SHIPPER-BROKER TERMS AND CONDITIONS
Version: SBTC.04.29.2026.v2
Posted and Effective as of: April 30, 2026
Background
In freight transportation, shippers decide what freight to ship where. Carriers physically transport that freight.
Shippers can choose to engage with carriers directly:
Alternatively, shippers can choose to engage with carriers indirectly through third-party intermediaries like property brokers. In such cases, the actual physical transportation remains exclusively between the shipper and carrier, but the third-party intermediary arranges for a connection between them through independent contracts with each:
Property brokers, as administrative third-party intermediaries with no “boots on the ground,” do not themselves have trucks or drivers, touch freight, operate equipment, or perform any other aspect of the physical transportation. Property brokers are licensed only to arrange for, but not actually provide, the transportation of property.
As such, brokered arrangements involve at least three independent parties, with each performing distinct and independent roles:
(i)
a shipper (deciding what ships where, physically packaging and marking it, and providing shipment specifications);
(ii)
a carrier (maintaining exclusive physical possession of the freight, operating the equipment, and physically transporting the shipment); and
(iii)
a broker (an intermediary with no physical presence, arranging shipments at a distance through independent contracting relations with various shippers and carriers).
Each party performs its own role. No party supervises, controls, or directs the manner or means of how the other parties perform.
These Shipper-Broker Terms and Conditions (these “Terms”) pertain to property brokerage. Specifically, these Terms serve as the shipper-broker contract between a shipper or other Customer (defined below), on the one hand, and the property broker ATS Logistics Services, Inc. (“Broker”), on the other. These Terms apply to all services provided by Broker to any Customer.
The parties to these Terms understand and intend that Broker is and operates as a property broker only (see above). Broker is not a carrier. Any shipper or other Customer seeking to engage a carrier directly (instead of indirectly through property brokerage) must not engage Broker for any carrier services but should instead directly engage with a carrier entity that is licensed to provide carrier services. By engaging Broker, Customer agrees that it is purchasing property brokerage services only, all as provided in accordance with these Terms.
Terms
These Terms, together with the terms and conditions of any applicable Quote (defined below) or Service Agreement (defined below), apply to all services provided by Broker in connection with Broker’s arranging for the transportation (such property brokerage services, the “Services”) of cargo or goods or other property (including packaging, pallets, packing materials, containers, and any related equipment, “Goods”) by Carriers (defined below) or Ancillary Providers (defined below) for, on behalf of, or at the request of any Customer (defined below).
Broker publicizes these Terms on its public website at https://www.atsinc.com/shipper-broker-terms-and-conditions and references these Terms in credit applications, Quotes, Service Agreements, email disclosures, and other documents where applicable. These Terms, together with any applicable Quotes or Service Agreements, govern Broker’s Services. Without limiting the foregoing, any email from an “atsinc.com” or “ats-inc.com” email domain where the sender’s signature block lists the entity “ATS Logistics Services, Inc.” is an email from Broker that, if offering any services, is offering only freight brokerage Services subject to these Terms. By engaging Broker, each person or entity at whose request, for whose benefit, or on whose behalf Broker provides Services, including any shipper, consignor, consignee, beneficial cargo owner, third party logistics provider, or agent acting on behalf of such person or entity (each, a “Customer”), expressly accepts these Terms in effect as of the date of such engagement, and warrants that acceptance of these Terms has been authorized by a representative of Customer as of such date. The Customer engaging Broker for Services is responsible for ensuring that all other Customers respecting such Services have been notified of and have consented to the application of these Terms.
Broker may update these Terms from time to time by posting revised terms on its public website at https://www.atsinc.com/shipper-broker-terms-and-conditions. Subject to Sections 1 and 2 of these Terms, the version of these Terms as posted at the time Broker is engaged for any Services will apply to those Services for their duration, regardless of any subsequent updates to these Terms. For the avoidance of doubt, no update to these Terms shall retroactively alter the terms governing Services for which Broker has already been engaged. Customer’s engagement of Broker for any new Services on or after Broker’s posting of revised terms constitutes Customer’s acceptance of the revised Terms then in effect with respect to such new Services.
1.
APPLICATION OF THESE TERMS
These Terms apply to all of Broker’s Services, subject to modification as set forth herein.
1.1.
Quotes. Broker may from time to time provide Customer with a rate quote or service proposal for specific Services (a “Quote”). A Quote applies only to the specific Services described therein and may specify only the transaction-specific business and operational particulars of those specific Services (such as quoted rates or charges, shipment volumes, shipment characteristics, origins, destinations, lanes, equipment requirements, service levels, pickup dates, delivery dates, transit schedules, payment timing, and shipment-specific assumptions or accessorials), all as applicable to the specific transaction or series of transactions being quoted. Except for such transaction-specific particulars, a Quote does not amend, supersede, waive, or vary any non-transactional or generally applicable provision of these Terms, including without limitation Section 2 of these Terms or any provision in these Terms relating to liability, claims, indemnity, insurance, dispute resolution, governing law, confidentiality, term and termination, or other legal rights and obligations of the parties. Any modification to these Terms other than the transaction-specific particulars described in the applicable Quote, if any, must be set forth in a Service Agreement duly executed by authorized representatives of both parties in a manner consistent with Section 1.2 of these Terms. Each Quote shall be deemed to incorporate the version of these Terms in effect at the time the Quote is provided. If Broker updates these Terms after providing a Quote but before Customer accepts such Quote, the version of these Terms incorporated into the Quote (and not the updated Terms) shall govern those Services.
1.2.
Service Agreements. Broker and Customer may also enter into a formally negotiated written agreement, signed by an authorized representative of each party, that establishes additional or amended terms applicable to some or all Services between the parties on a continuing basis (a “Service Agreement”). Only Broker employees with the title of Director or higher are authorized to execute a Service Agreement or otherwise modify, supersede, or waive these Terms on a continuing basis or with respect to any subject other than the transaction-specific business and operational particulars reflected in a Quote; provided, however, that Directors do not have authority to modify, supersede, or waive the provisions of Section 2 of these Terms through any Service Agreement (which Section 2 is subject to the non-modification provisions set forth therein). No employee, agent, or representative of Broker other than an employee with the title of Director or higher has actual or apparent authority to modify, amend, supplement, or waive any provision of these Terms, whether orally or in writing, and Customer shall not rely upon any statement, representation, or commitment by any such person as creating any obligation of Broker not expressly set forth in these Terms or a Service Agreement. A Service Agreement shall be deemed to incorporate the version of these Terms in effect at the time of its execution and will govern the Services within its stated scope for the duration specified therein. A Service Agreement’s express modifications of these Terms shall continue in effect as written regardless of any update to these Terms. If Broker updates these Terms during the term of a Service Agreement, the version of these Terms incorporated at the execution of the Service Agreement (and not the updated Terms) shall continue to govern all matters within the scope of the Service Agreement for the remainder of the then-current term of such Service Agreement. Upon renewal of a Service Agreement, the renewed Service Agreement shall be deemed to incorporate the current updated version of these Terms in effect at the time of renewal unless such Service Agreement specifically states that the version of these Terms incorporated at the original execution of the Service Agreement (and not the updated Terms) is to continue to govern each such renewal.
1.3.
Entire Agreement. These Terms, together with any applicable Quote or Service Agreement, constitute the complete and exclusive agreement between Broker and Customer with respect to the Services and supersede all prior or contemporaneous proposals, negotiations, representations, understandings, and agreements, whether written or oral, relating to the Services. Neither party is relying on any such superseded matters in their decision to enter into these Terms. As between Broker and Customer, no other terms or conditions contained in or referenced by any purchase order, tender, request for proposal, shipping instruction, transportation management system, web portal, bill of lading, delivery receipt, or other document issued or maintained by Customer or any third party shall supplement, modify, supersede, or otherwise alter these Terms, regardless of whether Broker receives, acknowledges, signs, arranges shipments under, performs Services referenced in, or fails to specifically object to any such document. Broker rejects any additional or inconsistent terms and conditions offered by Customer and Broker’s performance of Services following receipt of any such document shall not constitute acceptance of any terms contained therein that are additional to or different from these Terms. The parties intend that any acceptance, acknowledgment, or click-through by Broker or its personnel in any Customer-operated web portal, transportation management system, or electronic platform shall be for the sole purpose of facilitating the operational exchange of information and shall not constitute agreement to any terms displayed, referenced, or linked in such portal, system, or platform. Any terms in any bill of lading, Carrier tariff, delivery receipt, or other shipping document issued by any Carrier, whether or not such document bears Broker’s name, shall govern only the relationship between Customer and the issuing Carrier and shall not supplement, modify, or alter these Terms or any obligation of Broker to Customer. No course of dealing, course of performance, or usage of trade between the parties shall supplement, modify, waive, explain, alter, or override these Terms. These Terms may be modified only as expressly provided in this Section: by a Quote with respect to the transaction-specific business and operational particulars of the specific Services covered by that Quote, or by a Service Agreement executed in accordance with the requirements set forth herein.
1.4.
Order of Precedence. Subject always to Section 2 of these Terms, in the event of a conflict between any of these Terms, a Service Agreement, and a Quote, the following order of priority will apply with respect to the specific Services at issue: (1) Section 2 of these Terms; (2) the applicable Quote, but solely as to the transaction-specific business and operational particulars that these Terms authorize a Quote to address for the specific Services covered by that Quote (if any); (3) the applicable Service Agreement (if any); and (4) these Terms. Silence in a Quote or Service Agreement shall not be construed to amend, waive, supersede, modify, or disclaim these Terms. If an applicable Quote or applicable Service Agreement is silent on any matter, or does not expressly amend, modify, supersede, waive, or disclaim the applicable provision of these Terms, then these Terms shall govern such matter.
2.
BROKERAGE SERVICES ONLY
Federal law distinguishes between a property broker, which arranges transportation, and a carrier, which performs transportation. The FMCSA licenses and regulates brokers and carriers separately, with different authority requirements, different bonding obligations, and different operational responsibilities, in each case commensurate with the different operational roles played by each. Broker’s license is limited to property brokerage only. Broker is not licensed to perform or control physical transportation. Broker cannot and will not agree to operate outside of its license.
The parties agree to reform any contrary terms, provisions, language, documents, and other items that may be inconsistent with the foregoing, if any, to be consistent with this Section 2, all in the manner set forth herein. This Section 2 confirms the parties’ understanding that Broker acts solely as a property broker (consistent with its federal licensure) and not in any other role (such as the role of a Carrier). This Section 2 governs and supersedes any attempt to impose upon Broker any term, condition, provision, description, obligation, or status that is inconsistent with Broker’s actual operations or federal licensure as a property broker only. By tendering any Goods in connection with Broker’s Services, by accepting the benefits of Broker’s Services, or by paying any invoice issued by Broker, Customer conclusively admits, stipulates, and agrees that the services requested and rendered were strictly property brokerage services under 49 U.S.C. § 13102(2) and not Carrier services.
For the avoidance of doubt, this Section 2 does not negate purely commercial obligations expressly assumed by Broker in an executed Service Agreement to the extent such obligations operate strictly as contractual risk allocations or administrative duties in a manner fully consistent with property brokerage. However, if any such commercial obligation would operate to impose upon Broker carrier operating authority, carrier status, operational supervision or control over transportation, an obligation to transport property, or any other status inconsistent with Broker’s status as a property broker only, such obligation shall be void to the extent of such inconsistency and shall be superseded and reformed in accordance with this Section 2.
2.1.
Property Broker Only. Broker is a licensed property broker as defined in 49 U.S.C. § 13102(2) and 49 C.F.R. § 371.2(a). Broker holds property broker authority from the FMCSA under 49 U.S.C. § 13904 as reflected in FMCSA Docket No. MC-186013. Broker’s Services are limited to arranging for, and never itself providing, the transportation of property with licensed Carriers. Broker does not operate trucks or other transportation equipment and Broker does not employ, supervise, hire, fire, direct, pay, or penalize drivers or any other “boots on ground” transportation personnel in any way. Broker is not itself and does not undertake to act as a motor carrier, common carrier, contract carrier, water carrier, rail carrier, ocean carrier, air carrier, non-vessel operating common carrier, indirect air carrier, freight forwarder, or other person or entity assuming operational responsibility for the transportation of property (each, a “Carrier”). Broker does not hold any Carrier operating authority; is not registered as a Carrier with any agency; is not authorized to transport property; does not undertake, accept, or legally bind itself to transport property; and does not accept operational responsibility for the physical custody, possession, handling, pickup, transit, delivery, loading, unloading, securement, storage, temperature control, or other physical handling of property. Broker performs all Services pursuant to its property broker authority only. Broker only arranges for transportation through independent non-agent contracts with third-party Carriers or other Ancillary Providers acting under their own operating authorities (as applicable to their respective roles).
2.2.
Independence. Each Carrier and Ancillary Provider engaged by Broker is, and shall remain, a non-agent independent contractor of Broker. Each such Carrier and Ancillary Provider has and shall maintain sole and exclusive control over, and responsibility for, the manner, means, and details of its performance, including, without limitation: the selection, supervision, licensing, qualification, routing, disciplining, and management of any drivers, employees, personnel and equipment; and the full independent discretion over all operational decisions, including, without limitation, dispatch, hours-of-service compliance, safety compliance, and the discretion to stop a load or refuse transit of any shipment where the shipment risks any violation of any legal or safety rule. Carriers and Ancillary Providers are independent contractors only and are not subcontractors, representatives, or agents of Broker. No Carrier or Ancillary Provider has authority to act on Broker’s behalf or bind Broker to any terms, debt, liability, obligation, commitment, or waiver. Neither Broker nor Customer shall have, or be deemed to have, the right, duty, or ability to supervise, control, or direct the manner or means of any Carrier’s or Ancillary Provider’s performance. In connection with arranging transportation requested by Customer and communicating Customer’s shipment particulars, Broker may specify, and Carriers or Ancillary Providers may agree to provide, commercial transportation results, including origin, destination, timing expectations, equipment type, and other shipment particulars, together with lawful operation, required insurance, and transportation performed with reasonable dispatch. All such particulars provided to Carriers or Ancillary Providers may be descriptive of the shipment and desired Customer results but are not prescriptive of the manner or means by which any Carrier or Ancillary Provider achieves those results. All Carrier and Ancillary Provider rates will be based on achieving results and not on hours of work or time expended. Customer will ensure that any shipment particulars that it requests for Broker to provide to Carriers or Ancillary Providers shall be in a form that is consistent with the terms of this Section 2.2.
2.3.
Immutability. Broker’s status as a property broker is a regulatory fact established by federal licensure, not a contractual preference. No private agreement can confer carrier operating authority on Broker or change the status reflected in FMCSA’s public licensing records. Broker holds authority from the FMCSA solely as a property broker under 49 U.S.C. § 13904 and does not hold motor carrier operating authority under 49 U.S.C. § 13902, freight-forwarder authority under 49 U.S.C. § 13903, or any other FMCSA-issued operating authority other than property broker authority. Broker’s status and operating authority is a matter of federal agency licensure, not a matter of private agreement, label, description, course of dealing, or other communication. No Quote, Service Agreement, bill of lading, shipping document, tender, portal entry, invoice, communication, or other instrument is capable of conferring motor-carrier or other Carrier operating authority upon Broker, or of changing Broker’s regulatory status reflected in FMCSA’s licensing records, regardless of the author of such document or communication or the seniority or title of any signatory. Any contrary characterization of Broker in any document or communication is inaccurate as to Broker’s legal and operational status, is ineffective to that extent, is contrary to the parties’ express understanding and agreement, and shall not be construed as meaning that Broker accepted, undertook, assumed, or agreed to perform as a Carrier, but instead shall be interpreted, reformed, and construed solely in a manner consistent with Section 2.5 of these Terms.
2.4.
No Waiver. This Section 2 is not subject to modification, supersession, or waiver by inconsistent wording, labels, conduct, or course of dealing. If Broker is identified as a Carrier on any contract, bill of lading, shipping document, portal, tender, label, receipt, or other document or communication, such designation shall be understood as being solely for convenience or shall be deemed a mistake and shall not alter Broker’s status as a property broker. No course of dealing, course of performance, or failure or delay by Broker in asserting its status as a property broker shall be deemed to create, confer, imply, or deem Broker to have motor carrier or other regulated Carrier status, authority, or obligations, or otherwise constitute or be construed as a waiver of this Section 2, an admission that Broker is or was acting as a Carrier, an acceptance or holding out of Carrier operating obligations by Broker, or an estoppel against Broker’s assertion of its broker-only status.
2.5.
Savings Construction. The provisions of this Section 2.5 establish interpretive rules for resolving inconsistencies between these Terms and any other agreement, document, or communication that may apply to the relationship between Customer and Broker. These rules apply to three categories of inconsistency that commonly arise in freight transportation arrangements: (a) brokerage terms that seek to impose carrier-type obligations on Broker (Section 2.5.1); (b) carrier agreements that do not contemplate a property brokerage relationship (Section 2.5.2); and (c) general vendor or procurement terms that are not specific to transportation (Section 2.5.3). For the avoidance of doubt, any agreement, contract, or document between the parties that was drafted, negotiated, or structured as a brokerage agreement shall be governed by Section 2.5.1 and not by Section 2.5.2, with Section 2.5.2 intended to address the case of form carrier agreements that do not expressly contemplate an engagement for brokerage services. In each case, the interpretive rules set forth below are intended to preserve, to the extent commercially reasonable, the general commercial intent of the parties while ensuring that no agreement, document, or communication functions to alter Broker’s status or role as a property broker only. Sections 2.5.4 through 2.5.6 set forth additional interpretive rules of general applicability.
2.5.1.
Brokerage Agreements Imposing Carrier-Type Obligations. Any provision or language in these Terms, any Quote, any Service Agreement, or any other document or communication between the parties respecting acts or omissions that may be performed by a property broker in its capacity as a property broker only shall be construed as applying to Broker only in such capacity, whether or not such acts or omissions could also be performed by a Carrier. For example, commercial and administrative obligations expressly assumed by Broker in an executed Service Agreement and commercial and administrative decisions made by Broker (e.g., as may relate to cargo-loss risk allocations, claims administration, indemnity agreements, arranging for cargo recovery, arranging for substituted services after service failures, contracting with third-parties for ancillary services, procurement of insurance, and similar items) shall only operate and be construed as contractual risk allocations or administrative duties in a manner fully consistent with property brokerage operations. Any tracking, monitoring, or reporting that Broker may be asked to provide to Customers; any preferences or service-level expectations that Broker may be asked to communicate by Customer; and any vetting, qualification, or compliance verification that Broker may be requested to perform; shall in each case only be construed in a manner consistent with and incident to Broker’s role as a property broker only and shall not impose any right or duty to exercise any operational supervision or control over the manner or means of any Carrier’s performance. Any provision or language in these Terms, any Quote, any Service Agreement, or any other document or communication between the parties that describes, attributes to, or could be read to impose on Broker any act, function, service, or responsibility that is in the nature of services that can only be performed by a Carrier (and not by a property broker in its capacity as a property broker only), or that could be construed as indicating that Broker’s relationship with any Carrier is anything other than that of a non-agent independent contracting relationship, shall be understood as being for drafting convenience only and shall be interpreted, reformed, and construed solely to mean that Broker will, as applicable and consistent with its role as a freight broker only: (i) attempt, where commercially feasible, to require by contract the material substance of such carrier-type obligation of the applicable Carrier, provided that Broker’s flow-down obligations hereunder shall not exceed the duties imposed on Carriers within Broker’s standard broker-carrier agreement then in effect; (ii) communicate Customer’s preferences and shipping particulars to the applicable Carrier; and/or (iii) take commercially reasonable steps to verify the Carrier’s operating authority and provision of certificates of insurance; each as the case may be, and all in a manner consistent with Section 4 of these Terms.
2.5.2.
Form Carrier Agreements Presented to Broker. Certain Customers, for their administrative convenience, require the use of only form carrier contracts in all relationships involving transportation, even where such Customers specifically intend to engage property brokers in their capacity as property brokers only. If Customer presents to Broker, or requests that Broker execute, any form agreement, contract, tender, appendix, addenda, or other document that was not drafted or negotiated as brokerage terms and that, by its structure, form, and terms taken as a whole, is in the nature of a shipper-carrier agreement or broker-carrier agreement or any other type of agreement that presupposes the signing counterparty can or will perform physical transportation, operate equipment, employ drivers, or otherwise act in a Carrier capacity, then the use of such form shall be understood as being for drafting convenience only and shall be interpreted, reformed, and construed solely to mean that Broker will, as applicable and consistent with its role as a freight broker only, attempt, where commercially feasible, to require by contract the material substance of such form terms of the applicable Carrier, provided that Broker’s flow-down obligations hereunder shall be strictly capped by and shall not exceed the duties imposed on Carriers within Broker’s standard broker-carrier agreement then in effect. The substantive provisions of such agreement, contract, tender, or other document, including without limitation any indemnity, liability, and insurance provisions, shall be construed solely as items for Broker to present to the applicable Carriers and shall not be applicable to Broker itself (instead, these Terms shall apply as the operative terms applicable to Broker), excepting only the purely transactional provisions of such items addressing payment, invoicing, credit, billing, and similar cashflow matters, which shall be construed as operating directly between Customer and Broker to the extent such construction may be done in a manner consistent with property brokerage only. Notwithstanding the foregoing, any structural, procedural, or dispute resolution provisions contained within such presented documents, including, but not limited to, terms governing choice of law, venue, jurisdiction, mandatory arbitration, or prevailing party attorney’s fees, are explicitly rejected, deemed void ab initio as applied to Broker, and shall be completely superseded by the applicable provisions of these Terms. For the avoidance of doubt, such agreement, contract, tender, or other document shall be deemed to authorize Broker to broker pursuant to Broker’s operating authority in order to arrange for transportation with Carriers, and such brokering shall not be deemed to be a breach of any confidentiality, assignment, delegation, subcontracting, “double-brokering” prohibitions, or other provisions in such agreement, contract, tender, or other document that might otherwise apply to prohibit or discourage the provision of freight brokerage services, regardless of any contrary terms therein (which terms would be intended to apply to the downstream Carrier only, not to Broker as a property broker). All other provisions of these Terms, including this Section 2, shall continue to govern as between Customer and Broker notwithstanding any inconsistent provision in such agreement.
2.5.3.
Form General Vendor or Procurement Terms. Certain Customers, for their administrative convenience, require the use of only form general vendor terms for all service engagements. If Customer presents to Broker, or requests that Broker execute or acknowledge, any agreement, contract, purchase order, vendor code of conduct, or other document of general applicability that is not specific to freight transportation or property brokerage services, including any standard vendor terms, procurement terms, or onboarding documents used by Customer for vendors generally, such agreement shall apply between Customer and Broker only to the extent its provisions are relevant to and consistent with the property brokerage services provided by Broker under these Terms. Such agreement, contract, purchase order, vendor code of conduct, or other document of general applicability shall be deemed to authorize Broker to broker pursuant to Broker’s operating authority. Any provision of such agreement that addresses matters outside the scope of property brokerage services, or that imposes obligations inapplicable or irrelevant to property brokerage operations (including without limitation IP terms, terms pertaining to the sale of goods, manufacturing terms, warranty terms, “boots on ground” terms of any kind, subcontractor terms, terms involving physical operations of any kind, rental terms, IT terms, and the like) shall be deemed inapplicable and of no force or effect as between Customer and Broker. In the event of any conflict between any such general vendor or procurement terms and these Terms, these Terms shall govern.
For the avoidance of doubt, no matter any other provision or language in these Terms, any Quote, any Service Agreement, or any other document or communication between the parties:
2.5.4.
No Control or Agency. No provisions or language shall be construed to impose on Broker or Customer any right or duty to guarantee performance by any Carrier or Ancillary Provider or to supervise, control, or direct the manner or means of any Carrier’s or Ancillary Provider’s performance. In no case shall any such language be construed in a manner that creates any agency, employment, partnership, joint venture, subcontracting, principal-agent, employer-employee, representative, supervisory, or other similar status, relationship, or obligation between Broker or Customer and any Carrier or Ancillary Provider or any of their personnel. No provision of any Quote, Service Agreement, or other document shall be construed to designate, establish, or imply that Broker is a Carrier or that Broker assumes the duties or obligations of a Carrier. Broker does not assume any operational responsibility whatsoever for the physical transportation, pickup, or delivery of property or the acts or omissions of Carriers, Ancillary Providers, drivers, or equipment in connection therewith.
2.5.5.
Only Brokerage Terms Survive. Any provisions or language that cannot be applied to Broker in a manner consistent with the terms of this Section 2.5 shall be deemed void and without effect and instead shall be understood as an obligation for the parties to negotiate or otherwise act in good faith, in their respective capacities, to replace the effect of such provision or language, where commercially feasible, with commercially reasonable alternatives that are consistent with Broker’s status as a property broker only that engages in purely non-agent independent contractor relationships with Carriers and Ancillary Providers and maintains no supervision or control over physical operations.
2.5.6.
Non-Binding Colloquial and Informal Language. The parties acknowledge that participants in the freight transportation industry, including employees and representatives Customer, may on occasion use imprecise general terms such as “carrier”, “trucking company”, “transportation provider”, “haul”, “ship”, “move”, “deliver”, “subcontract”, “subcontractors”, “partners”, “partnership”, and similar language in informal, colloquial communications meant in a generalized sense without intending to describe the speaker’s or the recipient’s actual regulatory status or legal role. The parties agree and intend that any such use of any such terms in any communications, solicitations, emails, telephone calls, text messages, chats, vendor intake forms, marketing materials, web portals, or other operational or business-development contexts by either party or its personnel shall be interpreted as colloquial usage employed for shorthand or convenience only and not as evidence of either party’s intent to establish, accept, or acknowledge anything other than independent contractor arrangements for property brokerage services. The parties intend and agree that no informal or colloquial use of such terminology by Broker or its personnel shall be deemed an assertion or representation that Broker holds Carrier operating authority or directly or indirectly performs, supervises, or controls Carrier operations, and that no informal or colloquial use of such terminology by Customer or its personnel shall be deemed as an assertion or representation that Customer understands Broker to be a Carrier or that Customer wishes to engage Broker as a Carrier. The parties formally agree, without exception, that in the actual legal and regulatory sense, Customer engages Broker as a property broker only, notwithstanding any use of imprecise or generalized terms by any individual personnel employed by either party or within any standard forms, fields, applications, or templates used generally by either party.
2.6.
Precedence. This Section 2 shall supersede and prevail over any conflicting or inconsistent provision in these Terms, any Quote, any Service Agreement, and any other document or communication between the parties, regardless of any order of priority set forth elsewhere in any other document. Any provision in any document that purports to impose upon Broker any duty, obligation, liability, or responsibility that presupposes, implies, or is characteristic of carrier status, including without limitation any duty relating to the safe transportation, physical handling, custody, possession, pickup, or delivery of property, or any warranty regarding the condition of property upon delivery, shall be void and of no contractual force or effect to the extent of such inconsistency, and shall be interpreted, reformed, and construed as set forth in Section 2.5 to be consistent with Broker’s role as a property broker arranging for transportation by independent third-party Carriers or Ancillary Providers. All other provisions of these Terms, and all provisions of any Quote or Service Agreement, shall be interpreted and applied consistently with this Section 2. Broker expressly rejects all offers and terms that are not able to be interpreted and applied consistently with this Section 2. To the extent any provision in these Terms, any Quote, any Service Agreement, or any other document or communication conflicts with, is inconsistent with, departs from, or could reasonably be construed to limit, dilute, expand beyond, or otherwise impair the meaning, application, or effect of this Section 2, this Section 2 shall govern and control.
2.7.
Representations. Broker acknowledges, represents, warrants, and agrees that Broker holds and will maintain valid property broker operating authority from the FMCSA and Broker will maintain at all times the surety bond required by 49 U.S.C. § 13906 throughout the term of any engagement with Customer. Customer acknowledges, represents, warrants, and agrees that: (i) Customer has had the opportunity to verify Broker’s regulatory status through the FMCSA’s public licensing records; (ii) Customer understands that Broker does not hold Carrier operating authority; does not operate, supervise, manage, control, or direct trucks or other transportation equipment; does not hire, fire, employ, discipline, supervise, manage, control, or direct drivers; and does not undertake the physical transportation of property; (iii) Customer is engaging Broker as a property broker only; (iv) Customer is not relying on any representation, statement, conduct, document, or designation suggesting that Broker is a Carrier or that Broker assumes Carrier obligations (and Customer covenants that it will not hereafter assert any such reliance); (v) Customer shall not assert, in any proceeding or otherwise, that Customer relied on Broker being a Carrier or on Broker assuming Carrier-type obligations for any reason; and (vi) Customer understands that the foregoing is a material inducement to Broker’s provision of Services.
3.1.
Bills of Lading. Customer acknowledges that the contract of carriage or bailment evidenced by a bill of lading, rail waybill, warehouse receipt, or similar document involving a Carrier or Ancillary Provider is between Customer and the actual Carrier or Ancillary Provider. Customer acknowledges that Broker is not a party to the contract of carriage or other relationship evidenced by any such document except solely in its capacity as property broker. Customer is responsible for establishing, reviewing, and understanding the terms governing the Carrier’s or Ancillary Provider’s liability for loss, damage, or delay, whether such terms are set forth in a bill of lading, waybill, receipt, tariff, or applicable law. Any terms between Customer and a Carrier or Ancillary Provider shall not modify, supersede, or alter these Terms as between Customer and Broker. Broker does not warrant, represent, or guarantee the terms of any Carrier’s or Ancillary Provider’s tariff, contract of carriage, or liability limitations.
3.2.
Documentation Accuracy. Customer shall accurately identify Broker as being only a property broker in all communications with third parties in which Broker’s role is described or referenced and shall promptly correct any inaccuracy. Without limiting the foregoing, Customer shall not identify Broker as “carrier”, “motor carrier”, “hauler”, “trucking company”, “transportation provider”, or any similar designation in any communication to any third party, including in any document, email, portal entry, tender, load board posting, or oral communication. Customer shall ensure that all bills of lading, shipping documents, and other transportation documentation prepared or entered into by or on behalf of Customer correctly identify the applicable Carrier (and not Broker) as the carrier responsible for transportation. Customer shall not represent, state, or imply to any third party, including without limitation any other Customer, beneficial cargo owner, government agency, insurer, or claimant, that Broker is a Carrier, that Broker is itself providing the physical transportation of property, that Broker is responsible for the physical transportation or delivery of property, or that Broker bears any obligation or liability characteristic of a Carrier. If Broker is to be referenced on any bill of lading, Broker shall be listed only in the “third party bill to” field or equivalent, and shall not be listed in any field designated for the carrier, shipper, consignor, or consignee. If Customer prepares or causes to be prepared any document that identifies Broker as a Carrier or lists Broker in any field inconsistent with the foregoing, Customer shall promptly correct such document and shall notify Broker of the error.
3.3.
Effect of Documents. Any bill of lading, shipping instruction, delivery receipt, manifest, rate confirmation, load confirmation, tender, booking communication, label, portal entry, transportation management system entry, proof of delivery, or other shipping or operational document or communication used in connection with any Services is, as between Customer and Broker, for administrative, evidentiary, or operational convenience only and shall not supplement, modify, supersede, or alter these Terms. Without limiting the foregoing, if Broker is identified, described, listed, coded, or referenced in any such document or communication as a “carrier,” “motor carrier,” “transportation provider,” “freight forwarder,” “servicing carrier,” or similar term, or if Broker’s name appears in any carrier-designated field or location in any such document or communication, such designation shall be deemed a scrivener’s error, and in no event shall it have any legal effect or be construed to: (i) change Broker’s status as a property broker only; (ii) create, evidence, or imply that Broker accepted or undertook responsibility to transport the Goods; (iii) impose on Broker any duty, liability, or obligation of a Carrier; or (iv) amend, waive, supersede, impair, or otherwise affect Section 2 of these Terms. If any such document or communication includes Broker’s name without an express designation of Broker’s role as a property broker only, such inclusion shall nonetheless be deemed a reference to Broker solely in its capacity as property broker and shall not create any inference that Broker was acting in any other capacity.
3.4.
Compliance Warranty. Customer acknowledges that the accurate identification of the Carrier (and not Broker) as the “carrier” on shipping documents is material to Broker’s regulatory compliance under federal transportation law and is a material inducement to Broker’s provision of Services. Customer agrees to strictly comply with the terms of this Section 3. Customer shall defend, indemnify, and hold harmless Broker from and against any and all claims, actions, losses, liabilities, damages, costs, and expenses (including reasonable attorneys’ fees and costs of defense) arising from or related to: (a) any third party’s assertion that Broker is a Carrier or that Broker bears Carrier obligations, to the extent such assertion is based in whole or in part on any representation, statement, communication, or document by or on behalf of Customer; (b) Customer’s identification of Broker as a Carrier on any bill of lading, shipping document, or other document or communication, or Customer’s listing of Broker in any field on a bill of lading or other document other than the “third party bill to” field or equivalent; or (c) Customer’s failure to accurately identify Broker’s role as a property broker to any third party. This indemnification and defense obligation shall survive termination of these Terms and any Service Agreement.
4.1.
Nature of Brokerage Services. Customer understands that Broker has no equipment or drivers and that Broker only arranges, but does not actually provide, for the transportation of Goods by Carriers. If Broker agrees to provide Services to Customer, Broker’s Services are limited to acting in the capacity of a property broker to arrange, or attempt to arrange, for transportation of Goods by independent third-party Carriers. Broker’s role is administrative, informational, and contractual only. Broker does not provide transportation and does not assume any responsibility for the physical transportation of Goods. Any dates, times, appointments, service levels, transit expectations, delivery windows, special handling requests, temperature instructions, or other shipment particulars communicated by Broker are expressions of Customer’s desired commercial outcomes only and are not guarantees by Broker, nor promises of transportation performance by Broker, nor instructions by Broker as to the manner or means by which any Carrier is to perform to achieve those outcomes. No act, service, communication, accommodation, courtesy, business practice, or course of dealing by Broker shall expand Broker’s role beyond that of a property broker arranging transportation by independent third-party Carriers nor create any agency, employment, partnership, joint venture, subcontracting, principal-agent, employer-employee, representative, supervisory, or other similar status, relationship, or obligation.
4.2.
Carrier Arrangements. Broker may receive from Customer shipment information, shipment particulars, and written requests and may communicate some or all of the same to one or more Carriers for the Carriers’ consideration. In determining whether to arrange for a shipment with a Carrier, Broker may apply carrier-onboarding, eligibility, verification, fraud-prevention, contracting, insurance, operating-authority, and other commercial criteria in Broker’s business judgment. Any such activities may be proprietary and dynamic; will be performed solely incident to Broker’s brokerage function and related commercial, contractual, and internal administrative purposes; and shall not be construed as a representation, warranty, or guarantee. Broker does not undertake any duty to act as a guarantor of any Carrier’s safety or operational performance, makes no warranties or representations as to the manner or terms of a Carrier’s services, and does not guarantee that any Carrier satisfies any specific customer requirement, obligation, or standard. Customer acknowledges that, respecting motor carriers, the FMCSA has exclusive regulatory authority to determine a Carrier’s safety fitness and that the FMCSA’s issuance and maintenance of a Carrier’s active operating authority is conclusive authorization for that Carrier to transport property on public highways.
4.3.
Carrier Operations. Broker does not supervise, control, or direct the manner or means by which any Carrier performs transportation. All routing, dispatch, scheduling, appointment compliance, pickup, transit, delivery, loading, unloading, securement, cargo handling, storage, temperature control, seals, custody, possession, compliance with hours-of-service requirements, driver conduct, vehicle operation, parking, security measures, theft prevention, accident response, emergency response, and other transportation-related acts, services, and outcomes remain solely with the applicable Carrier, Ancillary Provider, and/or Customer, as the case may be, and any visibility, tracking, tracing, monitoring, checks, status updates, estimated times, exception notifications, claims administration, insurance verification, authority verification, compliance review, document review, or similar activity by Broker shall be performed solely incident to brokerage and shall not create any right in Customer or any third party to insist upon operational supervision, control, or guarantee.
4.4.
Commercial Discretion. Broker may, in its sole discretion, accept, reject, suspend, discontinue, or decline to arrange any requested Services or any requested shipment particulars, without liability arising from such decision. If Broker determines that Customer’s requested shipment particulars cannot or should not be arranged, Broker may decline further Services, request revised shipment particulars, or communicate revised commercial terms, without thereby assuming responsibility for transportation performance or any operational decision of any Carrier. Broker has no obligation to review, screen, or evaluate Customer’s instructions, manuals, policies, or communications for consistency with these Terms before transmitting them to any Carrier, and Broker’s transmission of the same does not constitute Broker’s approval or endorsement of such instructions, manuals, policies, or communications. Without limiting the foregoing, Broker may, in its sole discretion, refuse to transmit to any Carrier any Customer instruction, manual, policy, or communication that Broker identifies as inconsistent with Sections 2 or 5.8 of these Terms. If, notwithstanding the foregoing, Broker transmits to any Carrier any Customer-authored or Customer-required instruction, manual, policy, or communication that is or could be construed as inconsistent with these Terms, whether or not Broker reviewed the same before transmission, then any such instruction, manual, policy, or communication shall be deemed void and without effect to the extent of such inconsistencies, and Broker may advise the Carrier that any such items are provided as non-binding informational expressions of Customer preferences only. If events or circumstances, including Customer’s or its consignee’s failure to take delivery, occur that affect performance, then Broker may take reasonable steps to obtain Customer’s further instructions, but if, for whatever reason, Broker does not receive timely instructions, or Broker, in its sole discretion, determines that compliance with such instructions is impracticable, then Broker may arrange for storage of, or store, the Goods at the sole risk and expense of Customer, and arrange for any Carrier to abandon transportation and make the Goods or any part of them available to Customer at a place that is reasonable under the circumstances. No tender acceptance rate, fill rate, performance scorecard, key performance indicator, or similar metric, whether set forth in a Service Agreement, Quote, or otherwise, shall be construed to limit or waive Broker's right under this Section to accept, reject, or decline any individual shipment in Broker's sole discretion. Any such metric, if agreed in a Service Agreement executed in accordance with Section 1.2 of these Terms, shall be treated as a non-binding target reflecting the parties' mutual commercial expectations and shall not create a binding commitment, penalty obligation, or basis for default unless the Service Agreement expressly and specifically states that the metric is a binding minimum with identified financial consequences for non-attainment.
4.5.
No Third-Party Beneficiaries or Duties. No activity, obligation, or undertaking described in these Terms, whether performed incident to brokerage or otherwise assumed as an obligation in an applicable Service Agreement, is intended to create, and shall not be construed as creating, any duty, obligation, or liability to any person or entity that is not a party to these Terms or an applicable Service Agreement, including without limitation any duty of care to third parties, except to the limited extent expressly provided in such Service Agreement (if at all).
4.6.
Ancillary Providers. Customer acknowledges that certain operational requirements, including but not limited to intermodal movements, cross-border shipments, transloading, and specialized capacity constraints, may require Broker to engage intermediaries and entities other than over-the-road motor Carriers. Customer expressly authorizes Broker, in its commercial discretion, to arrange for transportation and related services with intermodal marketing companies, rail Carriers, equipment providers, other licensed property brokers, freight forwarder Carriers, warehousemen, transloaders, customs brokers, and other logistics providers (collectively, “Ancillary Providers”). Customer agrees that Broker’s engagement of any Ancillary Provider shall not constitute a breach of any prohibition against subcontracting, delegation, or double-brokering. Customer further acknowledges that Ancillary Providers operate under distinct legal, statutory, and liability regimes that differ materially from over-the-road motor Carriers (including, without limitation, exempt rail circulars under 49 U.S.C. § 10502, bailment and negligence standards under UCC Article 7, or international treaties). Customer expressly agrees that its shipments shall be subject to the liability limitations, tariffs, circulars, and terms of service published or utilized by such Ancillary Providers. Broker’s sole responsibility with respect to Ancillary Providers is to act as an administrative intermediary in arranging their services, and Broker does not assume any liability for the acts, omissions, performance, or cargo loss obligations of any Ancillary Provider.
5.
CUSTOMER’S RESPONSIBILITIES
5.1.
Information. Customer must provide all information and instructions that are reasonably necessary for Broker to effectively arrange for the performance of the transportation and related services requested by Customer in accordance with any applicable laws, rules, regulations, or conventions. Customer will provide detailed and accurate descriptions of any Goods tendered for transportation and their accurate weights and will properly identify all cargo and its actual value in any shipping instructions provided to Broker as well as on any bill of lading used for the associated transportation. Customer is responsible to be aware of and comply with applicable customs and import, export, and transportation laws, rules, practices, and regulations of the governmental authorities of the countries involved in a shipment; to complete and provide all required documentation; and to apply and pay for all licenses, permits, or authorities required by governmental authorities to conduct the business and transportation contemplated by Customer.
5.2.
Ownership and Consent. Customer warrants that it is either the owner or the authorized agent of the owner of the Goods tendered for Services and that it has the authority to, and does, accept these Terms for itself and where applicable, as agent for and on behalf of the owner and any other person having any beneficial ownership interest in the Goods, including insurers, and these Terms will be binding on such persons or entities. To the extent that Customer provides any personally identifiable information (“PII”) about personnel of Customer or other persons to Broker, Customer represents, warrants, and covenants that it has the right and has obtained proper consent from the data subjects for the disclosure of such PII to Broker and the processing of such PII by Broker. Customer agrees to limit its disclosure of such PII to what Broker needs to know in the context of the business relationship between Broker and Customer.
5.3.
Packaging. Customer shall package and label all Goods for shipping in compliance with NMFC, ASTM, ISO, or other applicable industry packaging standards. Customer warrants that all Goods have been properly and sufficiently prepared, packed, and stowed; are fully and accurately described, labeled and/or marked; and that the preparation, packing, stowage, labeling and marking are appropriate to any operations or transactions affecting the Goods and the characteristics of the Goods. Customer warrants that the Goods are suitable for transportation in or on the equipment requested by Customer or otherwise arranged for such transportation. If the Goods are containerized or if the Goods are loaded in a sealed trailer, Customer warrants that the Goods have been packaged, loaded, blocked, and braced in a manner to prevent shifting during transportation and in accordance with applicable industry standards, including the Intermodal Loading Guide of the Association of American Railroads and the guidelines of the applicable rail Carrier, if applicable, and that the weight of the Goods will not exceed applicable weight limitations and will be accurately stated in Customer’s shipping instructions. Customer is responsible for causing all contents of shipments to be accurately counted and documented and to have protective seals applied to the loaded equipment. Customer understands that tarping is not weatherproofing and that Shipper is ultimately responsible for ensuring cargo is appropriately packaged and protected for the intended mode of transport. Broker’s arranging or any Carrier’s acceptance of any shipment will not be a waiver of Customer’s obligation to comply with the foregoing.
5.4.
Goods. In no event will Customer tender any Goods that will or would reasonably be expected to contaminate, taint, corrode, or otherwise adversely impact the quality or condition of other Goods being transported, or the trailer or container used in transporting the Goods. Customer will not request, and Broker will have no responsibility, to arrange for Goods to be carried, stored, or handled separately from other Goods; arrange for Carriers or delivery agents to hold Goods until payment of any amount or until surrender of a document; or arrange for the transport of Goods restricted under circulars, including but not limited to shipments valued more than $100,000 per full truckload conveyance; luxury Goods (including, but not limited to, works of art, jewelry; pharmaceuticals; electronics; currency, negotiable instruments or securities of any kind; precious metals or stones; antiques); human remains; livestock or plants; hazardous materials or dangerous goods; fresh produce; waste of any kind; oversize or overweight shipments; coiled or rolled products; commodities requiring protection from heat or cold or temperature controlled equipment; or any other freight with special requirements or restricted or prohibited by Carriers; in each case without properly identifying such shipments and making necessary prior arrangements.
5.5.
Compliance. Customer will obtain all necessary permits and authorizations necessary to ship the Goods, including, but not necessarily limited to, export and import licenses and permits, and agrees to comply with all applicable laws, including, but not necessarily limited to, any prohibitions on selling to any person on a U.S. or Canadian export control list. Customer agrees to comply with all applicable export control and trade sanctions laws and regulations (“Export Control and Trade Sanctions”), to include without limitation the following obligations: (i) Customer warrants that neither it nor its directors, officers, or subsidiaries are designated or sanctioned parties under Export Control and Trade Sanctions; (ii) Customer agrees not to request services in connection with goods, countries, regions, and/or parties subject to Export Control and Trade Sanctions; (iii) Customer agrees that Broker may refuse to receive, process, or release an order that appears to Broker to involve goods, countries, regions, and/or parties subject to Export Control and Trade Sanctions; and (iv) in the case of cross-border transactions for which Broker is arranging transportation or customs-related services, Customer agrees to provide Broker, within a reasonable time before export or entry, with complete and accurate information required by Export Control and Trade Sanctions, including product descriptions, quantities, weights, values, country of origin, harmonized tariff code, export classification, and any required government authorization. If Customer tenders hazardous materials or dangerous goods for transportation, Customer shall be solely responsible for complying with all applicable laws, rules, and regulations with respect to such cargo and must provide all necessary notice and documentation, including but not limited to a Safety Data Sheet (“SDS”), at the time of its request for Services. If Customer tenders any cargo intended for human or animal consumption, Customer shall be solely responsible for all obligations of a shipper set forth in any applicable law, rule or regulation, including, but not limited to, 21 C.F.R. §§ 1.900 et seq. Customer shall be solely responsible for communicating any food handling instructions or notices on a per shipment basis in writing at the time of its initial request for Services in a manner compliant with all food safety regulations. If Customer is performing under a contract, subcontract, grant, or cooperative agreement with any government entity and wishes to engage Broker for Services connected to such government contract (or if Customer otherwise requires Broker to comply with government-mandated flow-down clauses, Federal Acquisition Regulation provisions, Defense Federal Acquisition Regulation Supplement provisions, or equivalent state or local procurement requirements in connection with the Services), then Customer shall notify Broker in writing before engaging Broker for any such government-related engagements and shall execute a Service Agreement with Broker in accordance with Section 1.2 of these Terms that specifically identifies and addresses the applicable government requirements, flow-down clauses, and any modifications to these Terms necessary to accommodate such requirements prior to the start of any such engagement for any such Services.
5.6.
Equipment. In the event that Customer provides containers, trailers, or other equipment to be used in the transportation of Goods (such containers, trailers, and other equipment, “Customer Equipment”), then Customer shall ensure before dispatch that such Customer Equipment is safe, legal, and in good working condition for its intended use, and Customer shall indemnify, defend, and hold harmless Broker, Carrier, and any Ancillary Provider for any loss, damage, expense, cost, and/or liability arising from or related to any defect or other fault in such Customer Equipment, including without limitation damages to persons or property as a result of any accidents caused or exacerbated as a result of such defect or other fault. In the event that Customer requests that Broker arrange for intermodal or trailing equipment to be dropped at a location for Customer’s convenience and left unattended by the Carrier or Ancillary Provider, Customer and its consignors or consignees shall not lose, damage, or misuse such equipment, and Customer will pay for loss or damage to such equipment occurring during or as a result of such possession or use of such equipment to the extent caused by Customer or its consignees or consignor or their agents or employees, unless otherwise agreed between Customer and the applicable Carrier or Ancillary Provider. Customer shall at all times have separate interchange agreements (e.g., UIIA) in place that establish an arm’s-length bailment respecting any interchanging of equipment with Carriers or Ancillary Providers. Customer will reject and not load onto equipment that is not suitable for transport.
5.7.
Verification and Mitigation. Customer acknowledges that Broker only arranges, and does not itself provide, transportation, and therefore does not maintain personnel at shipping or delivery locations to assist in shipment-release verification, shortage detection, or loss-mitigation efforts. Accordingly, Broker must rely on Customer to take commercially reasonable steps to prevent fraudulent pickup, misdelivery, shortage, and other avoidable losses. For all over-the-road transportation with motor Carriers, Customer shall ensure, through any commercially reasonable procedures it chooses in its discretion to employ, that any person or entity tendering, releasing, loading, unloading, receiving, or otherwise handling the Goods at origin or destination in connection with Services shall, before tendering or releasing any Goods for any shipment arranged by Broker, verify that the driver, tractor, trailer, container, and Carrier presenting for pickup match any shipment-identifying information provided by Broker for the associated shipment, including, as applicable, the Carrier’s legal name and any d/b/a name, U.S. D.O.T. number, and M.C. number, as well as each of the following that are provided (if any): driver name, tractor number, trailer number, container number, VIN, and any seal number or other identifying information communicated by Broker. Customer shall not rely, and shall cause all such persons not to rely, on any changed pickup instructions, substitute equipment information, or revised carrier or driver information unless affirmatively confirmed in writing by Broker through Broker’s authorized communication channels. If any such identifying information does not match, if any substitution is attempted, or if any other suspicious discrepancy exists, then Customer shall, and shall cause the applicable person or entity to, immediately refuse pickup, refrain from loading or releasing the Goods, and notify Broker using contact information previously known to be valid for Broker rather than any contact information contained in the suspicious communication or presented by any actual or alleged Carrier or Carrier personnel. Until Broker affirmatively confirms in writing from a communication channel known to be valid that the attempted pickup is legitimate, Customer shall not permit the Goods to travel with such person, Carrier, or equipment. Customer further agrees that, at the time of delivery of any Goods for any shipment arranged by Broker, Customer shall verify, or shall cause the applicable person or entity to verify, that the count of Goods received matches the count expected to be received. If any shortage, misdelivery, or discrepancy is discovered or reasonably suspected, Customer shall notify Broker immediately, and in all events no later than one business day after delivery. Customer’s failure to verify in accordance with this Section is at Customer’s sole risk. Broker shall have no liability for any loss, liability, costs, damages, or expenses arising out of or related to any failure by Customer or any person or entity described above to perform in accordance with this Section, including without limitation: (i) any release of Goods to any person, carrier, driver, or equipment other than those identified or confirmed by Broker through Broker’s authorized communication channels; (ii) any fraudulent pickup, identity theft, credential spoofing, phishing, or other fraudulent conduct by any third party that could have been mitigated through performance in accordance with this Section; or (iii) any continued or subsequent arrangements with a Carrier or Ancillary Provider after Broker was not timely notified of a delivery shortage, misdelivery, or discrepancy associated with that Carrier or Ancillary Provider. Customer shall defend, indemnify, and hold Broker harmless from and against any and all claims, liabilities, losses, damages, costs, and expenses (including reasonable attorneys’ fees) arising from or related to Customer’s failure to perform in accordance with this Section.
5.8.
No Inconsistent Actions or Instructions. Customer shall not attempt to issue or attempt to require Broker to enforce any “Carrier Manual” or Standard Operating Procedure (SOP) or other instruction, manual, policy, or communication that seeks to (i) dictate driver dress codes, personal conduct, or specific methods of operating a commercial motor vehicle; (ii) dictate specific transit routes, fueling locations, or operational commands to Carrier personnel (other than third-party visitor site safety instructions); (iii) provide trailers or physical equipment to any Carrier without the execution of separate interchange agreements (e.g., UIIA) that establish an arm’s-length bailment; (iv) impose financial deductions or fines tied to transit times or otherwise attempt to schedule transportation in any manner that could operate to coerce, induce, or permit any driver to operate a commercial motor vehicle in violation of hours of service or speed regulations or under conditions which the driver stated would require such driver to violate one or more of the regulations codified at 49 C.F.R. parts 171-173, 177-180, 356, 360, 365-383, or 390-399, or §§ 385.415 or 385.421; (v) attempt to discipline or reprimand individual drivers; or (vi) require any Carrier or any Carrier personnel to display Customer’s branding, logos, signage, or uniforms. Customer shall defend, indemnify, and hold Broker harmless from and against any and all claims, liabilities, losses, damages, costs, and expenses (including reasonable attorneys’ fees) arising from or related to any instruction, manual, policy, or communication authored, originated, or required by Customer that is inconsistent with this Section 5.8.
6.1.
Quotes. Quotes are given on the basis of immediate acceptance and are subject to withdrawal or revision. Whether or not specified in a Quote, Customer is solely responsible for additional charges such as waiting time, layover, demurrage, TONU, and similar standard accessorials. All Quotes and associated charges do not include any state, county or harmonized sales taxes, or other use or value-added taxes, duties or similar charges, and Customer will be liable for such taxes, duties or charges. Rates quoted do not include any fees, charges, or duties related to customs, border crossing, or government taxes, unless otherwise stated. Among other charges, shipments crossing borders will be subject to charges for set-outs of railcars, customs inspections, customs duties, delays for incorrect documentation, and governmental fees. Without limiting the foregoing, Customer understands that each quotation is provided to Customer in reliance on the information furnished by Customer, is current at the time the quotation is provided, and is subject to change based on actual weights, commodity, contents, mode of transportation, dimensions, and volumes tendered by Customer, as well as due to unforeseen or unanticipated costs, occurrences or events which are beyond the control of Broker. All charges and Services offered are subject to Carrier availability and unhindered routes of transportation. Any transit times indicated on quotations are estimates and actual transit times may differ according to Carrier schedules. Such indicated transit times do not reflect delays due to weather, traffic, accidents, permitting times, export control, customs clearance, or any other applicable governmental authority processes, and are applicable to working days only. Customer understands that Quotes are subject to change due to occurrences or events outside of Broker’s control (including, without limitation, delays or changes due to weather, acts of God, war, warlike situations, strikes, riots, permit restrictions or any government acts, curfews, road conditions, or route obstructions).
6.2.
Invoices. Broker will invoice Customer for its Services in accordance with the rates, charges, and provisions set forth in any Quote provided to Customer or the Service Agreement with Customer. Broker may also impose charges in accordance with Broker’s then current rules and accessorial charges as amended from time to time, which rules and accessorial charges are available upon request. If rates are negotiated between the Parties and not otherwise confirmed in writing, such rates will be considered “written,” and will be binding, upon Broker’s invoicing to Customer. Where additional Carrier or other third-party charges have been applied after Broker’s initial invoice to Customer respecting a shipment, Broker will review the charges and, if the charges relate to Services provided to or received by Customer, may issue an adjusted invoice to Customer.
6.3.
Payment Term. Customer will pay invoices within the agreed-to credit period without deduction or setoff. Without limiting the foregoing, Customer shall not impose, deduct, withhold, setoff, or recoup any penalty, fine, chargeback, service-level deduction, liquidated damage, detention or demurrage charge, or other amount against any invoice or payment to Broker unless such specific amount has been expressly agreed in a Service Agreement executed in accordance with Section 1 of these Terms. If no credit period has been established, payment is due within thirty days of the invoice date. Customer acknowledges and agrees that Broker may, in Broker’s sole discretion, establish credit limits applicable to Customer, which limits may be revised from time to time in Broker’s sole discretion. Broker will apply payment to the amount due for the specified invoice, regardless of whether there are earlier unpaid invoices. Customer agrees that overdue invoices will be subject to interest at the lesser of 1.5% per month or the maximum amount permitted by applicable law on the outstanding balance plus collection costs.
6.4.
Disputes. Customer must notify Broker in writing of any dispute regarding a Broker invoice within sixty days of the invoice date. If Customer fails to timely notify Broker of the dispute, Broker’s original invoice will be deemed to be final, and Customer will be deemed to have accepted such invoice in full and to have waived any and all claims or defenses to paying such invoice. Customer must initiate any action for overcharges, duplicate payment, overcollection, or other invoice-related dispute within eighteen months of the invoice date.
6.5.
Collect Shipments. Where shipments are arranged with instructions to collect freight charges, duties, charges or other expenses from the consignee or any other person, Customer will remain responsible for the same if they are not paid by such consignee or other person immediately when due regardless of any contradictory term on any bill of lading and regardless of whether Customer or consignor signed a provision which is the same or similar to Section 7 of the Uniform Bill of Lading. In no event will Broker have any liability arising from or related to acceptance of payment in the wrong form, or inadequacy of payment (including, but not limited to, dishonor of payment for any reason such as insufficient funds), or the consignee’s or other person’s refusal to make payment.
6.6.
Market Adjustments. All rates provided in any Quote or Service Agreement are based on transportation market conditions existing at the time such Quote is provided or such Service Agreement is executed. If transportation market conditions change materially after a Quote is provided or a Service Agreement is executed (including without limitation changes in fuel costs, carrier capacity availability, regulatory requirements, tolls, permits, or significant changes in applicable transportation market indices), Broker may provide written notice to Customer that the applicable rates require adjustment. If the parties are unable to agree on adjusted rates within five business days after such notice, either party may, upon written notice to the other, terminate the affected Quote or the rate provisions of the affected Service Agreement with respect to future shipments, without affecting these Terms, any other provisions of such Service Agreement, or any shipments already tendered. Broker shall have no liability for declining to arrange Services at rates that, due to changed market conditions, would require Broker to operate at a loss or at margins materially below those contemplated at the time of pricing. For the avoidance of doubt, this provision does not apply to individual spot Quotes that have already been accepted and for which a shipment has been tendered, but does apply to standing rate commitments in Service Agreements and to Quotes for future shipments not yet tendered.
7.1.
Carrier Insurance. For motor carrier Carriers, Broker shall require each such Carrier, at each such Carrier’s own expense, to provide a certificate of insurance (“COI”) evidencing the existence of Commercial Automobile Liability insurance coverage with policy limits of not less than $1,000,000 per occurrence and Cargo insurance coverage with policy limits of not less than $100,000 per occurrence. Customer understands that Carrier insurance policies vary materially among Carriers and among insurers and are subject to their own terms, conditions, limitations, deductibles, sub-limits, exclusions, and endorsements, which may change from time to time without notice to Broker or Customer. Carrier insurance policies commonly contain exclusions or limitations relating to, without limitation: acts of God and weather-related losses; theft from unattended vehicles; reefer breakdown and mechanical failure; specific commodities; certain geographic territories; scheduled versus non-scheduled vehicles; certain loading and unloading operations; shipper-loaded and sealed shipments; and losses below stated deductibles. The existence of a COI reflecting a stated policy limit does not mean that all types of loss up to that limit are covered. Broker has no responsibility or liability relating to the issuance, denial, or payment or any claim by Carrier or insurance companies. Customer understands and acknowledges that requiring Carriers to maintain insurance limits above the stated minimums may materially reduce available carrier capacity, limit lane coverage, and increase rates.
7.2.
Broker Insurance. Broker will, at its own expense, maintain all insurance required by law for interstate property brokers. Broker may, in its commercial discretion, carry additional coverages beyond those required by law. Upon request, Broker may provide Customer with COIs evidencing the existence of certain its insurance coverages. If Customer requests in writing that it be named as an additional insured or loss payee under a blanket endorsement on any of Broker’s insurance policies, then if Broker provides a COI to such Customer that so names it, the parties intend that such naming shall be considered under these Terms to meet the condition of being “required by written contract” such as to trigger the application of such blanket endorsement, subject to insurance policy terms as well as these Terms. Customer’s designation as an additional insured or loss payee on any of Broker’s insurance policies shall not, and shall not be construed to: create, expand, or modify any duty, obligation, or liability of Broker beyond those expressly set forth in these Terms; amend, supplement, supersede, or override any limitation of liability, cap on damages, disclaimer, exclusion of consequential damages, waiver, or other risk allocation provision of these Terms; create a direct right of action by Customer against Broker’s insurer(s) independent of, or broader than, Broker’s own liability to Customer as determined under these Terms; entitle Customer to insurance proceeds in excess of Broker’s liability to Customer as determined under this these Terms and subject to all limitations, caps, and exclusions contained herein; or operate to create any inference, presumption, or evidence that Broker has assumed, warranted, or guaranteed any particular level of insurance coverage, protection, or indemnity for Customer’s benefit. Without limiting the foregoing, and except to the extent that a limit of liability applies that results in a lower liability to Broker or its insurers, Customer’s aggregate recovery from Broker and its insurers respecting any claim subject to Broker’s insurance coverages is limited to an aggregate maximum per occurrence of the limits stated on the then-current COI provided by Broker to Customer. In the event of any conflict or inconsistency between these Terms and the terms of any insurance policy, endorsement, or COI on which Customer is designated as an additional insured or loss payee, these Terms shall control as between the parties. Broker makes no representation or warranty regarding the scope, applicability, or enforceability of any insurance coverage. All coverages are subject to all terms, conditions, limitations, deductibles, exclusions, and reservations of the applicable underlying insurance policy. In the absence of a specific requirement to the contrary in a duly executed Service Agreement, Customer’s designation as an additional insured or loss payee on Broker’s insurance policies does not constitute a waiver of subrogation by Broker or Broker’s insurer(s) against Customer, and Broker’s insurer(s) retain all subrogation rights against Customer to the extent permitted by the applicable policy and by law. Regardless of Customer’s designation as an additional insured or loss payee, in the absence of a specific requirement to the contrary in a duly executed Service Agreement, Customer’s own insurance (including, without limitation, any shipper’s interest, all-risk, property, or first-party cargo insurance maintained by Customer) shall be primary and non-contributory, and any coverage afforded to Customer under Broker’s policies shall be excess of and non-contributing with Customer’s own insurance.
7.3.
Customer Insurance. As between Customer and any Carrier, the Customer has the greater understanding of the Goods, their respective values, and their risk of loss. Customer also understands that Carriers have varying cargo policies that are each subject to their own exclusions, limits, and other policy terms that may exclude or limit coverage for certain Goods and in various loss scenarios. Accordingly, Customer is solely responsible for maintaining adequate insurance to its satisfaction covering the Goods generally as well as covering the Goods in transit, including loading and unloading, at levels commensurate with its risk appetite. Customer’s sole and exclusive recourse for loss of or damage to cargo is against the Carrier and, to the extent applicable, the Carrier’s insurer, subject in all cases to the terms, conditions, limitations, and exclusions of the Carrier’s insurance policy and applicable law; and if Customer elects not to procure its own shipper’s interest cargo insurance or other first-party coverage, Customer assumes the risk that Carrier’s insurance may not respond to a claim for loss or damage, in whole or in part, by reason of policy exclusions, limitations, deductibles, insolvency of the insurer, lapse in coverage, or otherwise.
7.4.
Source of Coverage for Goods. Customer may consult an insurance broker or insurance carrier on its own to arrange insurance appropriate to Customer’s needs. As an alternative, where Broker agrees to do so, Broker may offer, for an additional cost and through its designated insurance broker, to arrange for shipment-specific cargo policies to be issued in Customer’s name. Following the issuance of any such policy through their insurance underwriter, Broker will have no further duty regarding cargo insurance and no liability for loss of, delay of, or damage to the Goods during transport or storage, whether covered by insurance on the Goods or not, and whether such loss, delay or damage has been caused or contributed to by its negligence or breach of these Terms, or otherwise. Any coverage on the Goods will be subject to the terms and conditions of the specific policy or policies procured. Broker is not liable if Customer, for any reason whatsoever, fails to recover a loss in whole or in part from the insurer under any applicable policy, even though the premium charged by the insurer may be different from Broker’s charges to Customer. Customer acknowledges and agrees that Broker’s role is limited to facilitating placement of coverage with entities licensed to sell insurance and that Broker is not itself in the business of selling insurance or insuring risk.
7.5.
No Representation of Coverage. Broker makes no representation or warranty, express or implied, regarding: (i) the existence, scope, terms, conditions, limits, deductibles, exclusions, or adequacy of any insurance coverage; (ii) the financial solvency, claims-paying ability, or AM Best or comparable rating of any insurer; (iii) the likelihood that any insurer will accept, pay, or settle any particular claim; or (iv) whether any insurance coverage is sufficient or appropriate for any particular Shipment, commodity, route, or peril. Any information regarding insurance that Broker provides to Customer, whether in COI form, written correspondence, or otherwise, is provided solely as a convenience and for informational purposes and shall not be construed as a representation, warranty, guarantee, or assumption of liability by Broker with respect to such actual coverage. Customer understands that COIs are summary documents provided as a matter of information only; do not amend, extend, or alter the coverage afforded by the underlying policies; and do not constitute any guarantee, warranty, or representation that coverage exists for any particular shipment, commodity, or peril. COIs may not reflect real-time policy status, recent cancellations, non-renewals, changes in coverage terms, or endorsements modifying or restricting coverage. Broker’s possession or verification of a COI shall not be construed as a representation or warranty by Broker as to the existence, scope, adequacy, or applicability of any insurance coverage, and Broker has no obligation to obtain, read, interpret, analyze, or make any determination regarding the actual terms, conditions, exclusions, limitations, deductibles, endorsements, or adequacy of any insurance policy, whether generally or with respect to any particular shipment, commodity, or peril. Broker is not an insurance company, insurance producer, insurance agent, insurance broker, insurance advisor, surplus lines broker, or risk management consultant. Broker does not sell, bind, place, underwrite, or administer insurance. Broker is not licensed, qualified, or authorized to provide insurance advice, recommendations, or opinions. Nothing in Broker’s verification of a Carrier’s COI or insurance status, or in any communication between Broker and Customer regarding insurance, shall be construed as insurance advice or as creating a duty to advise.
8.
LOSS OR DAMAGE CLAIMS AND LIMITATIONS OF LIABILITY
8.1.
Carrier Liability. Carriers assume liability for loss and damage to Goods in accordance with their applicable published tariffs for Broker providing such services, up to the maximum liability set forth in such tariff (which generally include per package or per pound limitations and a maximum liability of $100,000 per trailer, container, or other conveyance), unless Customer has followed the procedures for declaring higher limitations of liability. Absent special arrangements, Customer agrees that each Carrier’s maximum liability for loss or damage to Goods is limited per occurrence to the lesser of the liability set forth in the Carrier’s published tariff or $100,000 per trailer conveyance. If Customer would like to arrange for a Carrier to accept liability for amounts higher than the underlying Carrier’s limit of liability for loss and damage to Goods, Customer must either execute a Service Agreement in compliance with Section 1 of these Terms specifying different requirements or otherwise provide at least five-business days advance written notice to Broker in advance of pick-up, obtain and execute a special Quote from Broker indicating such higher required limit of liability and the higher freight rate that will apply, and prepay the shipping charges prior to the time of pick-up. Failure by Customer to comply with the foregoing will release Broker, Carriers, and Ancillary Providers from liability in excess of otherwise applicable liability. Notwithstanding the foregoing, Broker does not offer to arrange for full value (e.g., Carmack) liability for intermodal or motor carrier shipments that originate from or are delivered to anywhere outside of the borders of the United States. Customer represents that it has had a reasonable opportunity to choose among different levels of liability at different rates. Where Customer has not arranged for higher liability limits, Customer agrees that it is declining to pay higher rates for a higher liability limit and is instead electing to pay the quoted rates in exchange for a lesser liability for loss or damage to Goods. Customer understands and acknowledges that requiring Carriers to provide higher liability limits may materially reduce available carrier capacity and limit lane coverage. The parties are relying on these limits of liability as material inducements to doing business together at the quoted rates. Broker would not arrange the transportation at the quoted freight rates but for Customer’s agreement to limit liability for loss or damage to cargo as stated in these Terms. Customer agrees and stipulates that the limits of liability are reasonable under the circumstances surrounding the transportation. Customer will look solely to its own insurance, a shipper’s interest policy, or insurance provided by the Carrier or other Ancillary Provider for damage to Goods in transit. Customer hereby acknowledges, understands, and agrees that the Carrier(s) and Ancillary Provider(s) have limitations of liability in place that restrict Customer’s recovery with respect to such claims and that, except as otherwise expressly set forth herein, Broker is under no obligation to ensure that Carriers or Ancillary Providers accept full value liability with respect to Goods.
8.2.
Broker Liability. Broker is not a Carrier, does not itself ever take possession of cargo, and does not itself have any ability to directly inspect, package, or secure cargo. Accordingly, unless altered by the terms of a Service Agreement executed in compliance with Section 1 of these Terms, Broker is not liable for any claims for loss, damage, or delay to Goods whatsoever except to the limited extent that Customer’s direct damages are directly and proximately caused by Broker’s negligence or willful misconduct, in which case Broker’s maximum liability, whether the claim is founded in contract, tort, or otherwise, in any one occurrence will be limited to the greater of: (i) the amount of the charges imposed by Broker with respect to arranging for the transport of such Goods, or (ii) $10,000. Broker shall have no liability to the extent any claim against Broker is preempted by 49 U.S.C. § 14501. In the event of claims related to loss, damage and/or delay to Goods, Broker’s sole responsibility under these Terms will be to take commercially reasonable steps to facilitate settlement or assist in the filing of any such Claim hereunder between Customer and/or owner of the Goods shipped and the applicable Carrier(s) or Ancillary Provider(s), all in accordance with these Terms. Notwithstanding the foregoing, and while Broker is not obligated to do so in the absence of a specific requirement to do so in a Service Agreement executed in compliance with Section 1.2 of these Terms, if for any reason Broker should choose to pay Customer any amount in connection with any freight claims of any kind, then Customer automatically assigns any and all rights to the Goods and any claims against Carriers or Ancillary Providers related to the same to Broker to the extent of any such payments by Broker, and Customer agrees to fully cooperate in such claims against Carriers and Ancillary Providers as may be brought by Broker or its insurers in efforts to subrogate such losses. Nothing in the foregoing shall operate as assumption by Broker of any obligation to perform the transport or alter Broker’s status as a property broker only.
8.3.
Claims Process. As a condition to filing a claim against Broker as well as to Broker assisting with submission of any claims for loss, damage or delay to Goods, Customer on its own behalf and on behalf of the owner of the Goods will provide Broker with any and all information relating to the Claim prior to 30 calendar days from the date of delivery. Customer recognizes that Carriers and Ancillary Providers may impose claim-filing limitations and agrees that claims filed after such notice periods will be validly denied by the Carriers and Ancillary Providers. Customer acknowledges and understands that, except as otherwise provided herein, Broker has no obligation to assist Customer in processing Customer’s claims with any Carriers or Ancillary Providers. Broker is not, and has not been, an insurance company or insurer as those words are commonly understood.
8.4.
Other Limitations. In no case will Broker nor any Carrier or Ancillary Provider be liable for: (i) damage to Goods or equipment to the extent due to packaging, loading, unloading, blocking, bracing, or securing of the Goods; (ii) damage to Goods or equipment to the extent due to inherent vice or defect in the Goods transported, including rusting of metals, swelling of wood caused by humidity, moisture or condensation, deterioration of perishable products, or damages caused by heat or cold; (iii) damage to Goods or equipment to the extent due to force majeure events; (iv) damage to Goods or equipment to the extent due to an act, omission or default of Customer, including the consignor, the consignee, the beneficial owner of the Goods or other third party logistics provider; (v) shipments stopped and held in transit at Customer’s request; or (vi) loss or damage of Goods that violate any applicable law or regulation, have not been accurately described, or that have been loaded in a trailer so that the combined weight exceeds applicable weight limits. Customer will defend, indemnify and hold Broker, the Carriers, and the Ancillary Providers harmless from any claim for loss, damage or delay to Goods in excess of the liabilities assumed under, or the limitations contained in, these Terms or filed other than in accordance with these Terms. Neither Broker nor any Carrier nor Ancillary Provider will have any liability for loss, damage or delay of Goods or shipments occurring or stored in Mexico. If this geographical liability limitation is judicially or otherwise determined to be ineffective for any reason whatsoever, then Broker’s and the Carrier’s or Ancillary Provider’s liability for loss or damage in Mexico will be limited to the lesser of (a) five U.S. cents per pound ($0.05/lb.) or (b) the current standard liability limitation under Mexican law for uninsured goods for which no higher valuation has been declared, with claims for such Mexican losses to be asserted within the time limits provided under Mexican law. Where Goods are transported across different jurisdictions, the location of any loss or damage shall be presumed to occur in the jurisdiction resulting in the lowest applicable liability. Customer agrees not to withhold or set off outstanding invoices and will pay such invoices in full. Customer is obligated to mitigate its damages for loss or damage to Goods and is not entitled to abandon the Goods to Broker, Carrier, or Ancillary Provider. If Customer does not elect to salvage the Goods, any claim for Goods loss or damage will nevertheless be reduced by a reasonable salvage allowance and by reasonable storage or other costs incurred while waiting for disposition instructions.
8.5.
Other Terms. Unless otherwise agreed by Broker, Customer is responsible for applying the seal to any trailer tendered for Services. If the seal originally applied to the trailer is intact upon delivery, neither Broker nor the Carriers will be liable for shortage or theft unless there is physical evidence of unauthorized entry into the Trailer while it was in the possession of the Carrier and proof of actual damage or loss of Goods. Shortage or theft claims must be supported by seal records and actual loading and unloading records. Such absolution of liability for shortage or theft will also occur if the seal is broken (i) at the direction and under the supervision of a Governmental Authority and is resealed after inspection by such Governmental Authority or (ii) because it becomes reasonably necessary to do so to inspect, reposition, or protect the cargo or the trailer or to comply with applicable laws or regulations. In both instances, Broker will request the Carrier to document the breaking of the original seal and application of a new seal in such circumstances. In the absence of any other evidence, a missing or broken seal will not create a presumption of loss to or contamination of the Goods. The consignee may not refuse delivery of a shipment due to broken or missing seals unless there is direct physical evidence of product tampering or contamination beyond the broken or missing seal. Contamination claims must be supported by appropriate quality inspections outlining the full actual loss.
9.1.
Broker Obligations. Broker is an intermediary with no “boots on the ground” respecting physical operations. Accordingly, except for claims for loss or damage to Goods, which are governed by Section 8 of these Terms, and except to the extent that more expansive indemnification obligations have been set forth in a Service Agreement between Customer and Broker duly executed in accordance with Section 1 of these Terms, Broker will defend, indemnify, and hold Customer harmless only from and against claims arising out of Broker’s performance under these Terms to the extent directly and proximately caused by (i) the negligence or willful misconduct of Broker or (ii) Broker’s material violation of applicable laws or regulations; except in each case to the extent such claim represents consequential, punitive or special damages or is the result of the negligence or other fault of Customer. In the event that Broker assumes expanded indemnification obligations in a Service Agreement, Broker’s assumption of any indemnity, defense, or hold harmless obligations shall still be limited to the extent of losses, liabilities, damages, costs, and expenses that are proximately caused by Broker’s own acts and omissions. Except to the limited extent that a Service Agreement expressly states otherwise, Broker’s maximum aggregate liability and maximum aggregate indemnity, defense, and hold harmless performance and payment obligations for any occurrence are limited, in combined total, to a maximum of the highest applicable per-occurrence policy amount listed on its most recent COI provided to Customer.
9.2.
Customer Obligations. Except for claims for loss or damage to Goods, which are governed by Section 8 of these Terms, Customer will defend, indemnify and hold Broker harmless from and against any loss, liability, damage, cost, or expense (including reasonable attorneys’ fees) arising out of Customer’s acts or omissions to the extent caused by (i) the negligence or intentional misconduct of Customer; (ii) Customer’s or its employees’ or agents’ violation of applicable laws or regulations; (iii) Customer’s or its employees’ or agents’ failure to comply with these Terms; (iv) Customer’s or its employees’ or agents’ failure to comply with obligations imposed by underlying Carriers; or (v) Broker’s compliance with or reliance on Customer’s instructions; except in each case to the extent such loss, liability, damage, cost, or expense is the result of the negligence or other wrongful conduct of Broker.
9.3.
Cooperation. If Customer or Broker receives a claim for which the other party is responsible as an indemnifying party, the party receiving the claim will promptly notify the other party and provide reasonable assistance and information requested in the defense against such Claim.
10.
WAIVER OF CONSEQUENTIAL DAMAGES
IN NO EVENT WILL BROKER BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, USE OR OPPORTUNITY, WHETHER OR NOT SUCH DAMAGES WERE FORESEEN OR UNFORESEEN, WHETHER OR NOT BROKER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND WITHOUT REGARD TO THE THEORY OF RECOVERY ASSERTED IN SEEKING TO RECOVER SUCH DAMAGES (WHETHER TORT, CONTRACT, OR OTHERWISE). CUSTOMER WAIVES AND AGREES NOT TO ASSERT ANY CLAIM SEEKING TO RECOVER ANY SUCH DAMAGES FROM BROKER IN CONNECTION WITH THESE TERMS OR THE SERVICES. CUSTOMER ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL ELEMENT OF THE ECONOMIC BARGAIN BETWEEN CUSTOMER AND BROKER AND THAT BROKER WOULD NOT PROVIDE THE SERVICES AT THE QUOTED PRICES BUT FOR CUSTOMER’S WAIVER OF ANY RIGHT TO SEEK SUCH DAMAGES. CUSTOMER CERTIFIES THAT IT IS NOT AWARE OF ANY SPECIAL CIRCUMSTANCES THAT MIGHT EXPOSE BROKER TO ANY CLAIM FOR SUCH DAMAGES BY ANY OTHER PERSON OR ENTITY IN CONNECTION WITH THE SERVICES. THE SERVICES ARE PROVIDED “AS IS”, AND BROKER DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS RELATING TO THE SERVICES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY EXPRESS OR IMPLIED REPRESENTATIONS, WARRANTIES, CONDITIONS OF FITNESS, OR ANY OTHER WARRANTY OR CONDITION ARISING BY STATUTE, CUSTOM, OR USAGE OF TRADE RELATED TO THE SERVICES PROVIDED HEREUNDER.
Neither Broker nor any Carrier or Ancillary Provider will be liable to Customer for delay or failure to perform the Services during any time in which such performance is prevented by fire, explosion, act of God (including floods, hurricanes, tornadoes, earthquakes, severe weather conditions and natural disasters); strike, lockout or labor shortage or disturbance; war, terrorism, embargo, quarantine, riot, civil disobedience, hijacking or robbery; congestion, derailment or service issues affecting the Carriers or Ancillary Providers; closing or disruptions affecting highways, rail networks, ports, air traffic or other transportation systems; the acts of any Government Authority or customs inspection requirements; permitting delays; acts or omissions of Customer; or any other cause outside of the reasonable control of Broker, Carrier, or Ancillary Provider. Broker will provide notice within a reasonable time to Customer of such delay or inability to perform.
If any provision (including any sentence or part of a sentence) of these Terms is held invalid or unenforceable for any reason by a tribunal of competent jurisdiction, then all other provisions of these Terms will remain valid, enforceable, and binding on the parties, and the invalid or unenforceable provision will be deemed modified in a manner preserving as much of the parties’ apparent original intent as possible (or, if necessary, severed), but in each case only to the minimum extent necessary to cure the defect giving rise to such invalidity or unenforceability.
A waiver of any provision of these Terms will not constitute a waiver of any other provision, nor will any waiver constitute a continuing waiver. No waiver will be deemed effective or binding unless executed in writing by an authorized representative of the party making the waiver. The failure of a party to insist upon the strict performance of any provision of these Terms, or to exercise any right under these Terms, will not be construed as a waiver of the provision or right, nor be deemed a customary practice contrary to the provision or right. The rights and remedies of each party under these Terms are cumulative, and the exercise of any of them will not be exclusive of any other right or remedy provided by these Terms.
14.
APPLICABLE LAWS AND JURISDICTION
This Agreement shall be governed, construed, and enforced in accordance with federal transportation law where applicable, and otherwise with the laws of the State of Minnesota, without giving effect to any choice or conflict of law rules; provided, however, that Customer agrees and stipulates to the extent permitted by law that: (i) any state statutory or common law which would expand the liability, obligations, or duties of Broker beyond what is contemplated in these Terms would have a material effect on the offered rates, routes, and services offered by Broker; (ii) such law is preempted by 49 U.S.C. § 14501; and (iii) Customer will not seek to enforce any such law against Broker. Any dispute arising under or related to these Terms or either party’s performance hereunder shall be brought exclusively in the state or federal courts located in Stearns County, Minnesota, and each party waives any right to contest the application of such venue to such dispute.
Nothing in these Terms will be deemed to require or obligate Customer to request any minimum amount of Services from Broker or for Broker to accept any particular Customer request for Services. Customer is free to work with other Brokers and Broker is free to work with other Customers, in each case without restriction. No party is obligated to work with the other. No non-solicitation, non-compete, or exclusivity obligation shall apply between Broker and Customer unless expressly set forth in a Service Agreement duly executed in accordance with Section 1.2 of these Terms. Any non-solicitation, non-compete, exclusivity, or similar restrictive provision contained in any document other than a Service Agreement executed in accordance with Section 1.2 of these Terms, including any Quote, purchase order, tender, credit application, portal, vendor agreement, or other document, is rejected and shall have no force or effect. To the extent any non-solicitation or non-compete obligation is set forth in a Service Agreement executed in accordance with Section 1.2 of these Terms, such obligation shall, to the extent not already so limited or more narrowly tailored, be reformed and construed to prohibit only knowing and intentional solicitations made with the specific intent to misuse Confidential Information or access obtained solely through the relationship between the parties to tortiously undercut a material, ongoing, and current legitimate business relationship existing at the time of the alleged solicitation. General competitive activity, the use of publicly available information, the engagement of carriers or service providers known to a party through independent sources, and the continuation or expansion of business relationships that predate the Service Agreement shall not constitute a breach of any non-solicitation or non-compete obligation. Any remedy for breach of a non-solicitation or non-compete obligation, as reformed by this Section, shall be limited to actual, proven, direct damages and shall not include injunctive relief, specific performance, or liquidated damages. For the avoidance of doubt, Broker’s engagement of Carriers and Ancillary Providers to perform transportation does not constitute solicitation of Customer’s carriers or service providers, and Customer’s engagement of carriers or other brokers does not constitute solicitation of Broker’s carriers or service providers.
The subject headings of this Agreement are included for convenience only and do not affect the construction or interpretation of any of its provisions. All dollar amounts are based on U.S. Dollars. The parties desire that the contra proferentem (“against the offeror”) principle of contract interpretation is not to be applied to the Agreement; that is, any ambiguity or inconsistency in the Agreement is not to be resolved strictly against the party that drafted the ambiguous or inconsistent provision(s), but instead is to be resolved in accordance with the most reasonable construction. For avoidance of doubt, except to the limited extent (if any) that the Agreement expressly so states, the parties do not intend, by entering into the Agreement, to enter into any fiduciary relationship with each other or with any other party. Except to the extent (if any) clearly stated otherwise in these Terms, the parties do not intend for these Terms to create any right or benefit for any party except themselves.
All provisions of these Terms that, by their nature, should or would be expected to extend beyond termination or expiration of these Terms, will survive any such termination or expiration, including without limitation this provision and all provisions pertaining to governing law, limitations of liability, disclaimers, releases, waivers, and indemnification.
Each party acknowledges that, in connection with the Services, it may receive or have access to information that is proprietary or confidential to the other party, including without limitation rates, pricing, margins, shipment volumes, customer lists, carrier lists, carrier vetting criteria, operational procedures, business strategies, and financial information (“Confidential Information”). Confidential Information does not include information that: (a) is or becomes publicly available through no fault of the receiving party; (b) was known to the receiving party prior to disclosure without obligation of confidentiality; (c) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information; or (d) is rightfully received from a third party without restriction on disclosure. Each party shall hold the other party’s Confidential Information in confidence and shall not disclose it to any third party except: (i) to its employees, agents, and contractors who have a need to know in connection with the Services and who are bound by confidentiality obligations no less restrictive than those set forth herein; (ii) to Carriers and Ancillary Providers to the extent necessary to arrange for and perform the Services; (iii) as required by applicable law, regulation, or legal process, provided that the disclosing party is given prompt notice (to the extent permitted by law) and reasonable opportunity to seek protective relief; or (iv) to the party’s insurers, auditors, legal counsel, or designated third-party freight audit and payment providers in connection with the Services. For the avoidance of doubt, Broker’s carrier vetting criteria, carrier selection methodologies, internal compliance standards, pricing models, and technology systems are Broker’s Confidential Information and proprietary trade secrets. Customer shall not require, and Broker shall have no obligation to provide, disclosure of such information as a condition of Services or in connection with any claim, dispute, or proceeding, except to the extent compelled by a court of competent jurisdiction after Broker has had the opportunity to assert applicable privileges and protections. The obligations of this Section shall survive termination of these Terms for a period of three years, except with respect to trade secrets, which shall remain confidential for so long as they qualify as trade secrets under applicable law.
These Terms are effective as to each Customer as of the date such Customer first engages Broker for Services and shall remain in effect until terminated in accordance with this Section. These Terms apply to each engagement of Broker by Customer for Services and do not create any exclusive or minimum-volume commitment by either party. Either party may terminate the applicability of these Terms to future Services by providing thirty days’ prior written notice to the other party. Termination shall not affect any Services for which Broker has already been engaged, any shipments in transit, or any Quotes or Service Agreements then in effect, all of which shall continue to be governed by these Terms through completion. Either party may terminate these Terms and any outstanding Quotes or Service Agreements immediately upon written notice if the other party: (a) materially breaches these Terms and fails to cure such breach within fifteen days after receipt of written notice specifying the breach; (b) becomes insolvent, files or has filed against it a petition in bankruptcy, makes an assignment for the benefit of creditors, or has a receiver or trustee appointed for substantially all of its assets; or (c) ceases to maintain any license, authority, or bond required by law for the performance of its obligations under these Terms. Upon termination, Broker shall have no obligation other than to use commercially reasonable efforts to arrange for completion of any shipments in transit at the time of termination, including shipments for which a rate confirmation has been issued to a Carrier but pickup has not yet occurred. Termination shall not affect: (i) any liability or obligation arising from Services provided or shipments tendered before the effective date of termination; (ii) any limitations of liability, waivers, releases, indemnification obligations, or other risk allocations applicable to pre-termination Services, which shall survive in accordance with their terms and the survivability provisions of these Terms; (iii) Customer’s obligation to pay all invoices for Services rendered; or (iv) any other provisions that by their nature or to give effect to their intent would be expected to survive termination. Without limiting the foregoing, Broker may immediately suspend Services without prior notice if: Customer fails to pay any invoice when due; Customer exceeds any credit limit established by Broker; Broker reasonably determines that Customer’s creditworthiness has materially deteriorated; or Broker reasonably determines that continued Services would expose Broker to liability inconsistent with these Terms. Suspension shall not constitute termination, and Broker may resume Services at its discretion upon resolution of the condition giving rise to suspension. Notwithstanding any provision of a Service Agreement to the contrary, no Service Agreement shall restrict Broker’s right to terminate for convenience on more than sixty days’ notice.
Neither party may assign, transfer, or delegate any of its rights or obligations under these Terms without the prior written consent of the other party, which consent shall not be unreasonably withheld; provided, however, that either party may, without the other party’s consent, assign these Terms in their entirety to: (a) an affiliate or subsidiary that controls, is controlled by, or is under common control with the assigning party; or (b) a successor entity in connection with a merger, acquisition, reorganization, or sale of all or substantially all of the assigning party’s assets, provided that such successor entity assumes all obligations of the assigning party under these Terms. Any assignment in violation of this Section shall be void. No assignment shall relieve the assigning party of its obligations under these Terms with respect to Services provided or shipments tendered before the effective date of assignment. The assignee in any permitted assignment shall be bound by all provisions of these Terms. For the avoidance of doubt, Broker’s engagement of Carriers and Ancillary Providers to perform transportation in connection with the Services does not constitute an assignment, delegation, or subcontracting of Broker’s obligations under these Terms, but rather is the performance of Broker’s brokerage function of arranging transportation through independent third-party contractors.
All notices, demands, and other formal communications required or permitted under these Terms shall be in writing and shall be deemed duly given: (a) upon delivery, if delivered personally; (b) upon confirmation of transmission, if sent by email to an address designated by the receiving party for receipt of formal notices; (c) one business day after deposit with a nationally recognized overnight courier service, prepaid; or (d) three business days after deposit in the United States mail, certified or registered, postage prepaid, return receipt requested.
Notices to Broker shall be directed to:
ATS Logistics Services, Inc.
Attn: Contracts
725 Opportunity Drive
St. Cloud, MN 56301
Email:
Notices to Customer shall be directed to the address or email provided by Customer in its most recent credit application, Service Agreement, or written notice of updated contact information.
Either party may change its notice address by providing written notice to the other party in accordance with this Section. Routine operational communications, including shipment instructions, status updates, scheduling, and invoicing, may be made through any communication channel customarily used between the parties and need not comply with the formal notice requirements of this Section. For the avoidance of doubt, no operational communication shall constitute a formal notice under this Section unless it expressly states that it is intended as such.
