THIS BROKER/CUSTOMER AGREEMENT (“Agreement”) is made and entered into by and between the CUSTOMER (as defined below) and the BROKER, Bolt Transport Inc (“BROKER”), a Florida Corporation. The CUSTOMER and BROKER are sometimes collectively referred to as the “Parties”. The CUSTOMER and BROKER hereby agree as follows:
A. WHEREAS BROKER is a registered Property Broker by the Federal Motor Carrier Safety Administration (“FMCSA”), under MC# 1576925, or by appropriate State agencies, and as a licensed broker, arranges for freight transportation with offices located at 1907 72ND ST NW Bradenton, FL 34209; and
B. WHEREAS CUSTOMER is a Shipper, Drop Shipper, Consignee, authorized Property Broker, Co-Broker, Paying party or Freight Forwarder of freight which it wishes to have arranged for transportation through brokerage and/or logistics’ services provided by BROKER; and
C. WHEREAS CUSTOMER seeks to utilize the services of BROKER only to arrange for and facilitate the transportation of goods and freight on behalf of CUSTOMER;
D. WHEREAS THE PARTIES agree that the BROKER is acting solely in its capacity as a Freight Broker and not as a motor carrier, contract carrier or common carrier as defined under Title 49 of the United States Code and the applicable Code of Federal Regulations; and
E. WHEREAS THE PARTIES agree that the terms of these Recitals are incorporated fully into and are a material part of the “Agreement” below.
NOW THEREFORE, intending to be legally bound, BROKER and CUSTOMER agree as follows:
1. TERM. Subject to paragraph 14, the term of this Agreement shall be one (1) year, commencing on the date first mentioned above, and shall automatically renew for successive one year periods; provided, however, that either Party may terminate this Agreement on 30 day’s written notice to the other Party, with or without cause, or as otherwise provided in this Agreement.
2. SERVICE. BROKER agrees to arrange for transportation of CUSTOMER’s freight pursuant to the terms and conditions of this Agreement and in compliance in all material respects with all federal, state and local laws and regulations relating to the brokerage of the freight covered by this Agreement. BROKER’s responsibility under this Agreement shall be limited to arranging for, but not actually performing, transportation of CUSTOMER’s freight. The Parties thus agree that BROKER is at all times acting strictly, solely and only in its capacity as a freight Broker under 49 U.S.C. Section 13102(2). The PARTIES may, upon written mutual agreement, include additional or related service terms.
3. GENERAL CUSTOMER RESPONSIBILITY REGARDING SHIPMENTS: On all shipments, CUSTOMER shall be responsible to BROKER for timely and accurate delivery instructions and a description of the cargo being transported, including, but not limited to, any special handling or security requirements, dimensions, weight, temperature, cargo value, and employing reasonable security protocols to reduce the risk of cargo theft for any shipment.
4. FREIGHT CARRIAGE. BROKER warrants that, if feasible, it will enter into a bilateral written contract of carriage with each Motor Carrier (“Carrier”) utilized in the performance of this Agreement. BROKER further warrants that those contracts may include the following provisions:
A. Carrier shall maintain compliance during the term of this Agreement, with all applicable federal, state and local laws relating to the provision of its services including, but not limited to:
1. transportation of Hazardous Materials, (including the licensing and training of drivers), as defined in 49 C.F.R. § 172.800, § 173, and §397 et seq. to the extent that any shipments hereunder constitute Hazardous Materials;
2. owner/operator lease regulations;
3. loading and securement of freight regulations;
4. implementation of driver safety regulations including, but not limited to, hiring, controlled substances and hours of service regulations;
5. sanitation, temperature, and contamination requirements for transporting food, perishable, and other products; and
6. implementation of equipment safety regulations.
B. Carrier shall agree to defend, indemnify and hold BROKER and CUSTOMER harmless from all damages, claims or losses arising out of its performance of the Contract, including cargo loss and damage, theft, delay, damage to property, and personal injury or death, to the fullest extent permissible under applicable federal and state law.
C. Carrier shall agree that its liability for cargo loss or damage shall be no less than that of a Common Carrier as provided for in 49 USC 14706 (the Carmack Amendment). Exclusions in Carrier’s insurance coverage shall not exonerate Carrier from this liability. No limitation of carrier’s liability shall apply, unless BROKER first obtains the express written consent of CUSTOMER.
D. Carrier agrees to maintain at all times during the term of this Agreement insurance coverage with limits to be agreed upon with the Carrier of not less than the following:
Auto Liability – $ 1,000,000
Cargo Liability – $100,000
Worker’s Compensation – As required by law
BROKER may verify that each Carrier utilized in the performance of this Agreement has insurance coverage as defined above. BROKER may require proof of insurance and operating authority from each Carrier and provide said proof to CUSTOMER only upon CUSTOMER’s request.
E. Carrier shall agree that the provisions contained in 49 CFR 370.1 et seq. govern the processing of claims for loss, damage, injury or delay to property and the processing of salvage.
F. Carrier shall agree that at no time during the term of its contract with BROKER shall it have an “Unsatisfactory” safety rating as determined by the Federal Motor Carrier Safety Administration (FMCSA). If Carrier receives an “Unsatisfactory” safety rating, it shall immediately notify BROKER. BROKER shall not knowingly utilize any Carrier with an “Unsatisfactory” safety rating in the performance of this Agreement.
G. Carrier shall agree that the terms and conditions of its contract with BROKER shall apply on all shipments it handles for BROKER. Any terms in a tariff that are referenced in the Carrier contract inconsistent with the contract shall be subordinate to the terms of the contract.
H. Carrier shall expressly waive all rights and remedies under Title 49 U.S.C., Subtitle IV, Part B to the extent they conflict with the contract.
5. RECEIPTS AND BILLS OF LADING. The CUSTOMER agrees to use the BROKER generated Bill of Lading and adheres to the terms and conditions of the Bill of Lading. The CUSTOMER is obligated to complete all shipping documents required for transportation of the shipment. If the CUSTOMER fails to timely complete the proper shipment records and documents, the BROKER retains the optional right to complete and/or replace said documents. If a substitute Bill of Lading is required to consummate shipment delivery (for any reason), and BROKER completes the same, the terms and conditions of the completed Bill of Lading shall govern, and the BROKER shall then be totally exonerated and released from all liability in undertaking any such actions in completing the Bill of Lading. This release from BROKER liability shall include a release of liability for any alleged negligence by the BROKER.
Any and all Bills of Lading issued are deemed Non-Negotiable and shall be prepared on behalf of the CUSTOMER per the CUSTOMER’s directions and approval, and shall thus be conclusively deemed to have been prepared by the CUSTOMER. The BROKER shall have no obligation to issue any payments or honor rate quotes under the following instances: (1) Where the Bill of Lading contains unauthorized alterations or is used without authority; (2) Where the shipment is tendered, subcontracted or transferred to a carrier other than the carrier to whom the shipment was brokered by the BROKER; or (3) Where the Bill of Lading used is not authorized or issued by the BROKER.
CUSTOMER’s insertion or use of the BROKER’s name or logo on the Bill of Lading, or on any other document, shall be for CUSTOMER convenience only and shall not change BROKER’s status as a property broker. CUSTOMER agrees that BROKER is not acting or assuming any liability or responsibility as a motor carrier for any shipment. The terms and conditions of any freight documentation issued by CUSTOMER, BROKER or the Carrier selected by BROKER, shall and may not supplement, alter, or modify the terms of this Agreement.
6. PAYMENTS. BROKER shall invoice CUSTOMER for its services in accordance with the rates, charges and provisions as agreed upon herein, and in any written instruments that are mutually agreed to between the Parties. All charges are payable by CUSTOMER in US Dollars and are due and payable fifteen (15) days from the date of delivery (net/15) or within fifteen (15) days after a reasonable time for delivery has elapsed, and to make said payment without any deductions, offsets or setoffs allowed against amounts owed for other unrelated shipments. Past due invoices shall be subject to an additional charge at the rate of 1½% per month of the average outstanding balance due. All funds received by BROKER will be applied to the oldest (based on pick-up date) invoiced BOL outstanding. Overpayments do not accrue interest. In the event past due invoices are given to an attorney or collection agency, CUSTOMER agrees to pay, in addition to the principal account balance, all interest payments, collection costs and reasonable attorney’s fees incurred by the BROKER in pursuing any collection actions or efforts against the CUSTOMER.
7. CUSTOMER CREDIT APPROVAL: Payment terms and credit limits are subject to credit approval, which credit limits shall be determined at the sole and absolute discretion of BROKER. The Customer grants BROKER the right to perform any credit and/or background checks and searches as BROKER deems necessary. CUSTOMER agrees to fully cooperate with BROKER in conducing any credit or background checks. When paying by credit card or electronic transfer of funds, the CUSTOMER agrees it will be responsible for all charges due and owing (including adjustments) on account of such CUSTOMER’s shipment. The CUSTOMER thus authorizes BROKER to charge the CUSTOMER’s credit card or bank account for any such charges. Where allowed by state law, the Customer’s credit card payments are subject to a surcharge of up to 3%.
8. CALCULATION AND DETERMINATION OF TRANSPORTATION RATES/CHARGES: The CUSTOMER shall be liable for all charges payable regarding the CUSTOMER’s shipment. Such charges may include transportation, fuel and other applicable accessorial charges, any charges made by the Carrier(s) after the shipment, and all duties, customs assessments, governmental penalties, fines and taxes. BROKER reserves the right to amend or adjust charges and re-invoice the CUSTOMER in the following events: (i) if the original quoted amount was based upon incorrect information provided by the CUSTOMER; or (ii) if additional services were provided by the Carrier; or (iii) if the CUSTOMER authorized the Carrier to perform the transportation and delivery functions other than those contemplated by the Bill of Lading. Disputes regarding any invoice issued by BROKER shall be made in writing within 30 days of the invoice date, and specifically indicating the nature of the dispute. If BROKER does not receive timely written notice of the dispute, the charges will be conclusively presumed valid.
Truckload (“TL”) rates are based on Dock Door Pickup/Dock Door Delivery and Shipper Load/Consignee Unload and are mileage based. Additional fees may apply for charges including Tractor Detention, Trailer Detention and Driver Assistance. CUSTOMER must tender load to carrier at the agreed upon rate, or pay a “truck ordered, not used” penalty at cost. Air Freight rates are based on the greater of actual or dimensional weight. If an Air Freight shipment contains oversize freight, additional charges and transit delays may apply. Van Line rates are based on mileage, weight (actual or density) and commodity/product type. Flatbed rates are based on transport equipment type, mileage and weight. If a shipment includes over- dimensional freight, additional charges and transit days may apply. All displayed transit times are estimates only and do not include day of pickup. Pickup dates are not guaranteed.
9. FREIGHT CLAIMS AND LIABILITY LIMITS: BROKER is not liable for any loss, damage or non-delivery caused by: (i) the act or omission of a Carrier, the CUSTOMER or any other party claiming an interest in the shipment; or (ii) inherent defects in the nature of the shipment; or (iii) CUSTOMER violation of any provision within this Agreement, the Bill of Lading and/or the Carrier’s tariff, including by improper packing, securement or marking; or (iv) failure to observe the rules relating to shipments not acceptable for transportation; or (v) acts of God, public enemies, public authorities, acts or omissions of Customs officials, war, riots, strikes, labor disputes, shortages, weather conditions or mechanical delay, or failure of vehicles, aircraft or other equipment; or (vi) the acts or omissions of any person other than employees of BROKER. CUSTOMER acknowledges that to provide competitive rates, and as a material term to this Agreement, the Parties agree the risk of loss or damage incurred as a result of alleged BROKER liability shall be limited to the fees BROKER has earned with respect to the subject shipment. CUSTOMER specifically acknowledges that BROKER shall have no liability for negligent acts or omissions of its employees except to the extent such actions or omissions constitute gross negligence.
CUSTOMER must file claims for cargo loss or damage with the BROKER within one hundred eighty (180) days from the date of such loss, shortage or damage. For purposes of this Agreement the date of said loss shall be the delivery date or, in the event of non-delivery, the scheduled delivery date. Upon said notification to BROKER, the BROKER shall assist the CUSTOMER in filing a cargo loss claim with the Carrier. The CUSTOMER must file any viable civil action against BROKER in a Court with proper jurisdiction within two (2) years from the date the Carrier or BROKER provided the CUSTOMER with written notice that the Carrier has disallowed any part of the claim. The Carriers’ cargo liability for any one shipment shall not exceed $100,000, unless BROKER is notified by CUSTOMER in writing of the increased value prior to shipment pickup and with reasonable advance notice to allow BROKER and/or the Carrier to procure additional insurance coverage.
It is understood and agreed that the BROKER is not a Carrier and that the BROKER shall not be held liable for loss, damage or delay in the transportation of CUSTOMER’s property. If however payment of the cargo claim is made by BROKER to Customer, then CUSTOMER agrees to immediately legally assign in writing its full rights, claims and interest in the claim to the BROKER via a legally valid Assignment. On said Assignment, CUSTOMER shall also provide BROKER with all documents related to and necessary to evaluate the claim being assigned. Finally, CUSTOMER agrees that BROKER does not acknowledge legal responsibility for any cargo loss, delay or damage by said voluntary payment of any claims.
In no event shall BROKER or BROKER’s Carrier be liable to CUSTOMER for special, incidental or consequential damages that relate to loss, damage or delay to a shipment, unless CUSTOMER has informed BROKER in written or electronic form, prior to or when tendering a shipment or series of shipments to BROKER, of the potential nature, type and approximate amount of such damages, and BROKER specifically agrees in written or electronic form to accept responsibility for such damages.
The Parties shall notify each other of all known material details within thirty days of receiving notice of any claims other than cargo loss or damage claims, and shall update each other promptly thereafter as information becomes available.
10. INSURANCE. The CUSTOMER agrees that it shall look solely to its own insurance, to a Shipper’s Interest (or similar) insurance policy and/or to insurance provided by the Carrier regarding any claims arising from damage to goods in transit under this Agreement. The CUSTOMER acknowledges that an insurance claim (or the availability of insurance coverage) does not relieve it from payment or liability under the terms of this Agreement. All freight and cargo claims should be submitted immediately to BROKER for transmission to the Carrier or its insurer. BROKER will attempt to assist in the resolution of freight claims, but has no responsibility or liability therefore. Where a damage claim is submitted with Carrier on behalf of CUSTOMER, BROKER shall have a lien on any amounts recovered to the extent of open past due invoices on the CUSTOMER’s account. BROKER has optional third party all risk insurance (“Third Party Insurance”) available for purchase by the Customer. BROKER has no responsibility or liability with respect to the issuance or denial of said Third Party Insurance, or in the payment or denial of any claims thereunder.
11. SURETY BOND. BROKER shall maintain a surety bond or trust fund agreement as required by the Federal Motor Carrier Safety Administration for $25,000, plus $50,000 for a total surety of $75,000, and furnish CUSTOMER with proof upon request.
12. HAZARDOUS MATERIALS. CUSTOMER shall comply with all applicable laws and regulations relating to the transportation of hazardous materials as defined in 49 CFR § 172.800, § 173, and § 397 et seq., to the extent that any shipments constitute hazardous materials. CUSTOMER must immediately inform BROKER if any such shipments constitute hazardous materials. CUSTOMER shall defend, indemnify and hold BROKER harmless from any penalties or liability of any kind, including reasonable attorney fees, arising out of CUSTOMER’s failure to comply with applicable hazardous materials laws and regulations.
13. HOMELAND SECURITY. As applicable to each, respectively, BROKER and CUSTOMER shall comply with state and federal Homeland Security related laws and regulations.
14. DEFAULT. Both Parties will discuss any perceived deficiency in performance of this Agreement and shall promptly endeavor to resolve all disputes in good faith. However, if either Party materially fails to perform its duties under this Agreement, the party claiming default may terminate this Agreement on 10 (ten) days written notice to the other Party. In the event this Agreement is terminated, CUSTOMER shall still be totally responsible to pay BROKER for any services performed by BROKER prior to termination, as well as to pay for shipments not yet completed and/or not yet invoiced to SHIPPER.
15. INDEMNIFICATION: CUSTOMER agrees to fully defend, indemnify and hold harmless the BROKER (including its officers, employees and affiliates), from any and all damages, actions, liability, or claims against the BROKER for personal injury or death, property damage, losses, cargo losses or delays, cargo salvage, freight or other related fees, carrier payments, and/or any other losses, claims or liability caused by or arising from the CUSTOMER’s actions under this Agreement, whether said actions or omissions are negligent, intentional or otherwise. This provision includes the CUSTOMER’s obligation to indemnify the BROKER for all reasonable attorney’s fees and costs incurred by the BROKER in defending any such claims or actions arising from the CUSTOMER’s actions or omissions, whether said claim(s) or actions are in contract, statute, regulation, tort or otherwise. This provision includes indemnity to the BROKER arising from acts or omissions by the CUSTOMER’S agents or contractors. The CUSTOMER shall provide immediate written notice to the BROKER of any third-party claims or actions, or potential claims or actions, arising out of the CUSTOMER’s duties and obligations under this Agreement.
16. ASSIGNMENT/MODIFICATIONS OF AGREEMENT. Neither party may assign or transfer this Agreement, in whole or in part, without the prior written consent of the other party. No amendment or modification of the terms of this Agreement shall be binding unless in writing and signed by the Parties.
17. SEVERABILITY/SURVIVABILITY. In the event that the operation of any portion of this Agreement results in a violation of any law, or any provision is determined by a court of competent jurisdiction to be invalid or unenforceable, the Parties agree that such portion or provision shall be severable and that the remaining provisions of the Agreement shall continue in full force and effect. The representations and obligations of the Parties shall survive the termination of this Agreement for any reason.
18. INDEPENDENT CONTRACTOR. It is understood between BROKER and CUSTOMER that BROKER is not an agent for the Carrier or CUSTOMER and shall remain at all times an independent contractor. CUSTOMER does not exercise or retain any control or supervision over BROKER, its operations, employees, or Carriers. Likewise, it is understood and agreed by the Parties that the CUSTOMER is not an agent for the BROKER, and shall at all times remain an independent contractor. BROKER does not exercise or retain any control or supervision over the CUSTOMER, its operations, employees or motor carriers retained by the CUSTOMER.
19. NONWAIVER. Failure of either party to insist upon performance of any of the terms, conditions or provisions of this Agreement, or to exercise any right or privilege herein, or the waiver of any breach of any of the terms, conditions or provisions of this Agreement, shall not be construed as thereafter waiving any such terms, conditions, provisions, rights or privileges, but the same shall continue and remain in full force and effect as if no forbearance or waiver had occurred.
20. NOTICES. Unless the Parties notify each other in writing of a change of address, any and all notices required or permitted to be given under this Agreement shall be in writing by the Parties’ authorized representatives
21. FORCE MAJEURE. Neither Party shall be liable to the other for failure to perform any of its obligations under this Agreement during any time in which such performance is prevented by fire, flood, or another natural disaster, war, embargo, riot, civil disobedience, or the intervention of any government authority, or any other cause outside of the reasonable control of the CUSTOMER or BROKER, provided that the Party so prevented uses its best efforts to perform under this Agreement and provided further, that such Party provide reasonable notice to the other Party of such inability to perform.
22. CHOICE OF LAW AND VENUE. This Agreement shall be deemed to have been negotiated and executed under Florida law in the City of Bradenton, Manatee County, the State of Florida. The CUSTOMER specifically agrees and consents to personal jurisdiction and venue in the State of Florida, County of Manatee. Accordingly, and except to the extent pre-empted by Federal Law, the laws of the State of Florida shall govern any dispute, arbitration, claim or lawsuit arising from or involving the construction, interpretation or enforcement of this Agreement
Both Parties accordingly agree that any action, litigation or dispute arising from this Agreement (whether in court, by arbitration or otherwise) shall be brought in either (and only): (1) The Manatee County Circuit Court in the State of Florida; or (2) In the Federal District Court for the Middle District of Florida, Tampa, Division. Both Parties agree to personal jurisdiction in said Florida courts/venues and thus shall waive any right to contest personal jurisdiction therein. The Parties furthermore agree that the prevailing party in any said dispute, action, claim, arbitration or litigation arising from this Agreement shall be entitled to collect from the non-prevailing party all reasonable attorneys’ fees and costs incurred by the prevailing party in said dispute, claim, litigation or action, including all attorney’s fees and costs incurred on appeal.
23. CONFIDENTIALITY. BROKER shall not utilize CUSTOMER’s name or identity in any advertising or promotional communications without written confirmation of CUSTOMER’s consent. The Parties shall not publish, use or disclose the contents or existence of this Agreement except as necessary to conduct their operations pursuant to this Agreement. Likewise, CUSTOMER shall not utilize BROKER’S name or identity in any advertising or promotional communications without written confirmation of the BROKER’S consent.
24. ENTIRE AGREEMENT AND AUTHORITY. 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. By agreeing to the terms and conditions in the applicable Bill of Lading referencing the link to this Agreement, the CUSTOMER has agreed upon and executed this Agreement.