Broker/Carrier Terms and Conditions

These Terms and Conditions specify the terms and conditions under which FREIGHTECH engages any Broker or Carrier (hereinafter “Carrier”) to perform transportation and/or other carriage services related to the shipment of freight and related services for FREIGHTECH (the “Services”), and under which the Carrier will render those Services. FREIGHTECH and Carrier are collectively hereinafter referred to as the “Parties”.

1. LEGAL STATUS OF PARTIES AND SERVICES.

1.1 Representations. Carrier represents and warrants that it is duly registered with Federal Motor Safety Carrier Administration (hereinafter “FMCSA”) as a property transportation broker, freight forwarder or for-hire motor carrier of property in interstate and foreign commerce pursuant to 49 U.S.C. §§13901 et seq. If such registration is no longer required in the future, Carrier represents and warrants that it meets the definition of “broker” found at 49 U.S.C. §13102(2); “carrier” found at 49 U.S.C. §13102(3)(4)(6)(7)(14) or (15); “freight forwarder” found at 49 U.S.C. §13102(8) and shall function accordingly. The Parties shall render all Services in a competent and professional manner, and in accordance with all applicable federal and state laws and regulations of the jurisdiction(s) within which the Services are rendered.

1.2 Relationship of Parties. The relationship of FREIGHTECH to Carrier is that of an independent contractor. These Terms and Conditions do not intend to provide for division of profits between FREIGHTECH, Carrier and/or any shipper, or to clothe or otherwise empower Carrier and/or any shipper with joint control over Carrier’s performance of the Services, or otherwise to create a de facto or de jure joint venture, joint enterprise or partnership between FREIGHTECH, Carrier and/or any shipper. Under no circumstances shall employees or agents of Carrier be deemed employees or agents of FREIGHTECH, nor shall FREIGHTECH be liable for any wages, fees, payroll taxes, assessments, workmen compensation insurance, other insurance or other expenses relating to employees or agents of Carrier

2. SCOPE OF SERVICES.

2.1 Territories and Commodities. Under no circumstances shall Carrier render Services beyond the scope of its FMCSA registration (as it may be amended from time to time) unless the Services are exempt from legal requirements for such registration or authority.

2.2 Subcontracting. Carrier shall not subcontract any Services to third parties without giving prior written notice to FREIGHTECH and obtaining FREIGHTECH’s written consent thereto. Any such subcontracting, with or without notice and consent, shall not affect Carrier’s responsibilities or liabilities to FREIGHTECH under the Agreement or these Terms and Conditions. As between FREIGHTECH and Carrier, all costs of rendering the Services (including compensation of subcontractors as well as payment of all taxes or other governmental assessments imposed on Carrier) shall be borne solely and exclusively by Carrier. This prohibition against subcontracting does not apply to a person leased to the Carrier pursuant to the provisions of 49 C.F.R. Part 376.

2.3 Non-Exclusivity of Services. Neither Party intends to give the other Party any exclusive rights or privileges under this Agreement. Except as otherwise stated in the Agreement or these Terms and Conditions, either Party may contract with or otherwise provide service to any other motor carrier, broker, freight forwarder or other intermediary.

3. RATES, CHARGES, TERMS AND CONDITIONS FOR SERVICES.

3.1 Rates and Charges. Carrier shall charge a fee or fees commensurate with the rates and charges set forth in the Agreement as and for its sole and exclusive compensation for rendering the Services (including any Services subcontracted to third parties or performed in a capacity other than as a motor carrier, with or without the notices and consents required under Section 2.2 hereof). No shipment tendered by FREIGHTECH shall be subject to rates or charges set forth in any tariff or rate schedule maintained by Carrier, unless those rates and charges are specifically set forth in a separate Bill of Lading, Load Confirmation and Payment Agreement or similar document between the parties.

3.2 Invoicing and Payment. Invoicing procedures, payment due dates and any late payment penalties shall be as specifically set forth herein. Except as otherwise provided, the Parties agree as follows:

(a) it shall be Carrier’s responsibility to invoice FREIGHTECH for the freight charges owing to Carrier.

(b) it shall be Carrier’s responsibility to provide FREIGHTECH with signed proof of delivery within two (2) business days of delivery. If the Carrier fails to provide FREIGHTECH with such proof of delivery as required herein, Carrier shall be obligated to pay an administrative fee in the amount of One Hundred and 00/100 ($100.00) Dollars per delivery to pay for the administrative costs that will be incurred by FREIGHTECH to confirm delivery.

(c) it shall be FREIGHTECH’s responsibility to invoice Shippers for Carrier’s freight charges and FREIGHTECH’s commissions or other fees, and to take necessary measures to collect such invoices.

(d) Carrier will have no responsibility for collection or payment of FREIGHTECH’s commissions or other fees and is expressly precluded from contacting any Shippers directly without the written consent of FREIGHTECH.

3.3 Pricing Disputes. If Carrier alleges underpayment of applicable freight rates and charges by FREIGHTECH, or if FREIGHTECH alleges overcharges, overcollection or receipt of duplicate payments to Carrier, notice of such claims must be given in writing by the aggrieved Party to the other Party within one hundred eighty (180) days after delivery or the first attempted delivery of the involved shipment(s) by Carrier. The Party receiving any such claim shall process it in accordance with the provisions codified at 49 C.F.R. Part 378. Any civil action or arbitration proceeding with respect to such a claim shall be filed within eighteen (18) months after delivery or the first attempted delivery of the involved shipment(s) by Carrier.

3.4 Customs and Security Requirements.

(a) Carrier shall be responsible for ensuring compliance with those customs and security laws that are applicable to brokers and/or motor carriers transporting goods either domestically in the United States or for import or export from or to the United States.

(b) FREIGHTECH shall be responsible for ensuring that the shipper and consignee of any freight tendered to Carrier under the Agreement is in compliance with all customs and security laws of the United States and other country, as applicable, with respect to motor carrier transportation of goods either domestically in the United States or for import or export from or to the United States, including the preparation of all documents and the payment of all applicable fees required by any government agency

4. FREIGHT DOCUMENTATION.

4.1 Applicability of Terms and Conditions. These Terms and Conditions shall apply to all shipments tendered to Carrier, shall be deemed incorporated by reference in any Load Confirmation and Payment Agreement and shall take precedence over any conflicting terms contained in any bill of lading, receipt or other transportation document issued for all shipments tendered by a shipper within the scope of the Services.

4.2 Bill of Lading, Load Confirmation and Payment Agreement. FREIGHTECH shall issue a bill of lading, in compliance with governing law(s) at the place of origin, including without limitation 49 C.F.R. §373.101 (and any amendments thereto) to the extent applicable, for the property it receives for transportation by Carrier and a Load Confirmation and Payment Agreement confirms any terms and conditions specific to any given shipment. Unless otherwise agreed in writing, Carrier shall become fully responsible/liable for the freight when it takes/receives possession thereof, and the trailer(s) is loaded, regardless of whether a bill of lading has been issued, and/or signed, and/or delivered to Carrier, and which responsibility/liability shall continue until delivery of the shipment to the consignee and the consignee signs the bill of lading or delivery receipt confirming delivery. Any terms contained within any bill of lading (including but not limited to payment and credit terms, released rates or released value and/or any bill of lading terms as may be deemed applicable under applicable law) inconsistent with these Terms and Conditions shall be ineffective. Failure to issue a Bill of Lading or Load Confirmation and Payment Agreement or to sign either document acknowledging receipt of the cargo, by Carrier, shall not affect the liability of Carrier.

5. INSURANCE; BOND.

5.1 Carrier Bond. Carrier shall maintain a surety bond/trust in an amount no less than statutorily required. The form and terms of the bond shall be consistent with the provisions of FMCSA.

5.2 Carrier Insurance. Carrier shall maintain: (i) cargo liability insurance in the amount of as provided by the FMSC; (ii) Commercial general liability insurance (including blanket contractual coverage) for bodily injury and property damage in the minimum combined single limit of $1,000,000.00 per occurrence or such greater amount as may be required of Carrier, in general or for a shipment in particular, as required by FREIGHTECH; (iii) Commercial Automobile liability insurance for bodily injury (including death) and property damage in the minimum combined single limit per occurrence of $1,000,000.00 or such greater amount as may be required of TSP, in general or for a shipment in particular, by any of the Authorities; (iv) Employer’s liability insurance in the amount of not less than $100,000.00 combined single limit per occurrence; and (v) workers compensation insurance in full compliance with the laws of all of the states and provinces in which the transportation services shall be performed, covering Carrier and its employees in such amounts as are required by such laws.

5.3 Certificate of Insurance. Carrier shall furnish FREIGHTECH with certificates from the insurers or trustee evidencing such coverages and providing for not less than thirty (30) days’ advance written notice of cancellation or non-renewal of coverage or trust or shall cause the insurers or trustee to name FREIGHTECH as an additional insured or beneficiary for the sole purpose of receiving such 30-day advance written notices of cancellation or non-renewal. FREIGHTECH shall, upon request by FREIGHTECH, be added and identified as an additional insured to any of Carrier’s insurance policies and provide evidence of the certificate of insurance to FREIGHTECH.

6.1. Generally. Except as otherwise provided herein, Carrier’s liability for cargo loss or damage shall be governed by the provisions of 49 U.S.C. §14706. Claims for loss of or damage to cargo shall be filed and processed in accordance with 49 C.F.R. Part 370. Claims must be filed, and any litigation on such claims must be commenced, within the minimum time frames (9 months and two years, respectively) as permitted in 49 U.S.C. §14706(e).

6.2 Carrier Liability. Upon taking possession of the freight until delivery to the consignee accompanied by the appropriate receipt, Carrier shall assume full liability equal to the current NMFC classification system, for loss, damage to or destruction of any and all of the Shipper’s freight while under Carrier’s care, custody, or control subject to defenses related to intervening causes.

6.3 Sealed Trailers. If a shipper loads and seals a trailer or semitrailer tendered to Carrier without a representative of Carrier inspecting and counting the cargo during the loading process, Carrier shall be absolved of any liability for shortages or damage, if and only if, upon delivery of the trailer or semitrailer the seal is intact. Carrier shall be similarly absolved if the seal was broken only at the direction and under the supervision of an agent for the Bureau of Customs and Border Protection or other governmental authority and Carrier applies another seal to the trailer under the observation of said Customs and Border Protection agent and notes the new seal number on the uniform receipt or other shipping document.

6.4 Shipper’s Load and Count. If a Shipper preloads trailers or semitrailers and a representative of Carrier is not present to verify cargo count or stowage adequacy during the loading process, the load shall be considered as moving on a “shipper’s load and count” basis regardless of whether it is sealed or whether “SL&C” or a similar notation appears on the Uniform Receipt.

7. REFUSED FREIGHT, SALVAGE, AND WAREHOUSE LIABILITY.

The provisions of the most current version of the National Motor Freight Classification’s Uniform Straight Bill of Lading governing refused freight, salvage and Carrier’s status and liability as a Warehouse shall be incorporated by reference into these Terms and Conditions to the extent not inconsistent with these Terms and Conditions. In the event of a conflict in terms, these Terms and Conditions shall govern.

8. INDEMNIFICATION; NO CONSEQUENTIAL DAMAGES.

8.1 Hold Harmless. Except as otherwise specifically provided in Section 6 hereof with regard to cargo loss and damage liability, Carrier shall defend and indemnify and hold harmless FREIGHTECH and its customers from and against all loss, damage, expense, actions, and claims for injury to persons (including injury resulting in death) and damage to property caused, in whole or in part, by acts or omissions of Carrier related to Carrier’s provision of any Services pursuant to these Terms and Conditions, including, but not limited to, loading, handling, transportation or unloading of the freight hereunder.

8.2 Consequential Damages Excluded. EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED HEREIN, NEITHER PARTY SHALL BE LIABLE TO THE OTHER AND FREIGHTECH SHALL NOT BE LIABLE TO CARRIER OR INDEMNIFY CARRIER FOR ANY LIABILITY TO CARRIER FOR ANY INDIRECT OR CONSEQUENTIAL DAMAGES (SUCH AS, BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF MARKET, LOSS OF CUSTOMER GOODWILL, ASSEMBLY LINE SHUTDOWNS, OR PUNITIVE OR EXEMPLARY DAMAGES), REGARDLESS OF WHETHER THE CLAIM FOR SUCH DAMAGES SOUNDS IN CONTRACT, TORT, BREACH OF WARRANTY, CONSUMER FRAUD, OR OTHERWISE.

9. FORCE MAJEURE; LEGAL RESTRAINT.

If either FREIGHTECH or Carrier is prevented from or delayed in performing any Services or other obligations under the Agreement or these Terms and Conditions by reason of statutes, regulations or orders of a governmental entity (including actions taken by a court or by law enforcement officials), or because of war, terrorism, acts of God, labor disturbances, civil unrest, or any cause beyond the reasonable control of such Party, that Party shall not be liable to the other Party for damages by reason of any delay or suspension of performance resulting from such legal restraints or force majeure. The Party invoking this Section 9, however, shall furnish the other Party with subsequent notice of same no more than two business days after the onset of the conditions delaying or preventing performance.

10. DISPUTE RESOLUTION.

10.1 Venue. The Parties agree that any disputes arising under these Terms and Conditions, Bill of Lading or Load Confirmation and Payment Agreement shall be litigated in the State of Illinois, County of Cook. For that purpose, both parties agree to submit to the venue and jurisdictional requirements of the Illinois state or federal courts.

10.2 Notice of Dispute. 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 shall meet and confer at least once in an effort to resolve the dispute among themselves as a condition precedent to the initiation of any formal legal action.

10.3 Attorneys’ Fees and Costs. In the event of any judicial or other adversarial proceeding between FREIGHTECH and Carrier, Carrier agrees to pay any and all reasonable attorneys’ fees and other costs in addition to any other relief to which FREIGHTECH may be entitled to by FREIGHTECH in enforcing any term(s) of the Agreement or these Terms and Conditions.

11. CONFIDENTIALITY; BACK-SOLICITATION.

Except to the extent required by law, neither Party shall disclose to third parties (other than to freight bill auditors, prospective capital providers, and outside professionals, if such parties agree to similar confidentiality terms) either the terms of the Agreement or any confidential or proprietary information either Party learns about the other in the course of performing Services under these Terms and Conditions, including but not limited to software, business methods, customer lists, or the rates, valuation, origin, destination and consignee identity for any shipment within the scope of the Services. Carrier shall refrain from directly soliciting freight business during the term of this Agreement, or for twelve (12) months thereafter, from any customer, shipper or other entity which (i) was not solicited by Carrier prior to entering into the Agreement with FREIGHTECH.

12. DEFAULT.

12.1 The Agreement, these Terms and Conditions, and any and all rights of FREIGHTECH hereunder and any and all obligations of Carrier hereunder shall immediately terminate without the requirement of any notice to Carrier, upon occurrence of any of the following:

(a) The cessation by Carrier of its business, or unofficial or de facto cessation thereof;

(b) The insolvency of Carrier;

(c) The filing by or against Carrier of a voluntary or involuntary petition pursuant to any present or future act of the Federal Congress on the subject of bankruptcy, which petition is consented to by TSP or has not been dismissed within thirty (30) days after such filing.

(d) The institution of any proceeding or arrangement by or against Carrier relating to or in the nature of a bankruptcy, insolvency or assignment for the benefit of creditors, which proceedings or arrangement is consented to by Carrier or is not dismissed or discontinued within thirty (30) days after the institution of such proceeding or arrangement.

12.2 Should either party refuse or fail to perform any duty, obligation or responsibility required by the terms of the Agreement or these Terms and Conditions, or disregard laws or regulations applicable to performance under the terms of the Agreement or these Terms and Conditions, either Party may, upon written notice from the aggrieved party to the offending party and the offending Party’s failure to cure such refusal or failure within a reasonable period of time that in no event shall exceed ten (10) days, without prejudice to any other right or remedy, terminate the Agreement after giving the other party at least thirty (30) days prior written notice of such termination.

12.3 The failure of either party to give notice of non-performance or termination shall not constitute a waiver of the covenants, terms, or conditions, or to terminate the Agreement upon any subsequent occurrence or date.

13. MISCELLANEOUS.

13.1. Governing Law. Except to the extent that the application of such laws is prohibited by the provisions of 49 U.S.C. §14501(c) or other law, these Terms and Conditions shall be interpreted in accordance with the laws of the State of Illinois, disregarding any choice-of-law principle under which that State would look to the laws of another jurisdiction.

13.2. Notices. Any Notice required or permitted under the Agreement shall be deemed sufficient if sent by certified mail, return receipt requested, or by a nationally recognized overnight courier providing package tracking information. Notices shall be considered to have been received by the addressee Party on the next business day after actual receipt as evidenced by tracking or facsimile confirmation that the there was a successful transmission.

13.3. Entire Agreement; Amendments. These Terms and Conditions represents the entire agreement and understanding of the Parties with regard to its subject matter. No prior understandings or agreements of the Parties, whether written or oral, nor any documents not specifically incorporated into these Terms and Conditions, nor any course of conduct of the Parties before or after the date of the Agreement, shall have the effect of modifying the Parties’ rights and obligations under these Terms and Conditions in any way. No amendment to these Terms and Conditions shall be valid unless it is set forth in writing, specifies an effective date for the amendments, and is signed by designated contacts of both Parties.

13.4. Severability. To the extent that any provision of these Terms and Conditions may be held to be invalid or unenforceable by a court of competent jurisdiction, such provision shall become ineffective as to all matters within the jurisdiction of that court. The court’s holding, however, shall not be treated as affecting the validity or enforceability of any other provision of these Terms and Conditions, nor as affecting the validity or enforceability of any part of these Terms and Conditions in other jurisdictions.

13.5. Waiver. Neither the failure of a Party to exercise any right, power or privilege under these Terms and Conditions, nor its delay in any such exercise, shall operate as a waiver of that right, power or privilege. No such waiver shall be binding on either Party unless it is in writing and signed by an officer of the Party against which the waiver is asserted. No such waiver on one occasion shall preclude subsequent full enforcement of a Party’s rights, powers and privileges under these Terms and Conditions or at law or in equity.

13.6 Successors and Assigns. These Terms and Conditions shall be binding on, and shall inure to the benefit of, both Parties as well as their respective successors and permitted assigns provided that successor or assignee agrees in writing to comply with all of these Terms and Conditions.

FREIGHTECH TRANSPORT, LLC

Last updated 23 February 2022