W8 Shipping, LLC, Terms and Conditions
Third Parties Providing Motor Carrier Services
The following W8 Shipping, LLC, Terms and Conditions (“Ts and Cs”) apply to any motor carrier (“CARRIER”) providing motor carrier services for W8 Shipping, LLC, (“BROKER”) in response to any services request issued by BROKER and accepted by CARRIER. BROKER is authorized by the FMCSA to provide property broker services.
Except in the event BROKER and CARRIER have executed a separate motor carrier services agreement, by accepting a request from BROKER for motor carrier services, CARRIER expressly agrees to and accepts these Ts and Cs. For the avoidance of doubt, in the event BROKER and any CARRIER maintain a separate executed agreement pertaining to the performance of motor carrier services, including but not limited to those services set forth in these Ts and Cs, such separate motor carrier agreement shall supersede and govern the parties’ business dealings.
TERM AND TERMINATION. The Term of these Ts and Cs shall begin from CARRIER’s acceptance of BROKER’s request for services and end upon CARRIER’s completion of all related services in such request. The terms of these Ts and Cs, which by their nature, application, or operation are intended to survive the termination of these Ts and Cs shall be deemed to survive.
CARRIER’S OPERATING AUTHORITY AND COMPLIANCE WITH LAW. CARRIER represents and warrants that it is duly and legally qualified in accordance with all federal, state, provincial, territorial, and local laws, statutes, regulations, rules, and ordinances (collectively, “Applicable Law”) to provide, as a for-hire motor carrier, the transportation services contemplated herein. In addition, CARRIER agrees to provide its taxpayer identification number and Form W-9 to BROKER prior to providing any services for BROKER. CARRIER further represents and warrants that it does not have an unsatisfactory or unfit safety rating issued by any regulatory authority with jurisdiction over CARRIER’s operations, including, but not limited to, the Federal Motor Carrier Safety Administration (“FMCSA”) of the U.S. Department of Transportation (“DOT”). CARRIER further agrees to comply with all Applicable Law in the performance of its services under these Ts and Cs. In the event that CARRIER receives an unsatisfactory or unfit safety rating, is notified that it may receive an unsatisfactory or unfit safety rating, fails to maintain insurance required hereunder, is notified that such insurance may become ineffective or is otherwise prohibited by Applicable Law from performing services hereunder, CARRIER shall immediately notify BROKER of such fact and shall not carry any automobiles, loads, goods, or other cargo (“Cargo”) tendered to CARRIER by BROKER until such prohibition on operations is removed. CARRIER shall be solely responsible for its day to day operations including, but not limited to, setting appropriate routes to ensure that transportation of shipments is accomplished in accordance with all Applicable Laws and to otherwise ensure shipments are not damaged in transit.
PERFORMANCE OF SERVICES.
The Platform. Notwithstanding anything to the contrary herein, the PARTIES may do business pursuant to these Ts and Cs by utilizing the third-party transportation management system identified ahead of time by BROKER, including, without limitation, Central Dispatch, LLC, or such other platform communicated to CARRIER by BROKER (the “Platform”). If CARRIER utilizes the Platform to provide services, CARRIER represents and warrants all copies or other proofs of insurance, licenses, permits, authorities, and other applicable qualifications required by and uploaded to the Platform, and to which BROKER has access, are updated and effective and reflect CARRIER’s current operations. Any shipment or other request for services offered through the Platform by BROKER and accepted through the Platform by CARRIER shall be subject to these Ts and Cs. If the PARTIES utilize the Platform, any reference throughout these Ts and Cs to providing notice, as well as submitting or otherwise exchanging information or documentation shall contemplate the PARTIES’ utilization of the Platform to complete the same. To the extent any terms or provisions in the Platform provider’s Terms and Conditions, and other documentation applicable to use of the Platform, conflict with or contradict these Ts and Cs, these Ts and Cs shall supersede and govern.
Manner, Means, and Routes. CARRIER shall be solely responsible for controlling the method, manner and means of accomplishing CARRIER’s services. CARRIER or its driver are responsible for determining the appropriate route for transportation. BROKER is not required to provide any route directions to CARRIER; however, in the event BROKER does provide any route directions to CARRIER (directly or through the Platform), such directions are provided as a convenience only and CARRIER shall have no obligation to follow such routing directions. So as to allow BROKER to comply with Customer requests regarding shipment status, CARRIER shall provide contact information for any driver transporting Cargo pursuant to these Ts and Cs. Upon request, CARRIER shall provide BROKER, or otherwise ensure BROKER has access to (including via the Platform), information regarding shipment status.
Photographic Evidence of Cargo Condition. When the Cargo consists of automobiles, CARRIER agrees to take photographs of each automobile both at the time of pick-up and delivery, reasonably sufficient to show the condition of each automobile at every major angle (e.g., front, back, roof and both sides), as well as the interior condition of each such automobile. CARRIER agrees to take such photographs using a tablet, smartphone, or other electronic device with internet access and capable of promptly uploading such photographs, as well as to email all photographs to BROKER, promptly at both the time of pick-up and delivery of each automobile, using the following email address: and including the last six (6) numbers of the automobile’s VIN in the subject line. CARRIER acknowledges and understands the delivery will not be considered complete unless and until the corresponding photographs are emailed to BROKER as set forth herein.
(i) CARRIER acknowledges and understands the aforementioned photographic evidence is required by BROKER’s Customers and, as set forth in Section 6 of these Ts and Cs, necessary as a condition to payment for CARRIER’s services hereunder.
(ii) In addition, the PARTIES each recognize and agree that CARRIER’s failure to take proper photographs of the automobiles and timely submit such photographs to BROKER would cause direct and indirect costs for BROKER some of which are impossible to quantify in advance, including, but not limited to, damages resulting from damage to BROKER’s reputation with BROKER’s Customers. In light of this, CARRIER agrees, if CARRIER fails to timely provide BROKER with all required photographs, as required herein, CARRIER will pay BROKER, as liquidated damages and not as a penalty, $1,000. BROKER is authorized to set off payments owed to CARRIER hereunder or otherwise recover such liquidated damages.
Ts and Cs Govern. CARRIER’s services under these Ts and Cs are designed to meet the needs of BROKER under the specified rates and conditions set forth herein. CARRIER agrees that these Ts and Cs apply to all Cargo handled by CARRIER for BROKER and that the terms of these Ts and Cs control the relationship between the PARTIES. Regardless of whether they are required by law, in no event shall any provisions of CARRIER’s tariff, terms and conditions, service guide, bill of lading, or similar documentation apply to services provided under these Ts and Cs.
Pick-Up, Transport, and Delivery Without Delay. CARRIER shall pick up, transport, and deliver all shipments provided under these Ts and Cs without delay so as to ensure the services meet all dates and times provided by BROKER and BROKER’s Customers (including, without limitation, as provided via the Platform), and all occurrences which would be probable or certain to cause delay shall be immediately communicated to BROKER by CARRIER.
(i) With respect to pick-up, CARRIER agrees to timely pick up the Cargo in accordance with the dispatch specifications. If the dispatch communication does not include any information regarding a pick-up time, CARRIER agrees to contact the auction house or other pick-up location to arrange a date and time for pick up. CARRIER agrees to be responsible for any fees, costs, penalties, and other liabilities related to or arising out of: (1) the late pick-up of Cargo and/or any after-hours pick-up, and (2) loading and/or unloading at any auction house or other pick-up location, and CARRIER agrees to defend, indemnify, and hold BROKER and its Customers harmless for the same.
(ii) With respect to delivery, CARRIER acknowledges and understands: (1) each delivery location will only accept a delivery if the motor carrier has a prearranged delivery appointment, and (2) it is CARRIER’s responsibility to contact the applicable delivery location to schedule such delivery date and time. To this end, with respect to each dispatch accepted by CARRIER hereunder, CARRIER agrees to timely contact each delivery location ahead of time and set up a specific delivery date and time or window so as to ensure CARRIER will be able to physically deliver the Cargo at the designated location in compliance with the delivery schedule provided to CARRIER at dispatch. CARRIER agrees to deliver the Cargo pursuant to the scheduled delivery time and agrees, if CARRIER fails to schedule the delivery with the delivery location or attempts delivery outside of the scheduled delivery time, including after the operating hours of the applicable delivery location, such failure or attempted delivery will not be considered a complete delivery hereunder. Any Cargo that arrives at its intended delivery location more than thirty (30) days late will be considered a total loss.
(ii) The PARTIES each recognize and agree that CARRIER’s failure to deliver Cargo in accordance with the delivery dates, times, and schedules provided by BROKER or BROKER’s Customer would cause direct and indirect costs for BROKER, some of which are impossible to quantify in advance, including, but not limited to, damages resulting from damage to BROKER’s reputation with BROKER’s Customers. In light of this, CARRIER agrees, if CARRIER fails to timely deliver Cargo on the delivery date communicated by BROKER or BROKER’s Customer or within fourteen (14) days thereafter, CARRIER will pay BROKER, as liquidated damages and not as a penalty, $20 per day, starting on the fifteenth (15th) day such Cargo is late and for each day the Cargo is late thereafter until the thirty-first (31st) day on which the Cargo will be considered a complete loss, as set forth in Section 3(e) above. BROKER is authorized to set off payments owed to CARRIER hereunder or otherwise recover such liquidated damages. Notwithstanding these liquidated damages commencing after the 14th day of a late delivery, for the avoidance of doubt, any Cargo not delivered by the delivery date communicated by BROKER or BROKER’s Customer shall be considered late.
(i) Check in with the auction house or other pick-up location to confirm all of the automobile’s applicable parts, accessories, and documentation, including, without limitation, all key(s), title documentation, and charging equipment (if an electric vehicle) (altogether, the “Accessories”) that must be picked up as part of the dispatch, as well as confirm CARRIER is in possession of all such Accessories.
(ii) Confirm pick-up of the correct automobile, including confirming the applicable automobile’s information (e.g., make, model, color, year, VIN, etc.) matches the information provided via the Platform. In the event CARRIER picks up, transports, and/or delivers the wrong automobile, CARRIER will be responsible for any and all direct, indirect, and consequential fines, fees, costs, penalties, damages, and other liability (including attorneys’ fees and legal costs) arising out of, resulting from, or caused by such failure, and CARRIER agrees to defend, indemnify, and hold BROKER and its Customers harmless for the same.
(iii) Email photographic evidence of the automobile to BROKER, as set forth in Section 3(c) above.
(iv) Email or call BROKER with confirmation that CARRIER has the automobile’s Accessories, as well as the condition of such Accessories.
(v) In the case of any missing Accessories, wait for BROKER’s approval before commencing transportation.
Service Specifications. These Ts and Cs do not grant CARRIER an exclusive right to perform any transportation related services for BROKER’s shipper, consignee, consignor, receiver, or other customer (hereinafter, the “Customer”). CARRIER agrees to meet all service specifications and requirements, pertaining to the performance and completion of services, as communicated by BROKER to CARRIER (including, without limitation, when communicated via the Platform), which include, without limitation, BROKER’s Customers’ applicable specifications. CARRIER acknowledges and agrees CARRIER is responsible for any and all direct, indirect, and consequential fines, fees, costs, penalties, damages, and other liability (including attorneys’ fees and legal costs) arising out of, resulting from, or caused by any failure to fully comply with all applicable specifications and requirements, and CARRIER agrees to defend, indemnify, and hold BROKER and its Customers harmless for the same. Upon delivery of each piece of Cargo, CARRIER represents and warrants, CARRIER shall have completed all applicable specifications, including taking and submitting photographic evidence of the condition of the Cargo (both at pick-up and delivery), as well as, when Cargo consists of automobiles, delivering and submitting all Accessories.
No Comingling of Cargo. Any equipment used by CARRIER to transport Cargo pursuant to these Ts and Cs shall be used exclusively for such purpose while loaded with Customer Cargo, and in no event will property of any other party be loaded on such equipment unless BROKER expressly consents thereto in writing.
Dispatch Cancellation. CARRIER acknowledges and agrees, after accepting each dispatch via the Platform or any other method agreed to by the PARTIES, CARRIER is solely responsible for all related Cargo tendered hereunder and timely completing all services in accordance with these Ts and Cs, including timely pick-up, transport, and delivery. In the event CARRIER cancels any dispatch after CARRIER’s initial acceptance or otherwise fails to timely complete performance of services, CARRIER is responsible for any and all direct, indirect, and consequential fines, fees, costs, penalties, damages, and other liability (including attorneys’ fees and legal costs) arising out of, resulting from, or caused by such failure and CARRIER agrees to defend, indemnify, and hold BROKER and its Customers harmless for the same.
RECEIPTS AND BILLS OF LADING. Each shipment hereunder shall be evidenced by a bill of lading acceptable to BROKER naming CARRIER as the transporting carrier. The fact that BROKER is named as a “carrier” upon any applicable bill of lading shall not affect its status as a property broker. Upon delivery of each shipment made hereunder, CARRIER shall obtain a receipt showing the kind and quantity of product delivered to the consignee of such shipment at the destination specified by BROKER or the Customer, and CARRIER shall cause such receipt to be signed by the consignee. The bills of lading are intended to act as a receipt only. CARRIER’s failure to issue a bill of lading shall not affect its liability hereunder. CARRIER shall notify BROKER immediately of any exception made on the bill of lading or delivery receipt.
CARRIER shall, at its sole cost and expense: (1) furnish all equipment necessary or required for the performance of its obligations hereunder (the “Equipment”); (2) pay all expenses related, in any way, with the use and operation of the Equipment; (3) maintain the Equipment in good repair, mechanical condition and appearance; and (4) maintain records of Equipment use which will be provided to BROKER upon request.
CARRIER shall be fully responsible for the acts and omissions of each of its employees, agents, representatives, contractors, and subcontractors, including, without limitation, any attempted or actual theft and/or conversion of Cargo hereunder, and shall utilize only competent and able personnel that are legally licensed in accordance with all Applicable Law to perform the services hereunder and fully covered by CARRIER’s insurance. CARRIER shall have full control of any personnel used in the provision of motor carrier services hereunder. CARRIER shall be solely responsible for ensuring, and will ensure, at CARRIER’s cost and expense, that such personnel are fully qualified to perform services hereunder, and that such personnel have access to all locations into which access is necessary to perform services under these Ts and Cs. Without limiting the foregoing, CARRIER shall ensure that any personnel providing services have sufficient hours available to complete scheduled deliveries in accordance with, and without violation of, applicable hours of service regulations. CARRIER shall be solely responsible for determining whether scheduled services can be completed without violation of Applicable Law, and if services cannot be completed without violation of Applicable Law, shall notify BROKER prior to acceptance of load.
CARRIER shall perform the services hereunder as an independent contractor, and assumes complete responsibility for all state and federal taxes, assessments, insurance (including, but not limited to, workers’ compensation, unemployment compensation, disability, pension and social security insurance) and any other financial obligations arising out of the transportation performed hereunder.
CARRIER shall be solely responsible for compliance with all provisions of Applicable Law regarding air quality and environmental standards including, but not limited to, those of the California Air Resources Board (“CARB”). By entering into these Ts and Cs, CARRIER acknowledges and agrees that it is aware of applicable CARB regulations, including the Truck and Bus Regulation (“TBR”) at 13 C.C.R. § 2025, the Drayage Truck Regulation (“DTR”) at 13 C.C.R. § 2027, the regulation on Transportation Refrigeration Units (“TRU”) at 13 C.C.R. § 2477 et seq., and the Tractor Trailer Greenhouse Gas (“GHG”) regulation at 17 C.C.R. § 95300 et seq., and has adopted policies and procedures to ensure compliance with such regulations, as they may be revised, adopted, and amended from time to time. CARRIER shall only dispatch and operate compliant vehicles (including vehicles with compliant TRUs) and shall maintain shipment specific records evidencing such compliance, which records shall be provided to BROKER upon request. Without limiting the foregoing, if CARRIER operates TRUs in California under these Ts and Cs, it shall ensure all such units are registered with the CARB’s Equipment Registration system (“ARBER”).
In the event CARRIER is requested to transport waste or hazardous materials, CARRIER represents and warrants that it has obtained all necessary federal, state and provincial permits and registrations to transport hazardous materials or waste in inter-provincial, interstate and/or intrastate commerce. Upon request, CARRIER shall provide BROKER with a copy of all such federal and state permits and registrations. CARRIER further represents and warrants that: (1) it is in compliance with any and all applicable laws, rules and regulations applicable to such transportation, including, but not limited to 49 C.F.R. Parts 171-178; (2) all drivers used to transport such shipments have undergone the necessary training requirements of all applicable state, provincial and federal laws; and (3) all drivers used to transport hazardous material have the proper endorsements on their Commercial Driver's License (or such analogous operator permit as is applicable to such driver) to legally transport such shipments. CARRIER acknowledges and agrees that BROKER’s sole obligation with respect to requesting services with respect to such shipments is to pass through information (including commodity descriptions and classifications) and documentation (including shipping papers) provided to BROKER by the Customer. BROKER shall have no obligation to independently verify the accuracy of such information or documentation.
CARRIER represents and warrants, to the extent applicable to CARRIER’s operations, CARRIER is not on any list of companies with outstanding judgements, as published by the California Labor Commissioner’s office. In the event CARRIER reasonably believes it could be in such list, or is put on such list, CARRIER shall immediately notify BROKER and shall not accept or carry any Cargo tendered by BROKER.
CARRIER shall maintain appropriate security infrastructure to ensure the physical security of shipments and equipment handled under the these Ts and Cs. In addition, CARRIER shall implement all necessary security policies and procedures to ensure no attempted or actual theft and/or conversion of Cargo hereunder and, in the event of any such attempted or actual theft and/or conversion of Cargo, CARRIER agrees to be solely responsible for, and will indemnify, defend, and hold BROKER harmless for, all damages, claims, costs, expenses, and other liability (including attorneys’ fees and legal costs) incurred by or brought against BROKER and any BROKER Customer arising out of or resulting from such attempted or actual theft and/or conversion of Cargo, which, notwithstanding anything to the contrary herein, such obligation shall not be subject to or governed by the Carmack Amendment (at 49 U.S.C. § 14706), any Cargo liability limitation, or other limitation.
CARRIER acknowledges and agrees BROKER makes no representations or warranties as to the quality of the Cargo at the time of pick-up, including, when the Cargo is an automobile, whether the automobile will be in an operable condition. In addition, CARRIER acknowledges and agrees BROKER makes no representations or warranties regarding whether any pick-up and/or delivery location will have loading and/or unloading equipment available to CARRIER for CARRIER’s use. CARRIER will be responsible for providing all of CARRIER’s own equipment required for the complete performance of services hereunder. In the event any such loading and/or unloading equipment is available for CARRIER’s use at any pick-up or delivery location, CARRIER does so at CARRIER’s sole risk and expense. BROKER shall not be responsible for, and CARRIER releases BROKER from, any direct, indirect, and consequential loss, damage, delay, fine, cost, penalty, or other liability (including any attorneys’ fees and/or legal costs) related to or arising out of the condition of the Cargo upon CARRIER’s pick-up of the same, as well as any loading, unloading, or other equipment used by CARRIER related to the CARRIER’s performance of services hereunder.
RATES AND PAYMENTS.
CARRIER will invoice and BROKER will pay the rates and charges agreed to by the PARTIES and memorialized in the applicable rate confirmation or other documentation exchanged via the Platform. The PARTIES agree, for the avoidance of doubt, and not by way of limitation: (1) any invoices submitted or payments made by the Platform provider, on behalf of CARRIER, to BROKER shall constitute CARRIER’s submission or payment of the same, and (2) any payments made by the Platform provider, on behalf of BROKER, to CARRIER shall constitute BROKER’s satisfaction of the corresponding payment obligations hereunder. CARRIER agrees to ensure all of its business and payment information available on the Platform is accurate and up to date. CARRIER represents and warrants that there are no other applicable rates or charges except those agreed to by the PARTIES through the Platform.
In the event service is provided and it is subsequently discovered that there was no applicable or understood rate through the Platform, the PARTIES agree that the rate paid by BROKER and collected by CARRIER shall be the agreed upon contract rate of the PARTIES for the services provided, unless such rate is objected to by CARRIER in writing within 10 days of payment by BROKER.
Payment by BROKER will be made in accordance with the timing and method communicated by the PARTIES through the Platform. No other payment method will be made available to CARRIER unless agreed to by BROKER ahead of time, in BROKER’s sole discretion. As a condition to payment, CARRIER shall provide BROKER with a legible copy or photocopy of the bill of lading or other proof of delivery, as well as clear photographic evidence in accordance with these Ts and Cs, to BROKER’s reasonable satisfaction, of the condition of the Cargo both at the time of CARRIER’s pick-up and delivery. BROKER may hold any payment until BROKER’s receipt of all such documentation and photographic evidence from CARRIER. CARRIER’s failure to provide BROKER with the aforementioned documentation and photographic evidence will result in CARRIER being held responsible to BROKER for any and all revenues that are uncollected by BROKER because of CARRIER’s failure to provide needed support paperwork and/or photographic evidence to BROKER. In addition, CARRIER acknowledges and understands BROKER may hold any and all payments owed to CARRIER hereunder in the event CARRIER fails to timely provide BROKER with CARRIER’s taxpayment identification number and Form W-9, in accordance with Section 2 of these Ts and Cs.
CARRIER agrees that BROKER has the exclusive right to handle all billing of freight charges to the Customer for the transportation services provided herein, and, as such, CARRIER agrees to refrain from all collection efforts against the shipper, receiver, or the Customer unless BROKER, in its sole discretion, expressly authorizes CARRIER in writing to collect from any such party, in which case, CARRIER’s sole recourse will be against such party. Upon CARRIER’s receipt of payment from BROKER, any right of CARRIER to payment from the Customer or any other third-party for services performed will be automatically assigned to BROKER.
CARRIER further agrees that BROKER has the discretionary right to offset any payments owed to CARRIER hereunder for liability incurred by CARRIER, including, but not limited to, auction storage fees, costs for missing Accessories and/or Cargo documentation, and claims for Cargo loss, damage, or delay.
Claims for undercharges must be brought within 180 days of BROKER’s receipt of the original invoice giving rise to such undercharge claim. Assuming CARRIER has complied with the foregoing invoicing obligations, CARRIER shall bring suit related to unpaid freight charges or undercharges within 18 months of the date of delivery or its right to sue or otherwise seek payment shall be waived.
WAIVER OF CARRIER’S LIEN. CARRIER shall not withhold any Cargo transported under these Ts and Cs on account of any dispute as to rates or any alleged failure of BROKER to pay charges incurred under these Ts and Cs. CARRIER is relying upon the general credit of BROKER and hereby waives and releases all liens which CARRIER might otherwise have to any Cargo of BROKER or its Customer in the possession or control of CARRIER.
CARGO LOSS, DAMAGE OR DELAY.
CARRIER shall have the sole and exclusive care, custody and control of the Cargo tendered hereunder from the time it is delivered to CARRIER for transportation until delivery to the consignee accompanied by the appropriate receipts, photographic evidence of the condition of the Cargo, and Accessories. CARRIER shall notify BROKER immediately in the event any such Cargo is lost (including stolen), damaged or destroyed, or in the event CARRIER becomes aware that applicable delivery schedules will not be met. In the event CARRIER fails to deliver the Cargo to the correct delivery location, as specified by BROKER or BROKER’s Customer, such failure will be considered a total Cargo loss hereunder. In addition, as set forth in Section 3(e) above, any Cargo that arrives at its intended delivery location more than thirty (30) days late will be considered a total loss.
CARRIER assumes the liability of a motor carrier under the Carmack Amendment as currently codified at 49 U.S.C. § 14706 for loss, delay, damage to or destruction of any and all Cargo or other property tendered to CARRIER pursuant to these Ts and Cs from the time the shipment is tendered to CARRIER until complete delivery as set forth herein. In the event of any loss or damage to Cargo discovered at, or reasonably after, the time of delivery, such loss or damage will be presumed to be CARRIER’s fault unless rebutted by CARRIER with clear and convincing evidence, which must include (without limitation) photographic evidence of the Cargo’s condition at the time CARRIER first picked up the Cargo, as well as at the time of delivery. For the avoidance of doubt, in the event CARRIER fails to provide photographic evidence of the condition of the Cargo, in accordance with Section 3 of these Ts and Cs, CARRIER will be responsible for all Cargo loss and damage discovered at, and reasonably after, the time of delivery.
CARRIER shall be liable for the full invoice value of the Cargo lost, damaged, delayed, or destroyed, as well as any additional costs or fees imposed upon BROKER by the Cargo claimant. No limitation of liability shall apply unless specifically agreed to in writing by BROKER prior to CARRIER’s receipt of the specific shipment to which such limitation applies, and BROKER’s agreement to a limitation shall not be construed as a waiver of full value liability with respect to any other Cargo tendered to CARRIER.
CARRIER waives any Applicable Law regarding processing of claims and handling of salvage, including, but not limited to, the provisions of 49 C.F.R. Part 370. CARRIER shall pay to BROKER or its Customer, or allow BROKER to deduct from the amount BROKER owes CARRIER, all amounts owed by CARRIER pursuant to Section 8(c) above. Payments by CARRIER to BROKER or its Customer, pursuant to the provisions of this section, shall be made within fifteen (15) days following submission to CARRIER of BROKER’s or Customer’s undisputed claim and supporting documentation. CARRIER’s failure to timely pay, expressly deny (with supporting documentation), or provide settlement offer, with respect to any cargo claim, shall constitute CARRIER’s acceptance of such claim and BROKER is authorized to set off any payments owed to CARRIER hereunder for the amount of such claim. CARRIER agrees to ensure it is available to fully assist BROKER in investigating any claim for Cargo loss, damage, delay, or destruction arising under these Ts and Cs until such claim is fully resolved, including, without limitation, promptly providing all applicable supporting documentation, as requested by BROKER and/or BROKER’s Customer.
CARRIER waives any right to salvage Cargo subject to these Ts and Cs, as well as any right to claim an offset for the value of salvage.
Exclusions from coverage contained in CARRIER’s Cargo Insurance as required herein shall not affect CARRIER’s liability for freight loss, damage, or delay. Without limiting CARRIER’s contractual liability to BROKER hereunder, CARRIER acknowledges and agrees that BROKER may, in its sole discretion, but is not required, to pursue claims for Cargo loss and damage on behalf of its Customer, and in such instances is not required to obtain an assignment of claim from its Customer in order to pursue such a claim.
INSURANCE. CARRIER shall procure and maintain, at its sole cost and expense, the following insurance coverages:
Public liability and property damage insurance (“AL Insurance”) covering all owned, non-owned, and hired vehicles with a reputable and financially responsible insurance company insuring CARRIER in an amount not less than $1,000,000.00 (U.S. Dollars) per occurrence, or such larger amount as required by applicable law.
All Risk Broad Form Motor Truck Cargo Legal Liability insurance (“Cargo Insurance”) in an amount not less than: (1) when CARRIER hauls between 1 and 3 automobiles at a time, $100,000 (U.S. Dollars) per occurrence, and (2) when CARRIER hauls more than 3 automobiles at a time or any other Cargo, $150,000 (U.S. Dollars) per occurrence. The coverage provided under the policy shall have no exclusions or restrictions of any type that would foreseeably preclude coverage relating to cargo claims including, but not limited to, exclusions for unattended or unattached trailers, theft, commodities transported under these Ts and Cs, refrigerator breakdown or lack of refrigerator fuel.
Statutory Workers’ Compensation Insurance coverage in such amounts and in such form as required by applicable state law.
All insurance policies required by these Ts and Cs shall, as applicable, be primary and shall waive subrogation and contribution against BROKER. CARRIER shall furnish to BROKER written certificates obtained from the insurance carrier showing that such insurance has been procured, is being properly maintained, the expiration date, and specifying that written notice of cancellation or modification of the policies shall be given to BROKER at least thirty (30) days prior to such cancellation or modification. In addition, BROKER shall be named as an additional insured on CARRIER’s AL Insurance policies, and as a loss payee on the Cargo Insurance policy as evidenced by an endorsement on the certificates of insurance. Upon request of BROKER or its designated insurance consultant, CARRIER shall provide BROKER, BROKER’s consultant, or Customer with copies of the applicable insurance policies. CARRIER represents and warrants, by accepting each dispatch or tender of Cargo under these Ts and Cs, regardless of whether CARRIER timely submits the documentation required under this Section 9, CARRIER maintains all insurance coverage requirements identified above, which is active and meets the specifications required hereunder.
COLLISIONS, ACCIDENTS, AND OTHER INCIDENTS. CARRIER agrees to immediately report to BROKER any crash, collision of the CARRIER’s Equipment with any vehicle, object or person, accident, incident, potential or actual claim, bodily injuries, losses or damages (including to Cargo), shortages, over-weights, or overages involving CARRIER’s operations under these Ts and Cs. If any such occurrence is not reported immediately to BROKER, CARRIER: (1) will risk disqualification of CARRIER and/or CARRIER’s worker(s) who failed to make the report and/or termination of these Ts and Cs; and (2) agrees to reimburse BROKER for all expense incurred as a result of the failure. In the event of any crash, collision, accident, other incident, or Cargo claim, CARRIER agrees to immediately and, in no event later than within twenty-four (24) hours, report such event to BROKER and provide BROKER with the accident report, insurance policy number and contact information, and claim number. In addition, CARRIER agrees to cooperate fully with BROKER and BROKER’s representatives and insurers with respect to any legal action, hearing, or other proceeding arising from the operation of CARRIER’s Equipment, the relationship created by these Ts and Cs, or the services performed hereunder, including provision of written reports or affidavits, attendance at hearings, and trials and assistance in securing evidence or obtaining the attendance of witnesses.
INDEMNITY. CARRIER shall defend, indemnify, and hold BROKER, its Customer, and each of their affiliated entities harmless from and against, and shall pay and reimburse, any and all direct, indirect and consequential loss, liability, damage, claim, fine, cost or expense, including reasonable attorneys’ fees and legal costs, arising out of or in any way related to the performance or breach of these Ts and Cs by CARRIER, its employees or independent contractors working for CARRIER (collectively, the “Claims”), including, but not limited to, Claims for or related to personal injury (including death), property damage or loss (including theft) and CARRIER’s possession, use, maintenance, custody or operation of the Equipment; provided, however, that CARRIER’s indemnification and hold harmless obligations under this paragraph will not apply to the prorated extent that any Claim is directly and proximately caused by the negligence or other wrongful conduct of the party to be defended, indemnified or held harmless. CARRIER hereby expressly waives any exclusive remedy defense, including, but not limited to, those available under any workers’ compensation or other occupational accident statutory regime, to the extent necessary to effectuate CARRIER’s obligations under this provision.
LOADING AND UNLOADING. The manner of loading, securing, and unloading Cargo upon Equipment shall be the sole responsibility of CARRIER. CARRIER agrees to inspect such loading and securement prior to departing and to ensure each piece of Cargo is properly secured to ensure safe transportation. CARRIER represents and warrants each driver utilized by it shall be competent to manage the safe loading, transportation, and unloading of the Cargo subject to these Ts and Cs. In the event CARRIER fails to properly load, secure, or unload any Cargo, CARRIER is responsible for any and all direct, indirect, and consequential fines, fees, costs, penalties, damages, and other liability (including attorneys’ fees and legal costs) arising out of, resulting from, or caused by such failure and CARRIER agrees to defend, indemnify, and hold BROKER and its Customers harmless for the same.
CONFIDENTIALITY AND NON-SOLICITATION.
(a) CARRIER shall maintain records related to shipments transported under these Ts and Cs, and with respect to shipments consisting of food, shall also obtain records related to prior shipments transported in the same equipment, for a period of not less than three (3) years from the date of delivery. CARRIER shall provide such records to BROKER upon request, and regardless of whether these Ts and Cs remains in effect at the time of such request. During these Ts and Cs and for three (3) years after its termination, neither PARTY may disclose the terms of these Ts and Cs to a third party without the written consent of the other PARTY except (1) as required by law or regulation; (2) disclosure is made to its accountants, tax advisors, attorneys, or any parent, subsidiary or affiliate company; or (3) to facilitate rating or auditing of transportation charges by an authorized agent and such agent agrees to keep the terms of these Ts and Cs confidential. In addition, in no event will CARRIER disclose any information regarding BROKER’s Customers (including identities, locations, volumes, etc.), the rates for services agreed between BROKER and CARRIER, or the rates paid by BROKER to CARRIER with respect to services hereunder.
(b) CARRIER will not accept traffic, either directly or indirectly, from any Customer of BROKER where: (1) the availability of such traffic first became known to CARRIER as a result of BROKER’s efforts; or (2) the traffic of BROKER’s Customer was first tendered to CARRIER by BROKER. If CARRIER breaches this provision during the term of these Ts and Cs or for twelve (12) months thereafter, CARRIER shall be obligated to pay BROKER, for a period of fifteen (15) months thereafter, commissions in the amount of thirty-five percent (35%) of the transportation revenue resulting from traffic transported in violation of this provision, and CARRIER shall provide BROKER with all documentation requested by BROKER to verify such transportation revenue. CARRIER shall not utilize BROKER’s or the Customer’s name or identity in any advertising or promotional communications without written confirmation of BROKER consent.
SUB-CONTRACT PROHIBITION. CARRIER specifically agrees that all Cargo tendered to it by BROKER shall be transported on equipment operated only under the for-hire motor carrier authority of CARRIER, and that CARRIER shall not in any manner sub-contract, broker, or in any other form arrange for the Cargo to be transported by a third party without the prior written consent of BROKER. In the event that CARRIER breaches this provision, CARRIER shall remain directly liable to BROKER as if CARRIER transported such Cargo under its own authority in accordance with this provision, and shall further hold harmless and indemnify BROKER from any and all loss, liability, damage, claim, fine, cost or expense, including reasonable attorney’s fees, arising out of or in any way related to the use of any subcontractor in violation of this provision regardless of whether arising from the conduct or omissions of CARRIER, the subcontractor, or any other third party. If CARRIER in any manner sub-contracts, brokers, or otherwise arranges for Cargo to be transported by a third party, in addition to any other rights and remedies available to BROKER, BROKER may, in its sole discretion, pay the underlying carrier directly, which payment will relieve BROKER of any and all payment obligations to CARRIER with respect to such load.
BROKER’S RECORDS. CARRIER hereby waives its right to obtain copies of BROKER’s records as provided for under 49 C.F.R. Part 371. Notwithstanding the foregoing, to the extent that CARRIER obtains records set forth in 49 C.F.R. § 371.3 by any means whatsoever, CARRIER agrees to refrain from utilizing such records in negotiating for the provision of services with any third party, including existing Customers of BROKER. CARRIER further agrees and understands that all such records comprise BROKER’s confidential information and trade-secrets. Nothing in this section is intended to relieve CARRIER of any other obligations imposed upon it by these Ts and Cs, or to limit any rights of BROKER to enforce such obligations.
SEVERABILITY. In the event that the operation of any portion of these Ts and Cs results in a violation of any law, the PARTIES agree that such portion shall be severable and that the remaining provisions of these Ts and Cs shall continue in full force and effect.
WAIVER. CARRIER and BROKER expressly waive any and all rights and remedies allowed under 49 U.S.C. § 14101 to the extent that such rights and remedies conflict with these Ts and Cs. Failure of BROKER to insist upon CARRIER’s performance under these Ts and Cs or to exercise any right or privilege arising hereunder shall not be a waiver of any BROKER’s rights or privileges herein.
NOTICE. With the exception of shipment-specific communications (including, but not limited to, rate confirmation forms, shipment specific instructions, status updates, proofs of delivery), all of which may be exchanged via email, fax or other electronic means, all notices or other communications required or permitted by these Ts and Cs shall be effective upon receipt; shall be in writing; and shall be personally delivered, or mailed by registered or certified mail, return receipt requested, or sent by an overnight delivery service which provides proof of delivery, or sent by telecopy with a duplicate copy sent by first class mail, postage prepaid, to the address included below.
|If to BROKER:
W8 Shipping, LLC
Attn: Darius Ziulpa
4895 Old Louisville Road
Savannah, GA 31408
Tel: +1 912 966 6820
Fax: +1 866 533 9903
Garden city, GA –
Carson, CA –
Linden, NJ –
Baytown, TX –
Tacoma, WA –
GOVERNING LAW, VENUE, AND DISPUTE RESOLUTION. These Ts and Cs shall be deemed to have been drawn in accordance with the statutes and laws of the United States and the State of Georgia. In the event of any disagreement or dispute, the laws of Georgia shall apply except to the extent superseded by applicable federal law. With respect to any legal or equitable action or proceeding arising from the relationship of the PARTIES or otherwise related to or arising from these Ts and Cs, the PARTIES hereby consent to the exclusive jurisdiction and venue of the courts of appropriate jurisdiction servicing Chatham County, Georgia, and waive jurisdiction of all other courts; provided, however, if BROKER is a party to a lawsuit involving a third-party, including any Customer, with respect to any claim for which CARRIER has potential liability to BROKER, BROKER may initiate suit against CARRIER in the same jurisdiction where the lawsuit involving BROKER is pending. The PARTIES hereby agree to the jurisdiction of such courts and waive any defenses to venue in or personal jurisdiction of such courts. Notwithstanding the foregoing, the PARTIES may mutually agree in writing to submit any such disagreement or dispute to binding arbitration.
COMPLETE AGREEMENT. Except as otherwise stated herein, these Ts and Cs constitute the entire agreement of the PARTIES with reference to the subject matters herein, and may not be changed, waived, or modified except in writing signed by both PARTIES.
W8 Shipping, LLC, Terms and Conditions Applicable to
Third Parties Providing Motor Carrier Services (Auto Hauler)