Application of Service Terms
EXPRESS FAMILY OF COMPANIES (EXPRESS) is a federally licensed freight broker and common carrier operating pursuant to Docket Numbers MC-493116-B and MC-605634-C. The following Service Terms are applicable to all shipments arranged for by EXPRESS and shall extend to the licensed and qualified service providers whose services EXPRESS arranges. These contractual terms shall bind EXPRESS and its service providers on the one hand and its customers on the other upon tender of shipment to EXPRESS and shall apply to all services rendered by or through EXPRESS unless otherwise agreed in writing.
These Service Terms supersede all previous service terms and other prior statements concerning rates and terms of EXPRESS services. EXPRESS reserves the right, from time to time, to modify, amend, or supplement its rates, features of service, products and service terms without notice. Copies of these Service Terms may be obtained by contacting EXPRESS. Rates and service quotations by our employees or agents will be based upon information provided by you, but final rates and service may vary depending upon vehicle availability, weight and dimensions of the actual shipment tendered and the application of Service Terms herein. Any conflict or inconsistency between any written or oral statements concerning rates, features of service, products and Service Terms applicable to EXPRESS service will be controlled by these Service Terms and the bill of lading. EXPRESS makes no other warranties, express or implied. Monetary amounts stated in these Service Terms refer to U.S. Dollars.
EXPRESS Bill of Lading
The terms of EXPRESS’ Bill of Lading for pickup and delivery shall serve as a receipt of goods. These Service Terms shall apply to all shipments tendered to EXPRESS.
Other Bills of Lading or Shipping Documents
Any bill of lading or shipping document which is inconsistent with the transportation contract and receipt for goods published in these Service Terms shall be executed for convenience only and shall be invalid to the extent it conflicts with these Service Terms.
Drivers employed by EXPRESS and other qualified service providers acting on its behalf are not authorized to bind EXPRESS to different Service Terms.
Convenience Interlining and Substituted Service Authorized
To ensure convenient and efficient operations, EXPRESS reserves the right to engage other licensed and insured service providers to render all or part of the delivery of any shipment. EXPRESS shall be solely responsible for the selection and retention of such qualified service providers and shall indemnify and hold harmless shipper from vicarious liability arising out of its choice of substituted service providers. The terms set forth in these Service Terms shall apply to all substituted service rendered under this provision.
Customer and Shipper Warranties
Any party tendering shipments to EXPRESS which is not the beneficial owner of the goods represents and warrants to EXPRESS that it is authorized by the beneficial owner, shipper or consignee to tender the shipment to EXPRESS on its behalf and to bind it to the conditions of these Service Terms. Any customer tendering cargo to EXPRESS further agrees to indemnify and hold harmless EXPRESS and its substituted carriers (if any) from any claim that it lacked authority to act on the principal’s behalf and bind it to the Service Terms set forth herein, including limitations of liability.
Liability for Freight Charges
Subject to its sole discretion, EXPRESS may extend credit to qualified customers and may by agreement initially bill an intermediary, the named consignor, or the named consignee, for services. All charges shall be paid within 7 days of invoice without offset. Invoices not paid within 7 days shall be subject to interest at the rate of 1 1/2% per month until paid. If collection efforts are required by EXPRESS to collect any amount due, collection fees at the rate of one-third or $500, whichever is less, shall apply.
EXPRESS may employ other intermediaries as its agents to solicit shipments and will bill such parties as a disclosed agent of the shipper who guarantees payment upon default. EXPRESS preserves recourse to the consignor and consignee as shown on the shipping documents in the event freight charges are not paid and reserves the right to demand prepayment of charges at any time.
EXPRESS shall have a lien on all shipments in its possession, whether actual or constructive, tendered to it by the shipper for any and all amounts due by shipper. This shall be a general lien on all shipments for payment of freight charges past and present and shall not be limited to a specific lien on shipments for which charges are due. Enforcement of this spreading lien will be on commercially reasonable terms.
EXPRESS warrants that it and any carrier retained by it are properly licensed and authorized to conduct operations in accordance with federal and state law, will maintain sufficient cargo insurance to pay any claim subject to the limitations of these Service Terms; and are independent contractors and not employees of their customer for purposes of employment law or any other reason.
Cargo Loss or Damage
The following provisions shall govern all claims for cargo loss or damage made against EXPRESS or substituted service carriers retained by it or its broker affiliate.
All shipments, regardless of origin and destination, size of shipment or the size of the vehicle in which it is transported, or prior or subsequent movement by any other mode, shall be subject to termination in accordance with general principles of federal transportation law, including but not limited to 49 U.S.C. §14706 (the Carmack Amendment). As is customary in the expedited freight industry, EXPRESS follows simplified freight all kinds rating procedures predicated upon a released evaluation of 50 cents per pound per article. Unless otherwise noted or agreed to in writing, this limit of liability shall apply to all shipments tendered to EXPRESS and shall limit not only EXPRESS’s liability, but also the liability of any substituted motor carrier in whose care, custody and control the shipment is tendered pursuant to arrangements made by it or its broker affiliates.
In order to ensure strict compliance with surface transportation statutes, EXPRESS’s customers are allowed to choose an alternative higher limit of liability.
EXPRESS and its substituted carriers shall not be liable for special, incidental or consequential damages resulting from failure to make delivery by any appointed time or any loss or damage to a shipment. The types of special and consequential damages for which EXPRESS shall not be liable include, but are not limited to, loss of profit or loss of revenues due to idle production times or waiting times, lost rents, damage to reputation, down or idle time, interest and finance charges, loss of use of goods, additional labor costs, material escalation costs, depreciation, rental costs, additional energy costs, loss of productivity and efficiency or any other reason.
Higher Per Shipment Evaluation Rates
A shipper may declare a higher released evaluation for a shipment not to exceed $25,000 per shipment, in writing, at or before pickup without special corporate approval. In addition to standard rates, shipper shall pay $.65 for every $100 of additional evaluation over $.65 per pound.
Any shipment with a declared value of in excess of $25,000 which is inadvertently accepted without prior written approval of an EXPRESS corporate officer will be released to a maximum of $25,000 per shipment, and subject to the surcharge provided for herein.
Regardless of the release rate applicable to the shipment, EXPRESS’s liability shall be further limited to the full actual value of the shipment. In the absence of proof of the weight of any damaged or lost article, claims will be adjusted by dividing the weight of the shipment by the number of articles shipped.
Commodities Not Accepted for Transport
Items of a fragile nature shall not be accepted for carriage unless agreed to in writing with by an EXPRESS corporate officer. Such items shall include but not be limited to: statues of any kind, antiques of any kind, glass, crystal ware, glass bottled goods, china, audio and / or video equipment of any type, cameras, clocks, stoneware, pottery, earthenware, marble and marble tiles, lighting fixtures with or without bulbs, display booths or cases which include lighting fixtures with or without bulbs, paintings and artwork, electric bulbs, vacuum flasks, vitreous enameled objects, cast iron objects, bricks, firebricks, crucibles, asbestos, cement products, carborundum wheels, and radio/TV/cathode ray and similar transmitting or receiving tubes.
Hazardous materials shall not be accepted for carriage under any circumstances.
Items of a fragile nature that may be inadvertently accepted without the written approval of an EXPRESS corporate officer shall still be subject to all Service Terms, including but not limited to limitation of liability, whether or not any declared value is made. Currency, negotiable instruments, documents of title, object d’art, and one of a kind articles will not be accepted.
No time is fixed for the completion of carriage, and neither EXPRESS nor its carriers shall be liable for any loss or damage caused by failure to commence or complete carriage within a certain time. EXPRESS and its carriers assume no obligation to carry goods over any particular route. EXPRESS and its carriers assume no obligation to carry the goods in any particular vehicle, and are authorized to select alternate means of transportation and deviation from route without liability. EXPRESS will endeavor to arrange for expedited transportation of shipments tendered to it without unreasonable delay.
No Special Damages
Neither EXPRESS nor its substituted carriers shall have any liability for any special or damages. Shipments which do not have a prior or subsequent shipment by air shall be governed by the Carmack Amendment, 49 U.S.C. §14706 and the released rate provisions contained herein shall be construed as complying with the notice, election of rates and other requirements.
Claims Handling-Time Limits and Procedures
Cargo claims for loss or damage of surface transportation moves must be filed within 9 months in accordance with 49 C.F.R. 370. The statute of limitation for filing suit shall be 2 years and 1 day after issuance of written denial. For shipments having a prior or subsequent movement by air, the deadline for instituting suit shall be 1 year after the claim is denied in whole or in part. All claims should be sent to EXPRESS in writing at 2340 Stanford Court, Naples, FL 34112-4813. Service upon EXPRESS shall be immediately forwarded to any substituted carrier for claims administration by EXPRESS. No claims shall be considered and no claims shall be paid unless and until all transportation charges have been paid and customer agrees that cargo claims cannot be offset against freight charges. General principles of federal transportation law and Florida law shall apply.
Any controversy or claim arising out of or relating to these Terms or Service, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. The parties agree that place of arbitration shall be Naples, Florida and the parties shall irrevocably submit to the exclusive jurisdiction of the arbitration panel in Naples, Florida for the purpose of hearing and determining any dispute arising out of this Agreement. The number of arbitrators shall be three. Each party shall select an arbitrator within ten days of commencement of the arbitration and the two designated arbitrators shall select a third neutral arbitrator within ten days of their selection if the parties cannot agree on a third arbitrator. All decisions issued by the arbitrators shall be final and binding.
In addition to the released evaluation agreed to pursuant to these Service Terms, Customer agrees that any lower limit of liability agreed to between the Shipper and the logistics provider which retains EXPRESS shall apply and that no party shall seek to recover from EXPRESS or its carriers a greater sum than any limitation agreed to pursuant to a through bill of lading.
Where a forwarder, broker, or logistics provider tendering traffic to EXPRESS has agreed to higher limits of liability with its shipper, in tendering shipments to EXPRESS, it agrees that the maximum liability of EXPRESS and its carriers shall not exceed the released rate limitation set forth herein and that it will indemnity and hold harmless EXPRESS and its carriers from all claims, including attorney’s fees in the event that amounts greater than agreed to herein are sought.
Exceptions From Liability
Without waiver of any other provision of these Service Terms, EXPRESS and its carriers shall not be liable for any damage or loss of any nature caused by (i) acts of God, public enemy, or public danger incident to a state of war; (ii) any default of the shipper or consignee; (iii) the nature of the shipment, or any defect, characteristic or inherent vice of the shipment; (iv) violations by the shipper or consignee of any conditions of these Service Terms; (v) compliance with laws, governmental regulations, orders or requirements of any jurisdiction; or (vi) any other cause beyond the control of EXPRESS.
If any provision or provisions of these service terms shall be unenforceable, all remaining provisions shall remain, and the parties bound to them.
These service terms may be changed without notice, and the effective version of these service terms shall be as posted at www.ExpressFamily.com and shall also be available upon request. The version of these service terms in effect as of the date the shipment is tendered to EXPRESS shall be the applicable version.
Credit card policy: No returns accepted.
Air Cargo Rules and Security Protocol
Neither EXPRESS nor its network carriers are entities subject to direct regulation by the Transportation Security Administration (“TSA”). All shipments having a subsequent movement by air cargo must be tendered to EXPRESS by direct air carriers or indirect air carriers (IACs) who accept TSA responsibility for the shipment. Advance notice of air freight shipments must be given to EXPRESS to ensure compliance with applicable TSA rules.
When tendering air cargo shipments to EXPRESS, its customer certifies compliance with TSA security requirements and agrees to indemnify and hold harmless EXPRESS and its substituted carriers from any breach of such compliance. Prior to utilizing EXPRESS’s service for ex-air movements, customers are advised to contact our Air/Ground Transportation Specialist at (814) 454-4373 to obtain information concerning our security protocols.
These Service Terms set forth the entire agreement between EXPRESS and its customers and can only be modified or changed by a properly executed written agreement.
Agreement with Broker Carrier Services
These terms apply by and between, Express Logistics LLC, here forward referred to as (BROKER), a Florida based for profit organization with corporate headquarters at 2340 Stanford Court, Naples, FL 34112-4813, and licensed motor carriers providing transportation services, here forward referred to as (CARRIER).
Such agreements inform both buyer and seller of the workings of the transportation arrangements. Additionally, such an agreement protects the parties involved and helps avoid misunderstandings between them.
The following information contains the carrier’s responsibilities for the transportation of goods from the point of shipping to the point of destination, outlining a prearranged agreement as to the time and date of delivery, liability issues and costs. This agreement also states where goods are stored from the time they leave the origin point until the time they reach the destination.
- BROKER agrees to offer for shipment and CARRIER agrees to transport in its own equipment at least one (1) shipment annually and such additional quantities of freight as BROKER may tender subject to the availability of suitable equipment. CARRIER shall accept said shipments and perform the transportation services in a prompt, competent and efficient manner within the generally-accepted service standards of the trucking industry and within the restrictions, if any, set by the customers. CARRIER shall transport all accepted loads on equipment owned by it or permanently leased to CARRIER and may not broker the loans to any other carrier, or utilized substituted rail or other services. Unless otherwise specifically agreed to in writing, this Agreement shall apply to services rendered by CARRIER to BROKER.
- CARRIER has authority from the Surface Transportation Board of the Federal Highway Administration (STB), formerly the ICC, and any other applicable federal, state or local regulators, to operate as a contract carrier and will maintain this authority and insurance for the protection of cargo in the amount of $250,000.00. Minimum requirements for liability insurance are: General Aggregate $2,000,000; each occurrence $1,000,000. The amount of cargo insurance required may be increased by notification to meet the added valuation of specific shipments. Cargo insurance shall be in the form required by 49 C.F.R. 1043.2(b), and shall have no exclusions or restrictions that would not be accepted by the F.M.C.S.A. filing under statutory requirements.
- CARRIER will comply with all applicable Department of Transportation (DOT) rules and regulations as well as all other federal or state regulations pertaining in any fashion to the operations of a motor carrier. CARRIER agrees to keep in full force and affect all required insurance, including, without limitation, public liability insurance as required by the STB, and Worker’s Compensation Insurance respecting its employees, or those contractors deemed such under applicable state law. CARRIER will at all times maintain certificates/declarations evidencing such insurance coverage on file with BROKER. CARRIER agrees to hold BROKER harmless from and indemnify BROKER from any liability damages, costs, etc. accruing to BROKER whatsoever as a result of CARRIER’S breach of these provisions.
- CARRIER will maintain a DOT “satisfactory” safety rating. If this should change, CARRIER will send BROKER written notice of the change by certified mail, in five (5) working days, and BROKER has the option of canceling this Agreement immediately and without notice.
- BROKER agrees to pay CARRIER for the transportation of freight moved under this Agreement in accordance with the rates, and other service terms set forth in Appendix “I” attached hereto and made a part hereof. Modifications or additions to such may be agreed to in writing or may be made verbally to meet specific shipping schedules. Confirmation of verbally agreed rates must be made by a signed recap sent via fax, email or text to the BROKER or CARRIER. All modifications and additions to the rates made either in writing or verbally and confirmed in writing, shall be deemed addenda to, and considered an integral part of this Agreement.
- BROKER and CARRIER agree that transportation services hereunder are to be in compliance with the Code of Federal Regulations (49 C.F.R.) and any other applicable laws, by assigning motor vehicles for a continuing period of time for the exclusive use of BROKER or by providing specialized services or equipment designated to meet the distinctive needs of BROKER or the consignor. Such services shall include, but shall not be limited to, expedited shipments, consisting of mandatory, time sensitive delivery schedules.
- CARRIER shall notify BROKER immediately after having knowledge of overages, shortages, or damaged freight CARRIER handled for BROKER. CARRIER shall return overages. Disposition of damaged goods will be determined by BROKER. CARRIER agrees that for purposes of claims, BROKER shall be deemed to be the “shipper” and BROKER may properly present claims on behalf of its “Shipper” customers unless BROKER’S customer elects to present claims on its own behalf, in which instance BROKER’S customer shall be recognized as the “Shipper” for claim purposes.
- In the event of delay in the carriage of BROKER’S freight, CARRIER shall at its expense, forthwith advise BROKER, giving an estimate of the anticipated delay in delivery, and shall, as necessary, promptly take steps to reload the freight in replacement equipment or take other necessary steps to minimize delay, at CARRIER’S sole expense. CARRIER warrants that, at its sole cost and expense, it shall furnish for use in BROKER’S service sufficient vehicles suitable for the lawful carriage of cargo tendered by BROKER. CARRIER shall operate and maintain the motor and allied equipment necessary in good working condition and in compliance with all applicable laws and regulations. CARRIER, at its cost and expense, also shall provide adequately trained drivers, and provide the proper performance of the trucking services herein provided. All equipment used by CARRIER in the performance of transportation functions hereunder shall at all times be under the exclusive control of CARRIER and shall meet the requirements of Appendix II attached hereto and made a part hereof.
- CARRIER shall be liable for the full actual loss resulting from loss, damage, injury, or delay, CARRIER shall not be held responsible for shortages in the absence of evidence of tampering, breakage or lack of due care by CARRIER. In the event of loss, damage, overage of shortage, CARRIER agrees to notify BROKER of such incidents immediately, but in no case more than 24 hours after discovery, in writing, via facsimile, email or text. Unless there is a written agreement with either the BROKER or the BROKER’S customer in the bill of lading specifying released value rates or limitations of recoverable damages, BROKER shall be entitled to recover all lawfully provable damages for freight loss, damage or delay caused by CARRIER without limitation. Any agreed to limitation shall be in writing and shall be specific as to commodity and service and general incorporation or references to published sales or tariffs shall be null and void.
- Any claims will be handled in the following manner:
- A claim for loss, damage, injury or delay to cargo will be filed in writing, as provided below, with CARRIER, within 180 days of the date CARRIER notifies that the shipment is lost, damaged or delayed.
- CARRIER will, upon receipt in writing of a proper claim in the manner and form described herein above, acknowledge receipt of such claim in writing within 30 days after the date of its receipt by CARRIER, unless CARRIER will have paid or declined such claims in writing within 30 days thereof. CARRIER will indicate in its acknowledgement what, if any, additional documentary evidence or other pertinent information may be required by it to process the claim, based on CARRIER’S preliminary examination of the claim as filed. CARRIER agrees that in any case where it does not decline, pay or acknowledge receipt of claims within said 30 days that it has agreed to the validity of the claim and the amount stated therein and will thereafter pay said claim within 30 days.
- CARRIER, when it has received written claim for loss or damage, injury, or delay to property transported, will pay, decline, or make a firm compromise settlement offer in writing within 60 days after receipt of the claim by CARRIER. If CARRIER and BROKER (or its customer) does not come to final settlement within 60 days, BROKER may cancel this Agreement and/or seek to recover the damages, including attorney fees and all other expenses, through any legal, administrative or equitable remedy available. CARRIER shall not be responsible for loss damage, injury or delay resulting from acts of god, public enemy, revolution, civil disorder, or war.
- CARRIER shall be liable for the “full actual loss” resulting from loss, damage, injury or delay. “Full actual loss” means the invoice price of freight tendered to CARRIER for transportation as well as consequential damages if the CARRIER is put on notice of the possibility thereof.
- BROKER reserves the right to withhold payment of any money due for services rendered by BROKER where claim liability is disputed, until the BROKER and CARRIER come to a mutual understanding.
- BROKER (and/or its customers) shall issue a bill of lading in their own name(s) and shall be ultimately liable to the owner of the freight for full actual loss and damage to the freight transported under this Agreement while in the care of custody of the CARRIER. All claims for loss, damage and salvage shall be handled and processed in accordance with the Code of Federal Regulations (49 C.F.R.).
- The bill of lading shall be noted by the CARRIER that the shipments were transported by CARRIER, acting as a CARRIER, and that the shipment was arranged by BROKER, acting as a BROKER.
- The provisions of Paragraph 12 above notwithstanding, CARRIER shall defend and hold BROKER and its customers and their respective past, present and future officers, directors, stockholders, attorneys, agents, servants, representatives, employees, subsidiaries, affiliates, partners predecessors and successors in interest and assigns (collectively, "Affiliates") harmless, and indemnify BROKER and its Affiliates for any and all liability or claims resulting from loss or damage to any freight in the possession and/or control of CARRIER in connection with transportation under this Agreement, and any and all liability or claims for personal injury or death or property loss or damage arising out of the acts or omissions of CARRIER in providing transportation under this Agreement. CARRIER’S obligation under this Agreement shall include liability for payment of any and all costs and/or fees incurred by BROKER or its Affiliates in the adjustment or defense of any claim for cargo loss or damage and/or claim for personal injury, death or property loss or damage arising out of transportation operations and services under this Agreement. CARRIER agrees that its obligation to defend, indemnify, and hold harmless BROKER and its Affiliates from and against any and all claims and liabilities resulting from or arising out of transportation operations and services under this Agreement shall survive any termination of this Agreement. CARRIER'S obligation to defend, indemnify and hold BROKER and its Affiliates harmless under this Section 13 shall not in any manner be limited by any limitation on damages, including, limitations on the amount or type of damages, compensation or benefits payable by CARRIER and its agents under applicable worker's compensation acts, disability benefit acts or other employee benefits acts, and CARRIER hereby specifically waives any immunity it may have under such acts.
- CARRIER will bill all charges for transportation services directly to BROKER and CARRIER shall provide BROKER with a copy of the signed bill of lading and delivery receipts, all in conformity with the procedures set forth at Appendix “I”. No billing for any run will be accepted after ninety (90) days from the date of the shipment. All billings received after ninety (90) days from the date of the shipment will not be processed for payment.
- The relationship of CARRIER and BROKER shall, at all times and for all purposes, be that of an independent contractor; the relationship of partners, joint venture, general agent, and employer/ee being hereby expressly disclaimed. CARRIER agrees that it will look only to BROKER for payment. BROKER shall remain liable to CARRIER for payment of all legitimate freight charges hereunder that are submitted within 90 days from the date of the shipment; unless the BROKER has a claim or dispute regarding the terms and conditions of the CARRIER's performance and/or payment terms.
- CARRIER agrees to support and protect BROKER’S efforts in performance of this Agreement by refraining from any direct contact or solicitation of BROKER’S customers. During the term of this Agreement and for a period of two (2) years after the termination of this Agreement, CARRIER shall not, directly or indirectly solicit or do business of a transportation or warehousing nature with any of BROKER’S customers who are or were serviced by CARRIER during the twenty four (24) month period prior to termination of this Agreement, unless otherwise agreed to in writing. CARRIER hereby acknowledges that the breach of this provision will cause the BROKER irreparable injury and damage, and consequently BROKER shall be entitled to, in addition to all other remedies available to it, injunctive and equitable relief to prevent a breach of this Agreement, or any part of it, and to secure the enforcement of this Agreement. This is in addition to any other compensatory and punitive damages, the right to temporary or permanent injunction and all other legal remedies. CARRIER acknowledges and agrees that the restrictions contained in this Section 16 are reasonable and necessary to protect the legitimate business interests of the BROKER and that the time periods; territorial scope and scope of activity restrictions in this Agreement are fair, appropriate and reasonable. Solicitations prohibited under this Agreement means participation in any conduct, whether direct or indirect, the purpose of which involves transportation of shipper traffic for which the CARRIER does, or did in the past, provide transportation services for that shipper traffic under arrangements first made or procured by BROKER. Solicitation includes conduct initiated or induced by CARRIER, or accepted from or through others in any way related to or affiliated with the CARRIER. For purpose of this Section 16, CARRIER shall include all related or affiliated companies of CARRIER, and also includes all principals of CARRIER, including officers, directors, shareholders, employees, representatives or other agents acting directly or indirectly on behalf of CARRIER.
- This Agreement contains the entire agreement between the parties concerning the subject hereof, and supersedes and replaces all prior negotiations, agreements, and proposed agreements, written or oral, relating thereto. No change, termination or waiver of any of the provisions shall be binding on the parties, unless in writing signed by both parties. Obligations under this Agreement are separate and divisible and in the event that any clause is deemed unenforceable, the balance of the Agreement shall continue in full force and effect. All of the CARRIER's and BROKER'S obligations which expressly or by their nature survive this Agreement's expiration or termination will survive expiration or termination of this Agreement.
- CARRIER agrees that BROKER’S compensation for its services hereunder is confidential, and will not be disclosed. CARRIER further agrees that it will not reveal to anyone the terms of this Agreement, the pricing of transportation service, or any other details of the business conducted between CARRIER and BROKER. CARRIER agrees that billing for all transportation services hereunder will be billed only to the BROKER. All billing generated directly to a customer, and not to the BROKER as identified in this Agreement, will subject the CARRIER to a monetary penalty. This monetary penalty, paid to the BROKER, will be ten percent (10%) of the CARRIERS charges. The penalty will be paid to the BROKER as soon as the billing error is discovered. There will be no time limit for this monetary penalty and penalties may be withheld from future settlements to the CARRIER.
- This Agreement is binding upon the parties hereto, their successors and assigns, shall be construed at all times under the laws of the state of Florida (Paragraph 6 shall constitute an exception thereto, as that state law which may apply to CARRIER for those limited purposes will be on the basis of CARRIER’S principal office address, domicile, and/or scope of operations), and shall be deemed executed in Naples, Florida.
- All notices, requests, consents, claims, demands, waivers and other communications hereunder will be in writing and will be deemed to have been given (a) upon receipt when delivered by hand, (b) one (1) business day after transmission by facsimile, or other electronic system, such as e-mail (with a confirmation copy sent by commercial overnight courier) or (c) one (1) business day after being placed in the hands of a nationally recognized overnight courier for next business day delivery to the address of the other parties as set forth on page one above (or at such other address for a party as will be specified in a notice given in accordance with this Section 20). The parties agree to provide each other with their e-mail addresses pursuant to this Section 20.
- This Agreement shall be effective continuously subject to the right of either party hereto to cancel the Agreement at any time upon not less than five (5) days’ written notice of one party to the other.
- Nothing in this Agreement shall be interpreted or shall have the effect of guaranteeing to CARRIER any particular volume of business or the loads of any particular CARRIER.
- CARRIER agrees to follow customer safety requirements required by all federal, state and local laws, as well as TSA alerts when requested by BROKER. As a result, CARRIER agrees to prominently wear the following when on the customer’s property while rendering services to BROKER:
- Hard hat
- Safety glasses
- Ear plugs
- Steel-toed boots
- Sleeved shirt
- Long-legged pants (denim-like material or industrial proven fabric)
- No tobacco usage on customer property
- No usage of hand-held cell phones while operating their motor vehicle. This activity is unsafe and is in violation of the Federal Motor Carrier Safety Administration's ban on hand held cell phone use implemented January 3, 2012.
- The CARRIER further agrees that in those cases where BROKER determines that the CARRIER’S performance did not meet the customer’s requirements as regards to service levels, timeliness or other terms and conditions and there is no good justification for such failure, the following adjustments will be made to the rates and charges:
- Failure to arrive at pickup and or destination on time, as agreed to with BROKER, up to and including one (1) hour and fifty-nine (59) minutes late incurs a reduction in the total charges by twenty-five percent (25%).
- Failure to arrive at pickup and or destination on time, as agreed to with BROKER, between two (2) hours and three (3) hours and fifty-nine (59) minutes late incurs a reduction in the total charges by fifty percent (50%).
- Failure to arrive at pickup and or destination on time, as agreed to with BROKER, over four (4) hours incurs a reduction in total charges by one hundred percent (100%).
- In all cases where the customer refuses to pay the BROKER due to a late delivery by the CARRIER, the CARRIER’S pay will be reduced by one hundred percent (100%).
- In all cases where the customer refuses to pay the BROKER due to a safety violation by the CARRIER, the CARRIER’S pay will be reduced by one hundred percent (100%).
- If, as a result of CARRIER’S failure, a critical situation is created which would cause a potential shut down, alternative transportation may be arranged by BROKER and charged back to CARRIER. Additional costs charged by the customer relating to a late shipment may also be charged back to the CARRIER.
- CARRIER shall neither have nor claim any lien rights on or against any property transported under this Agreement. However, should a consignor or consignee notify BROKER of a claim for loss or damage to the property transported by CARRIER under this agreement, CARRIER agrees that BROKER and consignor/consignee shall have the right to set-off an amount from any freight charge payments due CARRIER.
- Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. The parties agree that place of arbitration shall be Naples, Florida and the parties shall irrevocably submit to the exclusive jurisdiction of the arbitration panel in Naples, Florida for the purpose of hearing and determining any dispute arising out of this Agreement. The number of arbitrators shall be three. Each party shall select an arbitrator within ten days of commencement of the arbitration and the two designated arbitrators shall select a third neutral arbitrator within ten days of their selection if the parties cannot agree on a third arbitrator. All decisions issued by the arbitrators shall be final and binding.
- In the event that after movement and delivery of freight, the ultimate obligor for payment of freight charges and fees become bankrupt or for any reason defaults on its obligation to pay freight charges and fees which BROKER had already paid to CARRIER, CARRIER agrees that all its right, title, and interest in such charges and fees shall be, and hereby are, transferred and assigned to BROKER for the purposes of collection and recovery from the responsible party(s).
- CARRIER may not assign its rights or obligations under this Agreement without the express consent of BROKER.
- The above reductions in pay will not be applicable for delays that are beyond the control of the CARRIER (i.e. Traffic, Natural Disasters, Severe Weather, etc.) The CARRIER must communicate this delay to the BROKER immediately upon knowledge of the delay. If the uncontrollable delay is not communicated by the CARRIER to the BROKER within ½ hour of the actual delay, the reduction in pay will continue to be in effect.
- The CARRIER, in accepting shipments from BROKER, represents and warrants that it will comply with our service terms as posted on our website at www.expressfamily.com.
Additionally, the CARRIER further agrees to:
If the CARRIER fails to meet such customer requirements, and there being no good justification shown for failure with contract conformity, the CARRIER’S pay may be reduced up to one hundred percent (100%).
Appendix I – Rates and Other Terms
- BROKER will contact the CARRIER with pickup location and response time needed. The CARRIER will acknowledge availability of the equipment and approve the response time needed within fifteen (15) MINUTES.
- Rates and charges for traffic moved under this Agreement shall be as agreed between the parties hereto in writing and are to be continued in a Broker Carrier Rate Agreement or memorandum with rates/charges and all pertinent load information prepared and issued by BROKER, acknowledged and accepted with authorized signature by CARRIER, and immediately returned to BROKER via fax or email for confirmation of terms.
- CARRIER will update BROKER with location of unit every two (2) hours on any job with a running time of less than six (6) hours. CARRIER will update BROKER with location of unit every three (3) hours on any job with running time of more than six (6) hours. CARRIER will ensure use of satellites, nationwide pagers and/or cellular telephones on any and all runs contracted to BROKER. The CARRIER must have real-time communication access to its vehicle at any time during the run.
- Normal operating procedures for expedited freight will apply; these include, but are not limited to, notification of any and all en route delays and or problems, delays in loading or unloading and damage to the freight.
- CARRIER will report to BROKER with the delivery information including time arrived; time unloaded and the receiving person’s name who signed for the shipment within one (1) hour of the delivery. The Bill of Lading/Proof of Delivery (BOL) record provided by the BROKER or customer will be completed accurately including the reporting of the BROKER work order ID and all associated pickup/delivery information and emailed or faxed to the BROKER within two (2) business days of the completed transaction for billing/customer purposes. In exchange, with terms met, the CARRIER will be paid within thirty to forty-five (30 – 45) business days. Penalties that “may” apply for failure to meet these administrative guidelines are:
- Carrier agrees to use correct vehicle type as well as dedicate entire vehicle to this shipment, tender shipment as BROKER, properly secure freight, complete BOL with BROKER work order ID, provide vehicle tracking, time on-site, time loaded, time at destination, time unloaded, printed name, signature and e-mail or fax all documentation to BROKER immediately upon delivery. Failure to procure the above incurs a ten percent (10%) reduction in fee.
- If BOL is not received within 48 hours of delivery, pay will reduce $1 per day for the first 5 days.
- If BOL is returned after 5 days, reduction will increase to $2 per day for the first 10 days.
- If BOL is returned after 10 days, reduction will increase to $3 per day for every day late.
- CARRIER will send BROKER “original” delivery documentation, complete with BROKER work order ID, and pickup and delivery information within thirty (30) days.
- CARRIER will have twenty-four (24) hour dispatch operations or will furnish BROKER with home numbers and/or cell numbers for contact after-hours and weekends.
- CARRIER will furnish to and update as necessary Operating Authorities and Certificates of Insurance to BROKER.
- All mileage for billing will be computed using MS Map Point shortest distance zip-to-zip miles. All mileage will be paid one way only. All runs from Michigan to Western New York, or vice versa, will operate through the country of Canada unless otherwise specified.
- Freight held overnight and attempts pay $75.00. Multiple stops pay $25.00. There is no charge on detention time up to the first 4 hours on all vehicle types. However, if the detention time is greater than 4 hours, it is calculated based on 15 minute increments. Tractor Trailer vehicles pay $30.00 per hour. Straight Truck vehicles pay $25.00 per hour. Extended Van and Cargo Van vehicles pay $20.00 per hour. The maximum detention charge paid will be $200.00. Vehicles required to return to shipper are paid per loaded mile at prior agreed rate per mile for this shipment. When specified, a waiting time form must be completed and turned in with the BOL for full compensation.
- All dry runs will be billed at the minimum charge only. No billings will be accepted for any load offered and accepted and then cancelled within thirty (30) minutes of acceptance.
- The TRAILER SAFETY REQUIREMENTS (Appendix II attached) must be adhered to and followed at all times for any and all shipments handled under this agreement. All funds must be paid in U.S. currency.
- Shipments that are verbally awarded will constitute all service terms set forth in this contract. All shipments require a BROKER Carrier Rate Agreement. It is expected that CARRIER dispatches vehicle upon verbal verification whereby a formal rate agreement will follow..
Appendix II – Trailer Safety Requirements for All Carriers
This is to advise that the following safety-related actions must be implemented. These actions are to provide the utmost injury-free environment to all personnel involved in the transporting, loading and unloading of CARRIER equipment involved with the freight. Safety of all of our personnel is our highest mandate and your immediate and cooperative assistance is necessary.
- Trailers at the end of the tenth (10th) year from date of manufacture can no longer be used in service. Trailers with an original date over ten (10) years listed on the manufacture’s ID plate located on the left hand side of the trailer, lower front, or missing plates will be rejected for loading or unloading.
- Fiberglass Reinforced Plywood trailers will no longer be acceptable. It is expected, of course, that the only safe and adequate equipment will be provided during that time period as stated in our Broker/Partner Carrier Agreement.
- All semi-trailers must have a minimum of 20,000 pounds dynamic floor rating maintained over a ten (10) year period.
- Repairs must comply with the truck maintenance council standards of the American Trucking Association.
- Inspections must comply with the Federal Motor Carrier Safety Regulations (49 C.F.R.).
- Driver safety training must comply with the Federal Motor Carrier Safety Regulations.
- Truck trailer floor ratings must comply with the individual requirement of the shipper’s facilities.
- Trailers are equipped with ICC Bar.
- Trailers will display the most current FHWA inspection sticker, which is no older than 6 months.
- Sliding axles on trailers are to be fully functioning and moved to the rearward position of the trailer before tendering for pickup of delivery at facilities.
- All freight must be properly secured to eliminate any movement during transit.
- All trailer equipment must be a minimum of 48 foot, air ride equipment. Tractor-Trailer equipment furnished for any movement of Straight Truck shipments need not comply with the above requirements.