This agreement between OAK CITY FREIGHT BROKERAGE LLC of 3312 Northside Dr, Raleigh, NC 27615, hereinafter referred to as BROKER, and the undersigned CARRIER, hereinafter referred to as CARRIER.
IN CONSIDERATION OF THE MUTUAL PROMISES OF THE PARTIES, IT IS AGREED:
BROKER is a motor carrier transportation broker, authorized to operate under Federal Motor Carrier Safety Administration Docket MC-939906. CARRIER is in the business of transporting goods as a motor carrier. CARRIER represents that it has the authorities, licenses and equipment necessary to provide the services described in this Agreement. Under this Agreement, CARRIER will transport commodities from and to the points requested by BROKER, subject to the terms and conditions in this Agreement.
1) WHEREAS BROKER is licensed as a property broker by the Federal Motor Carrier Safety Administration (“FMCSA”), or by appropriate State agencies, and as a licensed broker, arranges for freight transportation; and
2) WHEREAS CARRIER is authorized to operate in inter-provincial, interstate and/or intrastate commerce and is qualified, competent and available to provide for the transportation services required by BROKER; and
NOW THEREFORE, intending to be legally bound, BROKER and CARRIER agree as follows:
1) TERM AND TERMINATION.
a) The Term of this Agreement will be for one (1) year and will automatically renew for successive one (1) year periods; provided, however, that either PARTY may terminate this Agreement at any time by giving thirty (30) days prior written notice.
b) BROKER may additionally terminate this Agreement immediately upon written notice in any of the following events: (i) CARRIER loses its operating authority or otherwise becomes disqualified to perform its obligations under this Agreement; (ii) CARRIER breaches any covenant, obligation, condition, or requirement imposed upon it by this Agreement, and such breach continues for a period of ten (10) days after written notice thereof from BROKER to CARRIER; (iii) CARRIER becomes insolvent or becomes unable to pay its debts in a timely manner; (iv) CARRIER fails to comply with the performance metrics or selection criteria, if any, imposed upon it at any time by BROKER; (v) CARRIER fails to procure and maintain any of the insurance coverages required by this Agreement; or (vi) CARRIER utilizes the services of any brokers or BROKERs or subcontracts transportation of freight tendered by BROKER hereunder to any third party motor carrier or other transportation provider or utilizes a third party logistics provider to perform its obligations under this Agreement without prior written consent of BROKER.
c) CARRIER may additionally terminate this Agreement immediately upon written notice if BROKER breaches any covenant, obligation, condition, or requirement imposed upon it by this Agreement and such breach continues for a period of thirty (30) days after written notice thereof from CARRIER.
2) CARRIER’S OPERATING AUTHORITY AND COMPLIANCE WITH LAW.
a) 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 contract carrier, the transportation services contemplated herein. If CARRIER provides transportation services for cargo that is defined as hazardous material under U.S. Department of Transportation (“DOT”),
b) CARRIER further agrees to comply with all Applicable Law in the performance of its services under this Agreement.
c) CARRIER 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 without limitation, the Federal Motor Carrier Safety Administration (“FMCSA”) of the DOT. CARRIER will monitor its scores in each Behavior Analysis and Safety Improvement Categories (“BASIC”) maintained by the FMCSA. In the event that CARRIER is assigned a “conditional” or equivalent safety rating or has two or more BASICs in excess of any Intervention Threshold, CARRIER will immediately notify BROKER in writing of such facts and will provide a corrective action plan intended to decrease scores to levels below the applicable Intervention Thresholds. In the event that CARRIER receives an unsatisfactory safety rating, is notified that it may receive an unsatisfactory safety, 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 will immediately notify BROKER of such fact and will not carry any loads or goods tendered to CARRIER by BROKER until such prohibition on operations is removed.
d) CARRIER represents and warrants that it will comply with the California Air Resources Board’s (“ARB”) Heavy-Duty Vehicle Greenhouse Gas (“Tractor-Trailer GHG”), Transport Refrigeration Unit (“TRU”) Airborne Toxic Control Measure (“ATCM”) and the On-Road Heavy-Duty Diesel Vehicle (“Truck & Bus Equipment”) regulations. To the extent any shipments hereunder are transported in or through the State of California, CARRIER certifies that it will only dispatch or utilize equipment that complies with the ARB’s Tractor-Trailer GHC emission reduction regulations, TRU ACTM in-use requirements and Truck & Bus Equipment regulations. CARRIER will liable for and will defend, indemnify and hold BROKER and its Customers harmless from and against any and all penalties, costs or any other liabilities imposed as a result of CARRIER’s noncompliance with the ARB regulations.
3) PERFORMANCE OF SERVICES.
a) CARRIER’s services under this Agreement are designed to meet the needs of BROKER under the specified rates and conditions set forth herein. CARRIER agrees that the terms and conditions of this Agreement apply to all shipments handled by CARRIER for BROKER and that the terms of this Agreement control the relationship between the PARTIES. Regardless of whether they are required by law, in no event will any provisions of CARRIER’s tariff, terms and conditions, service guide, bill of lading, or similar documentation apply to services provided under this Agreement.
b) CARRIER will transport all shipments provided under this Agreement without delay, and all occurrences which would be probable or certain to cause delay will be immediately communicated to BROKER by CARRIER. This Agreement does not grant CARRIER an exclusive right to perform any transportation related services for BROKER or its Customer.
c) CARRIER will not accept any shipments it is not properly licensed, qualified or certified to transport and will immediately notify BROKER of its refusal.
4) RECEIPTS AND BILLS OF LADING.
a) Each shipment hereunder will 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 will not affect its status as a property broker. Upon delivery of each shipment made hereunder, CARRIER will 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 will cause such receipt to be signed by the consignee. No terms, conditions and provisions of the bill of lading, manifest or other form of receipt or contract will apply to services provided under this Agreement. CARRIER’s failure to issue a bill of lading will not affect its liability hereunder. CARRIER will notify BROKER immediately of any exception made on the bill of lading or delivery receipt. CARRIER will provide a completed bill of lading or receipt to BROKER accompanying each freight bill within seven (7) days of the delivery of each shipment. Each bill of lading, receipt, and freight bill will contain the dispatch load number assigned to that shipment by BROKER at the time of dispatch.
5) CUSTOMER SPECIFIC ADDENDUM(S).
a) BROKER and CARRIER may enter into and execute one or more Customer-specific written addenda (each a “Customer Specific Addendum”) to this Agreement for the purpose of amending this Agreement to add provisions which will be applicable to a specific named Customer. If any provision contained in a Customer Specific Addendum to this Agreement conflicts with any provision contained in this Agreement, the provision of the Customer Specific Addendum to this Agreement will govern.
6) CARRIER’S OPERATIONS.
a) CARRIER will, at its sole cost and expense:
i) Furnish all equipment necessary or required for the performance of its obligations hereunder (the “Equipment”);
ii) pay all expenses related, in any way, with the use and operation of the Equipment; and
iii) maintain the Equipment in good repair, mechanical condition and appearance.
b) CARRIER will utilize only competent, able and legally licensed personnel in the performance of services hereunder. CARRIER will have full control of such personnel. CARRIER will 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 this Agreement.
c) CARRIER will 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.
d) CARRIER will be solely responsible for compliance with all provisions of Applicable Law regarding over-dimension and overweight loads. CARRIER will 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.
e) CARRIER will maintain appropriate security infrastructure to ensure the physical security of shipments and equipment handled under the terms of this Agreement.
f) CARRIER will be responsible for ensuring that Equipment is clean, odor free, dry, leak proof and free of contamination and infestation. CARRIER will comply with any and all Applicable Laws regarding transportation of food grade product, if applicable, and will likewise comply with all governmental guidance documents regarding safe and sanitary transportation of food which obligations will include, but will not be limited to, compliance with the Food and Drug Administration’s (“FDA”) documents as published on the FDA’s website and as amended from time to time.
g) CARRIER will comply with all safety and security rules, requirements and procedures of each shipper and consignee while on its premises.
7) RATES & PAYMENTS.
a) CARRIER will invoice and BROKER will pay the rates and charges set forth in the separate Rate Confirmation Agreement, for transportation services performed under this Agreement. CARRIER will send invoices to BROKER. CARRIER represents and warrants that there are no other applicable rates or charges except those established in this Agreement or in any Rate Confirmation Sheet signed by BROKER.
b) Acceptance of the Rate Confirmation Agreement will be made by signature and returned by CARRIER to BROKER or by actual acceptance of the tendered shipment.
c) Payment by BROKER will be made within thirty (30) days of receipt by BROKER of CARRIER’s freight bill, bill of lading, clear delivery receipt, and any other necessary billing documents enabling BROKER to ascertain that service has been provided at the agreed upon charge. CARRIER’s failure to provide BROKER with a legible copy of the bill of lading or other proof of delivery 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 to BROKER.
d) 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.
e) Compensation paid to CARRIER under this Agreement maybe withheld in whole or in part by BROKER to satisfy claims or shortages arising in connection with any shipment transported by CARRIER for BROKER, to satisfy advances made to or on behalf of CARRIER, or to satisfy any other debt owed by CARRIER to BROKER. BROKER’s withholding of compensation will not allow or permit CARRIER to seek payment from shipper, receiver, Customer, or any third party, and CARRIER agrees that it will not, under any circumstances, claim, demand, or pursue payment from shipper, receiver, Customer, or any third party for transportation services provided hereunder.
f) CARRIER will waive its right for payment of any freight bills not submitted for payment within 15 days of delivery or waive its right to payment for services rendered with respect to such late submitted invoices. 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 will 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 will be waived.
g) CARRIER will provide BROKER at least 30 days’ written notice prior to any assignment, factoring or other transfer of any of its rights to receive payments from BROKER under this Agreement. Written notice will include the correct legal name and address of the assignee, transferee or factoring entity; the effective date of the assignment, transfer or factoring arrangement; the terms of the assignment; and a written confirmation from the assignee, transferee or factoring entity that such assignment, transfer or factoring arrangement is, in fact, in existence. Any such notice will be effective only upon actual receipt by BROKER. BROKER does not in any way guaranty that it will be able to recognize any such assignment, transfer or factoring arrangement, and CARRIER agrees to defend, indemnify and hold BROKER harmless from and against any costs, expenses or fees (including attorneys’ fees) which BROKER may incur as a result of BROKER’s inability, failure or refusal to comply with CARRIER’s transfer, assignment or factoring directions. CARRIER will be allowed to have only one assignment, transfer or factoring arrangement in effect at any one point in time, and no multiple assignments, factoring or transfers by CARRIER will be permitted. CARRIER also releases and waives any right, claim or action against BROKER for any amounts due or owing under this Agreement if BROKER fails or refuses to comply with any such assignment, transfer or factoring arrangement or where CARRIER has not complied with the notice requirements herein.
8) WAIVER OF CARRIER’S LIEN.
a) CARRIER will not withhold any goods transported under this Agreement on account of any dispute as to rates or any alleged failure of BROKER to pay charges incurred under this Agreement. CARRIER is relying upon the general credit of BROKER and hereby waives and releases all liens which CARRIER might otherwise have to any goods of BROKER or its Customer in the possession or control of CARRIER.
9) FREIGHT LOSS, DAMAGE OR DELAY.
a) CARRIER will have the sole and exclusive care, custody and control of the cargo tendered here under from the time it is delivered to CARRIER for transportation until delivery to the consignee accompanied by the appropriate receipts. CARRIER will 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.
b) 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 goods or property tendered to CARRIER pursuant to this Agreement from the time the shipment is tendered to CARRIER until delivery.
c) CARRIER will 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 will apply unless specifically agreed to in writing by BROKER prior to CARRIER’s receipt of the specific shipments to which such limitation applies, and BROKER’s agreement to a limitation will not be construed as a waiver of full value liability with respect to any other goods tendered to CARRIER.
d) 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 will pay to BROKER, or allow BROKER to deduct from the amount BROKER owes CARRIER, Customer’s full actual loss for the kind and quantity of commodities so lost, delayed, damaged or destroyed. Payments by CARRIER to BROKER or its Customer, pursuant to the provisions of this section, will be made within thirty (30) days following receipt by CARRIER of BROKER’s or Customer’s undisputed claim and supporting documentation. CARRIER will fully assist BROKER in investigating any claim for cargo loss, damage, delay, or destruction.
e) CARRIER waives any right to salvage goods subject to this provision, as well as any right to claim an offset for the value of salvage.
f) Exclusions from coverage contained in CARRIER’s Cargo Insurance as required herein will not affect CARRIER’s liability for freight loss, damage, or delay.
a) Unless greater insurance limits are required in a separate agreement or by law, CARRIER agrees to procure and maintain, at its sole cost and expense, the following insurance coverage:
i) Auto liability and property damage insurance (“AL”) with an AM Best A- Rated, 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, and extending to “Any Auto” or “All Owned, Hired and Non-Owned Autos.” “Scheduled Autos” is acceptable provided the specific vehicle to be utilized is named on CARRIER’s insurance schedule. CARRIER’s AL policy will cover all vehicles used by CARRIER to transport goods or property tendered to CARRIER pursuant to this Agreement, including coverage for all liabilities for personal injury (including death) and property damage arising out of CARRIER’s transportation services. CARRIER attests that it will only use vehicles which are properly insured or scheduled on CARRIER’s AL policy. In the event a vehicle is not scheduled or covered by CARRIER’s AL policy and is used to transport goods or property tendered to CARRIER pursuant to this Agreement, CARRIER will be solely liable and CARRIER will defend, indemnify and hold harmless BROKER and the Customer from and against any and all losses, liabilities, damages, claims, fines, penalties, costs and expenses, including reasonable attorney’s fees, arising out of or in any way related to CARRIER’s performance or breach of any terms contained herein.
ii) Commercial general liability (“CGL”) 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, $2,000,000.00 (U.S. Dollars) general aggregate, which insurance will provide coverage for contractual liabilities assumed under this Agreement.
iii) Broad Form Motor Truck Cargo Legal Liability (“Cargo”) insurance in an amount not less than $100,000.00 (U.S. Dollars) per occurrence. The coverage provided under the policy will 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 this Agreement, loss and damage occurring outside the United States, commodity exclusions (including those related to cargo intended for human consumption), refrigerator breakdown or lack of refrigerator fuel.
iv) Statutory Workers’ Compensation Insurance coverage in such amounts and in such form as required by applicable state law, including Employer’s Liability Insurance coverage in an amount not less than $500,000 (U.S. Dollars) per occurrence.
b) All insurance policies required by this Agreement will, as applicable, be primary and non-contributory and will waive subrogation and contribution against BROKER. CARRIER will furnish to BROKER written certificates showing that such insurance has been procured and is being properly maintained, the amount of any deductibles, self-insured retentions or the like applying to each policy, the name of the insurer, insurance underwriter, producer or issuing agency, the policy number(s), and the expiration date(s). In the event of cancellation or modification of any policy, written notice will be given to BROKER at least thirty (30) days prior to the effective date of such cancellation or modification. Should CARRIER’s insurance be cancelled at any time for any reason whatsoever, CARRIER must notify BROKER immediately and CARRIER will not accept any further shipments. In addition, BROKER will be named as an additional insured on CARRIER’s AL and CGL policies, and as a loss payee on the Cargo policy as evidenced by an endorsement on the certificates of insurance. Upon request of BROKER or its designated insurance consultant, CARRIER will provide BROKER, BROKER’s consultant, or Customer with copies of the applicable insurance policies.
c) The insurance provided by CARRIER here under will completely and unconditionally apply and extend to and cover losses or liabilities occasioned by any and all independent contractors, subcontractors, agents, employees or owner operators of any tier utilized by CARRIER to transport freight tendered by BROKER. Certificates of insurance provided to BROKER will specify such application to and coverage of such independent contractors, subcontractors, agents, employees and owner operators.
d) CARRIER will be responsible for all premiums and deductibles. No policy will have a deductible, retentionor the like in excess of $5,000.00 (U.S. Dollars).
e) Failure of BROKER to demand a certificate of insurance or failure of BROKER to identify a deficiency in CARRIER’s certificate of insurance will not be construed as a waiver of CARRIER’s obligation to maintain such insurance. It is expressly understood that BROKER does not represent that the coverage and limits of insurance set forth herein will necessarily be adequate to protect CARRIER. Furthermore, CARRIER’s liability for cargo loss or damage as set forth in Paragraph 9 above and its indemnification obligation set forth in Paragraph 12 below will not be reduced or limited by CARRIER’s insurance policy limits.
11) USE OF BROKER OR CUSTOMER’S TRAILER(S) BY CARRIER.
a) In the event that CARRIER utilizes a trailer owned by or leased to BROKER or its Customer, or otherwise provided to CARRIER by BROKER or its Customer (“Trailer(s)”) for the performance of the Services contemplated hereunder, CARRIER will be liable for any damage to Trailers, destruction of Trailers, theft from Trailers, theft of any contents of Trailers, and for any claims for bodily injury (including death) or property damage caused by any Trailer(s) regardless of whether such damage, injury, destruction, or theft is caused or occurs while the Trailer is attached or unattached to any power unit operated by CARRIER, except to the extent such damage, destruction, or theft is caused by the negligence, recklessness, or willful misconduct of BROKER or the Customer. The initial burden of proving such damage, injury, destruction, or theft was the result of the negligence, recklessness, or willful misconduct of BROKER or the Customer in any proceeding brought pursuant to this Agreement will rest on CARRIER. In the event that applicable state law does not allow waiver of liability to the extent contained in this provision, the Parties expressly agree that BROKER’s and Customer’s liability will be waived to the fullest extent allowed by applicable state law.
a) CARRIER will defend, indemnify, and hold BROKER and the Customer harmless from and against all loss, liability, damage, claim, fine, cost or expense, including reasonable attorney’s fees, arising out of or in any way related to the performance or breach of this Agreement 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, CARRIER’s possession, use, maintenance, custody or operation of the Equipment and CARRIER’s failure to procure and maintain the required insurance coverage under this Agreement; provided, however, that CARRIER’s indemnification and hold harmless obligations under this paragraph will not apply to the prorated extent that any Claim is attributable to the negligence or other wrongful conduct of BROKER or the Customer. CARRIER’s liability for cargo loss or damage under this provision is limited to the liability and amounts set forth in Paragraph 9.
13) CONFIDENTIALITY AND NON-SOLICITATION.
a) Neither party may disclose the terms of this Agreement to a third party without the written consent of the other party.
b) CARRIER agrees to forever protect and keep confidential BROKER’s trade secrets and confidential and proprietary information and will never, directly or indirectly, disclose any of BROKER’s trade secrets or confidential or proprietary information. CARRIER may disclose trade secrets or confidential or proprietary information only when authorized or directed to do so by BROKER in writing. The following things are considered to be BROKER’s trade secrets and/or confidential or proprietary business information:
i) The names and addresses of BROKER’s past or present customers, the products or services produced or used by those customers, and any other information relating to those customers;
ii) The names and addresses of people and entities whose business BROKER may have solicited, bid for, or otherwise attempted to obtain, the products or services produced or used by those people or entities, and any other information relating to those people or entities, whether or not BROKER actually obtained that business;
iii) The commodities shipped or otherwise handled by BROKER, origin points from which those commodities have been, are or may be shipped, destinations to which those commodities have been, are or may be shipped, weights or volumes of commodities shipped or proposed to be shipped, prices quoted or charged by BROKER for any actual or proposed shipments and any other information relating to shipments or services provided by BROKER or which BROKER may have at any time proposed to provide;
iv) Any and all of the methods or means by which BROKER conducts its business, such as means or methods for directing movement of trucks; hiring, training, compensating, disciplining, or discharging employees or independent contractors; office, accounting and operating procedures; methods, techniques and programs for soliciting business; and billing and collection procedures;
v) Costs and expenses of operating BROKER’s business and costs of operating on the part of independent contractors used by BROKER, such as wages, fuel expenses, taxes of any type, permit and license fees and expenses, fines and penalties, repair costs and expenses, maintenance costs and expenses, financing costs and expenses, professional service fees, or any other similar or related costs, expenses or fees;
vi) Information concerning any of BROKER’s past, present or potential suppliers, the sources, types and quantities of goods or services and the prices at which those goods or services were or are furnished or offered; and
vii) Any other information which BROKER tells CARRIER, either orally or in writing, is secret or confidential, or which, from all of the circumstances, it may reasonably be determined, assumed or inferred by CARRIER that the information is or should be considered secret or confidential.
c) The foregoing confidentiality obligations of CARRIER and BROKER do not apply to the extent that disclosure is (1) required by law or regulation; (2) made to its parent, subsidiary or affiliate company; or (3) made to facilitate rating or auditing of transportation charges by an authorized agent and such agent agrees to keep the terms of the Agreement confidential
d) CARRIER will not accept traffic, either directly or indirectly, from any shipper, consignor, consignee or 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 the shipper, consignor, consignee or customer of BROKER was first tendered to CARRIER by BROKER. If CARRIER breaches this Agreement and moves shipments obtained from such parties during the term of this Agreement or for twelve (12) months thereafter without utilizing the services of BROKER, CARRIER will 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 will provide BROKER with all documentation requested by BROKER to verify such transportation revenue.
e) CARRIER will not utilize BROKER’s or the Customer’s name or identity in any advertising or promotional communications without written confirmation of BROKER consent.
14) SUB-CONTRACT AND SUBSTITUTED SERVICES PROHIBITION.
a) CARRIER specifically agrees that all freight tendered to it by BROKER will be transported on equipment operated only under the authority of CARRIER, and that CARRIER will not in any manner sub-contract, interline, use substituted services by rail or any other modes of transportation, broker or in any other form arrange for the freight to be transported by a third party without the prior written consent of BROKER. Any such subcontracting, with or without notice or consent, will not affect CARRIER’s responsibilities or liabilities under this Agreement. CARRIER will remain primarily and jointly liable to BROKER as if CARRIER transported such freight under its own authority in accordance with this Agreement, and will further defend, indemnify and hold BROKER and its Customer harmless 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. Notwithstanding the foregoing, BROKER may, in its sole discretion, withhold payment to CARRIER and make payment directly to the subcontractor or third party.
15) BROKER’S RECORDS.
a) To the extent allowable under Applicable Law, 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 this Agreement, or to limit any rights of BROKER to enforce such obligations.
16) ASSIGNMENT/MODIFICATION/BENEFIT OF AGREEMENT.
a) This Agreement may not be assigned or transferred in whole or in part by CARRIER absent the prior written consent of BROKER, and supersedes all other agreements and all tariffs, rates, classifications and schedules published, filed or otherwise maintained by CARRIER. This Agreement will be binding upon and inure to the benefit of the parties hereto.
a) In the event that the operation of any portion of this Agreement results in a violation of any law, the parties agree that such portion will be severable and that the remaining provisions of this Agreement will continue in full force and effect.
a) 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 this Agreement. Failure of BROKER to insist upon CARRIER’s performance under this Agreement or to exercise any right or privilege arising hereunder will not be a waiver of any BROKER’s rights or privileges herein.
19) DISPUTE RESOLUTION.
a) Having entered into this Agreement in good faith, the PARTIES agree that the following will occur with respect to any dispute arising from or related to this Agreement:
i) Either PARTY may give Prior Notice to the other regarding the existence of a dispute. Within the thirty (30) days following the date of the Notice, representatives of the PARTIES with full settlement authority will meet and confer at least once in an effort to resolve the dispute among them. If such efforts fail, the PARTIES will engage an experienced mediator upon such terms and such cost allocation as may be mutually agreeable to the PARTIES.
ii) If after the expiration of the thirty (30) day period set forth above a dispute is not resolved voluntarily, the PARTIES will submit the matter for final and binding arbitration under the Commercial Rules of the American Arbitration Association (“AAA”), as modified herein, before a single arbitrator with appropriate subject matter expertise. Such arbitration will take place at a location selected by BROKER in Raleigh, North Carolina.
iii) If the PARTIES are unable to agree on an arbitrator, the PARTIES will each select one arbitrator which arbitrators will then select a third arbitrator who will hear the dispute.
b) Discretion of Arbitrator;
i) In any arbitration hereunder, or any other dispute resolution forum mutually agreed upon by the PARTIES, the laws of the state of North Carolina will govern without resort to the choice of law rules thereof.
ii) The arbitrator will have the power to order the PARTIES to present evidence, including documents or testimony that the arbitrator deems necessary to the rendering of a fair and equitable decision. The arbitrator will have the final judgment, in accordance with the federal rules of civil procedure as to what evidence and testimony to permit to be entered in the proceeding and the weight to be accorded each.
iii) The arbitrator will have no power to award punitive damages and any award of damages will be limited to actual damages.
iv) The PARTIES expressly agree that this Agreement will confer no power or authority upon the arbitrator to render any judgment or award that is erroneous in its application of the terms of this Agreement or substantive law.
c) Notwithstanding the foregoing Dispute Resolution obligations, either Party will have the right to commence litigation for any dispute seeking damages in excess of $10,000.00 (U.S. Dollars).
20) COMPLETE AGREEMENT.
a) This Agreement constitutes 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.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed in their respective names by their duly authorized representatives as of the date first above written.