehicle are determined by the manufacturer and are non-negotiable. Carrier agrees to pay a $35.00 fee for each claim opened. Claims over $2500.00 or requiring extensive time will then be billed at a rate of $50.00 per hour for claims management. The fee will be charged on the quarter hour (15 minutes) for time spent working the claim until the claim is settled with full payment.
8) Carrier agrees to indemnify Contractor and hold Contractor harmless as follows: a) for loss of, or damage to Carriers equipment; b) for loss resulting in injury, including death sustained by Carrier or by any employees of carrier or by any other person while acting in the capacity of the driver or helper in connection with the operation of the equipment utilized herein including the payment by /Carrier of any workmen’s benefits, unemployment compensation benefits, as well as any additional benefits paid under “No Fault” and “Personal Injury Protection” laws by any state; c) for bodily injury, property damage, or cargo loss or damage including the defense of lawsuits there from arising out of the maintenance use, or operation of the equipment utilized herein, and ; d) for any loss or damage sustained by Contractor as a result of negligence, incompetence, or dishonesty of Carrier or Carrier’s agents or employees. Carrier shall pay costs, expenses and attorney’s fees that may be expended or incurred by Contractor in remedy for Contractor against the Carrier or in litigation brought against the Contractor because of any omission of Carrier under this agreement.
9) The relationship of Carrier and Contractor shall at all times be that of an independent contractor and that the parties agree that the driver and helpers furnished by carrier for performing the services under the terms and condition of this agreement are the employees or independent contractors of carrier and are not the employees of Contractor. The parties further agree that the Carrier is not an employee of Contractor but is an independent Contractor.
10) CARRIER MUST DELIVER using the Magnus Tech application.
11) If any damage is noted on a vehicle, it must be noted and signed for via the Magnus Tech application (as applicable before moving the vehicle from its location or the vehicle being removed from the auction, in this instance, note damage on the reverse side of the gate pass also).
12) Any damage noted by carrier needs to be reported to Contractor as soon as feasibly possible. Further, Carrier must advise Contractor if damage is transport related or was noted at time of pre-loading inspection. Delivery of all vehicles must be during normal operating hours unless otherwise authorized by Contractor. Carrier accepts any damage not signed for or noted sufficiently at the time of pickup. If Contractor authorizes any after-hours delivery, vehicles will be delivered “Subject to Inspection” and the Magnus Tech application entry should be signed “STI” in the signature portal. Carrier accepts responsibility for any damages not properly documented at the time of pickup. Carrier agrees to take photos of the damage to supply to the Contractor within 24 hours of the damage.
13) In the event of a “Collect on Delivery” (COD) load, checks are to be payable to “Accelerated Services”, unless previously arranged by Contractor. If load is a “COD”, Carrier will receive payment upon the receipt of required paperwork (exception transport damage which will be made upon settlement of damage claim).
14) CARRIER’S equipment only is to transport the freight contained herein. Carrier is not to broker this freight. Brokering will result in retention of contracted rate or percentage thereof at the sole discretion of Contractor.
15) Non-Competition. During the term of this agreement and for a period of 18 months or after, carrier shall not compete, solicit or submit any bid on any traffic or to any customer, shipper or consignee assigned by Contractor to Carrier. Any and all freight or traffic offered to Contractor is considered as being offered to Contractor, not Carrier. Carrier agrees to pay all monies for freight taken by Contractor under this agreement without exception. Any breach would be cause for Contractor to take appropriate legal action to remedy the situation and recover both present and future damages. Both Carrier and Contractor agree that a Restraining Order would be the first remedy.
16) VENU. This agreement supersedes all other documents, to include carrier’s Bill of lading. It is the intention of the parties hereto that this agreement and performance hereunder and all suits and special proceedings here under shall be construed in accordance with and under pursuant to the laws of the state of Colorado (unless prompted by applicable federal law), and that any action, special proceeding, or other proceeding that may be brought arising out of, in connection with or by reason of this agreement, the laws of the State of Colorado shall be applicable (unless preempted by applicable federal law) and shall govern the exclusion of the laws of any other forum without regard to the jurisdiction in which any in the district court for the county of Douglas, State of Colorado, and any other venue is hereby waived.
17) TERM the term of this agreement shall be for one (1) year and shall automatically renew for successive one (1) year periods; provided, however, that this agreement may be terminated at any time by giving 30 days prior written notice. Notice will be mailed certified return receipt requested by US Mail only. Contractor will not pay invoices received from Carrier without the above –mentioned items. It is the Carrier’s responsibility to provide this information in a timely fashion. Carrier will not be paid until Contractor is paid without exception. Attention to all of the above will expedite this process.