Terms of Shipping

Terms of shipping
Master transportation service agreement

RECITALS

1. Carrier, as an independent contractor, desires to furnish transportation and transportation-related services (collectively, "Transportation Services") to Shipper and is duly registered as a carrier in interstate commerce with the Federal Motor Carrier Safety Administration ("FMCSA
2. Subject to the terms and conditions of this Agreement, Shipper desires to obtain Transportation Services from Carrier.
3. The Transportation Services provided herein are intended by the parties to be contract carriage as defined in 49 U.S.C. § 13102(4) and §14101(b). To the extent that any right or remedy provided in this Agreement conflicts or is otherwise inconsistent with the rights and remedies provided by the Interstate Commerce Commission Termination Act, as amended, Shipper and Carrier waive all such rights and remedies.

AGREEMENT

In consideration of the facts set forth in the Recitals and the mutual promises herein, Shipper and Carrier hereby agree as follows:

1. Applicability

Transportation Services provided pursuant to this Agreement shall be performed between origin and destination points and/or places as more specifically named by the Shipper in a Bill of Lading and Delivery Authorization (a “BOL”). Additional services may be included from time to time upon amendment of this Agreement in the manner designated herein.

2. Appendices

The following appendices attached as part of each Addendum to this Agreement are hereby incorporated by reference into, and expressly made an integral part of, this Agreement:
Appendix A: - Rate Schedules
Appendix B: - Rules and Accessorial Charges
Appendix C: - Fuel Surcharge Policy
 
From time to time after the date of this Agreement, Shipper and Carrier may, by mutual agreement, amend the above appendices or add additional appendices to this Agreement, To be effective, any such appendix must be in writing, signed by both parties and dated. Appendices shall remain in effect until superseded by written agreement of the parties, termination or expiration of the specific appendix, or termination of this Agreement, whichever occurs first. In the event that any term or provision of any appendix is inconsistent with those contained in the remainder of this Agreement, the term or provision in the appendix shall govern, unless terminated. All appendices will terminate upon termination of this Agreement.

3. Term of Agreement

The term of this Agreement shall commence on the Effective Date and shall continue thereafter.  Either party may terminate this Agreement, upon ninety (90) days prior written notice to the other party.  If Carrier fails to perform its obligations under this Agreement in the absence of force majeure condition as defined in Section 19 of this Agreement, and Carrier is notified of such failure to preform and fails to cure such failure promptly, then Shipper may immediately terminate this Agreement.

4. Transportation Services

1. Non-Exclusive Services. This Agreement does not grant Carrier an exclusive right to perform the transportation and related services for Shipper, and Carrier acknowledges and agrees there is no guarantee of any minimum amount or any specific amount of shipments, tonnage, or revenue provided to Carrier.
2. Performance. Carrier shall perform all Transportation Services in accordance with the terms and conditions of this Agreement including the applicable Appendices and BOL. If Carrier is itself unable to fulfill any delivery obligations, then Carrier must use an alternate means to fulfill its obligations, honor the rate and service requirements specified in this Agreement including the Appendices, and be responsible for any charges in excess of those set forth in the Appendices.
3. On-Time Deliveries. Carrier recognizes that Shipper requires shipments to be delivered on-time and claim free to maintain the continuity of its and its customer's operations. Carrier shall provide a minimum of 98% carrier controlled on-time delivery service.

5. Carrier's Obligations

1. Compliance with Laws, Rules and Regulations. Carrier represents, warrants, and covenants to Shipper, and Shipper enters into this Agreement in reliance upon such representation, warranty, and covenant that Carrier is and during the Term shall be (i) a duly registered carrier in interstate commerce with the FMCSA; (ii) duly registered in intrastate commerce with all appropriate state and foreign regulatory agencies and (iii) in compliance with, and, at its sole expense, shall continue to comply with, all of the provisions of the Interstate Commerce Act, related laws, rules and regulations of the FMCSA, and all provisions of applicable local, state, and federal laws, rules, and regulations to the extent they apply to Carrier's operations.
2. Compliance with FSMA; Delegation and Acceptance Of Duties.  Carrier shall comply the Food Safety and Modernization Act (the “FSMA”) and  the Sanitary Transportation of Food Rule (the “STF Rule”) adopted by the U. S. Food and Drug Administration pursuant to the FSMA, as the same may be amended. Carrier accepts and warrants compliance with those delegable duties of the STF Rule as set forth in the Uniform Food Safety Transportation Protocol (the “Protocol”), a copy of which can be found at https://www.ufstp.com/ and incorporated herein. Further, Carrier shall become a signatory to the Protocol and shall remain such during the term of this Agreement.
   
   Shipper’s Special Handling Requirements. Except as may specifically be set forth in an applicable Bill of Lading, for temperature controlled shipments, Carrier shall pre-cool the refrigerated compartments of its equipment to no more than +10 degrees Fahrenheit prior to loading Shipper’s goods, and shall maintain such compartments at an operating temperature between -10 and +10 degrees Fahrenheit at all times during shipment.  In the event, Carrier is asked to haul a refrigerated shipment, Carrier shall pre-cool the refrigerated compartments of its equipment to the temperature that is requested on the tender provided by the Shipper prior to loading Shipper’s goods, and shall maintain such compartments at an operating temperature provider on the tender at all times during shipment.
3. Receipts and Bills of Lading
   1. Bill of Lading or Receipt. Each shipment received by Carrier shall be evidenced by Shipper’s standard BOL or receipt in a form agreed upon by the parties, signed by Carrier, and showing the kind, quantity and condition of goods received by Carrier. Such bill of lading or receipt shall be conclusive evidence of receipt of such goods by Carrier in apparent good order and condition unless such goods are not readily observable (contents and condition of contents of packages unknown) or as may be otherwise noted on the face of such receipt. If contents of packages are not readily observable and the exterior packaging is in good condition, the contents will be assumed to be also in undamaged condition. The terms, conditions, and provisions, of such bill of lading or receipt shall be subject and subordinate to the terms, conditions, and provisions of this Agreement and in the event of any conflict, the terms, conditions, and provisions of this Agreement shall control.
   2. Through Bill of Lading. All BOLs and other bills of lading shall be "through bills of lading" to ultimate destination and Carrier shall be liable to Shipper for loss, damage or delay in accordance with the terms of this Agreement regardless of any separate agreements entered into by Carrier with connecting carriers, subcontractors, cartage agents, or third parties.
   3. Delivery Receipt. Carrier shall obtain an acknowledgement of delivery for all shipments by notation on the bill of lading or a delivery receipt, signed and dated by the consignee. To the extent that it is not possible to inspect Shipper’s freight or complete a Delivery receipt, the consignee has two (2) business days to notify Carrier of physical damage to the freight. The Delivery Receipt must therefore include Carrier’s telephone and facsimile numbers and email address for the consignee to report subject-to-inspection or hidden damage to Carrier. Upon Shipper's request, Carrier agrees to provide copies of same to Shipper, or its designee, in sufficient detail to substantiate billing for the services provided. Carrier shall retain such records for five (5) years after delivery of the involved shipments or for such greater period of time as may be required by federal or state laws, rules, or regulations.
   4. Period of Carrier Responsibility. Carrier's duties and responsibilities under this Agreement shall commence when Carrier takes possession and control of shipper's goods or upon execution of such bill of lading or receipt by Carrier, whichever occurs first, and shall end when consignee signs the bill of lading or delivery receipt and Carrier delivers shipper's goods.
   5. Conflict between Contract and Bill of Lading. TO THE EXTENT ANY GENERAL TERM OR CONDITION OF A BILL OF LADING, RECEIPT, OR SHIPPING DOCUMENT CONFLICTS IN ANY WAY WITH ANY TERM OR CONDITION OF THIS AGREEMENT, THIS AGREEMENT SHALL GOVERN.
4. Disclosure; Freight Bills. Carrier agrees to comply with the provisions of 49 U.S.C. § 13708 requiring carriers to disclose the actual rates, charges or allowances on freight bills, prohibiting false or misleading information on documents.
5. Motor Vehicles, Equipment, and Drivers. At Carrier's sole expense, Carrier shall provide all facilities, equipment, and properly trained and licensed drivers and other personnel necessary to carry out the Transportation Services. Motor vehicles and other equipment necessary to perform the Transportation Services will be maintained in clean, good working condition, free of defects and operated in a safe, efficient, and economical manner. Carrier's drivers and other personnel will conduct themselves in a professional manner at all times.
   1. Lawful Operation. Carrier shall, at its sole cost and expense, operate its motor vehicles and other equipment in a proper and lawful manner and to maintain the equipment in good, safe and lawful operating condition at all times in compliance with all federal, state, and local statutes, laws, ordinances, rules, and regulations. Shipper shall have the right to immediately terminate this Agreement without notice if Carrier's equipment is not so operated or maintained.
   2. Qualified Personnel. Carrier shall, at its sole cost and expense, employ in the operation of such vehicles and equipment fully qualified, trained, insured, and licensed personnel, who shall procure and maintain such licenses and permits as are required by local, state, federal, or foreign country authorities with respect to such Transportation Services and shall comply with the laws and regulations applicable thereto.
   3. Exclusive Control. Carrier shall have sole and exclusive control and direction over the manner in which Carrier and its agents perform the Transportation Services provided for hereunder, and Carrier shall utilize such individuals as it may deem necessary in connection therewith, it being understood and agreed that such individuals shall be subject to discharge, discipline, and control solely and exclusively by Carrier. Carrier assumes full responsibility for the acts and omissions of its employees and agents and, when applicable, shall have exclusive liability for the payment of local, state, federal and foreign payroll taxes or contributions or taxes for unemployment insurance, workers' compensation, old age pensions or other social security and related protection, and agrees to comply with all applicable rules and regulations pertaining thereto. If under the applicable state unemployment compensation law, Carrier has the right to elect whether or not to come under and be bound by the terms of such law, Carrier shall either self-insure or promptly register under said law. Shipper will not request, and Carrier will not perform, Transportation Services, which will require Carrier, its drivers or other personnel to violate speed, safety or transportation laws, or any other applicable laws, rules or regulations.
   4. Clean Equipment. Carrier's equipment offered to Shipper for loading of the goods to be transported is to be clean, odor-free, dry, leak proof and free of contamination and infestation. Said equipment shall be subject to inspection for suitability and cleanliness by Shipper. The cleanliness or suitability of equipment must meet Shipper's standards of acceptability for the specific products to be loaded and transported.
6. Hazardous and Non-Hazardous Waste. Carrier hereby covenants and agrees that no trailer or other vehicle which transports goods for Shipper hereunder shall ever have been used to transport refuse, garbage, trash or solid or liquid waste of any kind whatsoever, whether hazardous or non-hazardous. Notwithstanding anything to the contrary herein, in the event that Carrier breaches the terms of this Subsection, Shipper shall have the right to immediately terminate this Agreement.
7. Delay; Accidents. Carrier shall notify Shipper, whether as shipper, consignee or third party, immediately by telephone, of the occurrence of any accidents, spills, theft, hijacking, or other events, which impair the safe and prompt delivery of the goods in its control.
8. Rejected or Returned Shipments. If a shipment is rejected by the consignee at the destination, the shipment will be returned to the point of origin or be re-consigned. The applicable rate for the return of the shipment will be the same as the inbound rate, and will be paid by the original shipper, unless the rejection was due to damage to product caused by Carrier in which case Carrier is responsible for the re-consigned or returned cost of the shipment.
9. Carrier Safety Rating. Carrier shall not have an “unsatisfactory” or “conditional” safety rating from the U.S. Department of Transportation.  If Carrier at any time receives a rating of “conditional” or “unsatisfactory,” Carrier shall immediately (in no event more than forty-eight (48) hours after Carrier’s receipt thereof) notify Shipper in writing of such change.  Carrier agrees not to accept a shipment if that shipment would require Carrier or any of its agents, employees, or subcontractors to exceed or violate any speed or safety laws or related regulations. 

6. Compensation and Payment

1. Rates.
   1. Applicable Rates. Shipper agrees to pay to Carrier the rates set forth in Appendix A, on an “on-call” basis attached to this Agreement as full and complete compensation for the Transportation Services to be provided under this Agreement.  Said rates are intended to apply to all goods shipped or received by Shipper. In addition, Shipper shall pay Carrier the applicable fuel surcharge in accordance with Appendix C and Shipper's established policies. Carrier represents and warrants that there are no other applicable rates or charges except those established in Appendices A, C, and C.
   2. Spot Quotes.  From time to time Carrier and Shipper may enter into an agreement which shall contain applicable rates and charges (including accessorials and fuel) in the form of a spot quote for specific shipment(s).  Spot quotes will be considered an addendum to this Agreement.  Spot quotes shall be in writing and mutually agreed to by individuals authorized to do so on behalf of the corporation or organization they represent.
   3. Rate Adjustments. Rates set forth on Appendix A shall remain in effect until changed by the parties in writing. in accordance with Section 2 to meet Shipper's changing shipping schedules and needs.  Carrier will provide a minimum of 45 days’ notice on rate changes that are requested.
   4. Prepaid, Collect and Third Party Billing. This Agreement shall govern shipments tendered on a freight "prepaid", "collect" or "bill to third party" basis, unless otherwise agreed upon in writing.
2. Rules; Tariffs.
   1. Applicable Rules. Shipments tendered to Carrier pursuant to this Agreement shall be subject to the rules set forth in Appendix B to this Agreement.
   2. Non-Applicability of Tariffs. Tariffs, service guides, or similar publications maintained by Carrier are not applicable to Transportation Services provided pursuant to this Agreement.
   3. Mileages. Mileages will be determined and mutually agreed to by the Parties through the use of the currently effective Bing truck map.
   4. Non-Alternation. Except as provided in Subsection 7(i) of this Agreement, the rules, rates and charges in this Agreement will apply to the exclusion of all other rules, rates or charges published between the same points, and the same routes, in Shipper tariffs or publications, if any.
   5. Accessorial Charges. Shipper's Schedule of Charges is hereby incorporated into and made an integral part of this Agreement as Appendix B. All provisions of such Addendum apply provided, however, that in the event of a conflict with another Appendix, such other Appendix will control with respect to its routes, rates and charges only. Notwithstanding the requirement in Section 22  that amendments be in writing and signed by both parties, Shipper may make revisions to the Schedule of Charges Appendix and any revision to such the such Appendix will also become a part of this Agreement, provided (i) Shipper provides Carrier with a copy of such revision, and (ii) Carrier does not object to such revision within thirty (30) days of receipt thereof.
3. Payment.
   1. Procedure. Carrier shall invoice Shipper or its designee promptly following delivery of a shipment but in no event later than ninety (90) days after shipment; Shipper or its designee require submittal of a bill of lading and/or proof of delivery with invoices or receipts for accessorial services as a condition to payment. Carrier agrees that no penalties, loss of discount or interest will be assessed to Shipper for past due amounts. Time for payment will commence upon receipt by Shipper of a correct and complete invoice for Transportation Services rendered, and any cash discount privileges will be extended until such time as payment is due hereunder. Unless otherwise expressly agreed to in writing, the payment terms will be net thirty (30) days.
   2. Time Limits; Freight Bill Submission. Invoices which are submitted for payment for Transportation Services performed more than twelve (12) months (determined by shipping date) prior to receipt of the invoice by Shipper will not be accepted for payment, except that clerical errors, mathematical errors, extension errors and duplicate payments may be corrected at any time.
3. Right to Set Off Claims. Shipper shall have the right to set off claims for loss, damage, or delay, and claims for overcharge or duplicate payment, against freight or other charges owed to Carrier. Carrier shall have no lien for the retention of freight to secure payment of freight charges.
4. Time Limits; Overcharge and Undercharge Claims. Each party retains the right for eighteen (18) months following payment to identify any erroneous under- or over-payment of the individual rates identified in this Agreement, and to file a claim accordingly. Carrier shall process all overcharges and duplicate payments in accordance with 49 CFR Part 378.
5. Time Limits; Suits for Freight Charges. Carrier must bring a civil action to recover charges for Transportation Services provided by Carrier within two (2) years after the date of shipment.

7. Liability for Loss, Damage, or Delay

1. Common Carrier Liability. Carrier agrees that, in the transportation of all goods hereunder, it assumes the liability of a common carrier for full actual loss, subject to the provisions of 49 U.S.C. § 14706, and 49 CFR Part 370 (claim regulations), such liability to exist during the Period of Carrier Responsibility specified in Subsection 5(b)(iv) of this Agreement. Freight which has been tendered to Carrier intact and released by Carrier in a damaged condition shall conclusively be presumed to have been damaged by Carrier unless Carrier can establish otherwise by clear and convincing evidence.
2. Additional Damages. Carrier shall also be liable for Shipper's reasonable expenses incurred in mitigation of damage, including inspection, sorting, segregating, refurbishing, repackaging and re-shipping, plus Shipper's administrative expenses incurred in connection with the processing of claims against Carrier, plus any and all additional freight charges or expenses incurred to move the damaged product to or from the original destination.
3. Non-Applicability of Tariffs. IRRESPECTIVE OF ANY PROVISIONS IN CARRIER'S TARIFFS, SERVICE GUIDES, OR SIMILAR PUBLICATIONS, CARRIER'S LIABILITY FOR LOSS, DAMAGE OR DELAY SHALL BE DETERMINED SOLELY BY THE TERMS OF THIS AGREEMENT. ANY ATTEMPTS TO LIMIT CARRIER'S LIABILITY OR MODIFY THE TERMS AND CONDITIONS OF THIS AGREEMENT OR ANY APPENDIX BY TARIFF OR OTHER PROVISIONS INCORPORATED BY REFERENCE IN A BILL OF LADING OR SHIPPING DOCUMENT SHALL BE NULL AND VOID.
4. Replacement Shipments. Carrier acknowledges that Shipper may utilize other carriers to facilitate the movement of delayed shipments, or to ship replacement goods. If Carrier fails to make timely delivery of any shipment, Carrier shall be responsible for necessary costs, charges, fees and expenses resulting from such delay.
5. Return of Damaged Shipments. Carrier shall deliver all damaged shipments at its expense in accordance with Shipper's instructions.
6. Claims; Filing Requirements. Claims shall be made in writing, addressed to the Carrier at the address in Section 16.
7. Time Limits; Claims for Loss or Damage. The time limit within which Shipper must file a claim against Carrier shall be nine (9) months from the date of delivery or within nine (9) months of a reasonable time for delivery if a complete loss. All claims shall be paid, settled or disallowed by Carrier within forty-five (45) days of filing. Dis-allowances shall state a lawful reason for declining to accept responsibility for the claim, and shall be stated by the Carrier, not its insurer. A claim shall not be invalidated when Shipper is unable to determine the amount of the claim within nine (9) months. Claims for uncertain amounts shall not be disallowed for that reason alone.
8. Time Limits; Suits for Loss or Damage. The time limit within which Shipper must institute suit against Carrier to recover on a claim shall be two (2) years and a day from the date Shipper receives a written disallowance from Carrier.
9. Suits; Expenses and Attorneys' Fees. If Shipper is successful in recovering a claim against Carrier in a court of law or arbitration proceeding, Shipper shall be entitled to recover all of its expenses incurred in collecting its claim, including reasonable attorneys' fees, costs and interest from the date of delivery or scheduled delivery of the shipment. Carrier shall be entitled to recover said expenses only upon a finding by a court or arbitrator that claimant in bad faith instituted the suit. Notwithstanding the foregoing, if applicable state law imposes an obligation of mutuality, each party shall bear its own attorneys' fees and costs.
10. Concealed Damage Claims. Carrier shall treat damage reported to Carrier within fifteen (15) days of the date of delivery as though an exception notation had been made on the delivery receipt at the time of delivery.
11. Damaged or Refused Shipments; Salvage. Carrier shall not dispose of damaged or rejected goods without the prior written consent of Shipper, and Carrier hereby waives all right of salvage or resale. Shipper may determine, within its sole discretion, and not subject to a reasonableness standard, whether the goods may be salvaged, and if salvageable, the value of such salvage. Any salvage receipts shall be credited against Shipper's claim against Carrier.
12. Shipper Load and Count. If shipments are loaded and counted by the shipper ("SL&C"), Carrier will count the goods at the first break-bulk point and report damages, overages and shortages via phone to Shipper, confirmed in writing, or Carrier will be liable for all such damages and shortages.
13. Willful Misconduct. Willful misconduct, negligence, fundamental material breach or conversion on the part of Carrier, its employees, officers, directors or agents shall vitiate any and all liability limitations contained in this Agreement.
14. Survival of Provisions. The provisions of this Section 7 shall survive cancellation, termination, or expiration of this Agreement.

8. Contract Carriage

SHIPPER AND CARRIER INTEND AND EXPRESSLY AGREE THIS AGREEMENT IS TO BE A CONTRACT AUTHORIZED UNDER 49 U.S.C. §13102(4) AND § 14101(B) TO PROVIDE SPECIFIED SERVICES UNDER SPECIFIED RATES AND CONDITIONS, AND HEREBY EXPRESSLY WAIVE ANY AND ALL RIGHTS AND REMEDIES UNDER THE MOTOR CARRIER PROVISIONS OF THE INTERSTATE COMMERCE ACT, 40 UNITED STATES CODE §13101 ET SEQ., FOR THE TRANSPORTATION SERVICES PROVIDED HEREUNDER EXCEPT AS MAY BE SPECIFICALLY INCORPORATED HEREIN BY REFERENCE. The parties hereto intend that the contractual arrangement be continuous in nature until such time as this Agreement terminates or is terminated by one or both of the parties. Any use of bills of lading, or other freight documents referring to "common carriers" and/or "tariffs", shall not alter the contractual relationship created hereunder between the parties.

9. Insurance

1. Liability, Workers Compensation, Employers Liability and Cargo. Carrier indemnify, defend, and hold harmless Shipper for any claim for insurance premium or any claim by any employee of the Carrier for injuries sustained in the ordinary course of business, including, but not limited to, drivers, lumpers, helpers, agents or sub-contractors of Carrier. Carrier shall obtain and maintain consistent with the provisions of this contract, at its sole expense, the following types of insurance coverage's, to remain in force during the term of this contract, with minimum limits as set forth below.
2. Commercial General Liability. Covering liability arising from premises, operations, independent contractors, products-completed operations, personal and advertising injury, and blanket contractual liability – (US) $1,000,000 each occurrence.
3. Business Automobile Liability. Covering all owned, hired, and non-owned vehicles – (US) $1,000,000 each occurrence, including all applicable statutory coverages.
4. Workers Compensation. Statutory limits for all states of operation (U.S. only). Carrier will obtain workers' compensation coverage for all independent contractors to protect against "shoot through" liability.
5. Employers Liability. (US) $1,000,000 each employee for bodily injury by accident and – (US) $1,000,000 each employee for bodily injury by disease.
6. Blanket Crime. Coverage including employee dishonesty for acts against or involving Shipper property – (US) $250,000 per occurrence (or Cargo Insurance without an exclusion for Crime or a bond as provided in Section 10(b) below).
7. Cargo Insurance. Motor Truck Cargo Legal Liability on an "all risk" basis including loading and unloading and interim storage. Limit will be equal at least to the highest value shipped on any one conveyance (or in storage) and in any event not less than (US) $100,000 each claim.
8. Cargo Insurance; Employee Infidelity. Carrier's cargo insurance policies shall not exclude coverage for infidelity, fraud, dishonesty or criminal acts of Carrier's employees, agents, officers or directors. If said policy contains such exclusions, Carrier shall obtain and furnish a surety bond providing such coverage to the satisfaction of Shipper or by maintaining Crime Insurance with limits of $250,000.
9. Additional Insured on Liability Policies. Shipper shall be an additional insured on the Commercial General Liability and Business Automobile Liability policies.
10. Loss Payee on Cargo Policy. Shipper shall be a "loss payee" on the cargo liability policy.
11. Waiver of Subrogation and Primary Policies. Carrier's insurance policies shall provide for a waiver of subrogation and shall be written as primary policies not contributing with or in excess of coverage that Shipper may carry.
12. Certificates of Insurance. Carrier shall provide certificates of insurance and workers' compensation declaration forms evidencing the insurance coverage required under this Agreement including additional insured on the Commercial General Liability and Business Automobile Liability policies and loss payee on the Cargo Policy. The certificates of insurance shall contain a clause providing that the insurer will not cancel or change coverage of the insurance without first giving Shipper thirty (30) days' prior written notice. Such certificates shall be in a form acceptable to and underwritten by an insurance company reasonably satisfactory to Shipper and with an A.M. Best Company rating of B+ or above.
13. Self-Insurance. If Carrier is self-insured, it shall provide evidence of such, including proof of acceptance of self-insurance status by the FMCSA or other governing agency.
14. No Representation as to Adequacy. It is expressly understood that Shipper does not represent that the types or minimum limits of the insurance set forth herein are adequate to protect the Carrier's interests and the purchase of appropriate insurance coverage's or the furnishing of a certificate of insurance shall not release Carrier from its respective obligations or liabilities under this agreement.

10. Indemnity

Carrier shall indemnify, defend and hold harmless Shipper, its subsidiaries and affiliates, and its and their shareholders, directors, officers, employees, agents and representatives, from any and all claims, demands, actions, damages, liabilities, costs and expenses, including reasonable attorneys' fees and expenses, for the death or personal injury of individuals, and/or the damage, loss or destruction of real or personal property of individuals caused by the acts or omissions of Carrier, its employees, agents, affiliates, and contractors; except those claims, demands, actions, damages, liabilities, costs and expenses arising out of the sole negligence or intentional acts of Shipper and/or its subsidiaries and affiliates. Carrier's indemnification under this Agreement includes any and all costs and expenses incurred in connection with the enforcement of this Section 10. The provisions of this Section 10 shall survive termination or expiration of this Agreement.

11. Non-Exclusive Agreement

It is understood and agreed between the parties hereto that this is a non-exclusive Agreement and that Carrier shall be free to accept freight for transportation from shippers other than Shipper and that Shipper shall be free to tender freight for transportation to carriers other than Carrier.

12. No Agency

Carrier shall perform the Transportation Services hereunder as an independent contractor. Carrier represents that it is entirely independent and that it is not, and will not become as a result of entering into this Agreement, substantially economically dependent upon Shipper and there is no functional integration of Shipper's and the Carrier's respective operations. Nothing in this Agreement makes either party the agent or legal representative of the other for any purpose whatsoever, nor grants either party any authority to assume or create any obligation on behalf of or in the name of the other party.

13. Alternative Dispute Resolution

If the parties agree in writing to arbitrate, disputes shall be submitted to the American Arbitration Association for arbitration under that organization's Commercial Arbitration Rules and Procedures. If so submitted to arbitration, no court action can be taken by either party prior to conclusion of the arbitration proceeding (other than the filing of suit to protect against the running of any period of limitations set forth in this Agreement or applicable statute), and the Arbitrator's decision shall be final and binding and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.

14. Taxes

Carrier shall be solely responsible for, and assumes all responsibility for, the payment of all liabilities or claims for taxes that any taxing authority (including any of its political subdivisions) claiming jurisdiction over Carrier, this Agreement, or the area of operations, may assess or levy against Carrier relating to its services.

15. Assignment

Shipper may assign its rights and obligations under this Agreement to any controlled affiliate without Carrier's prior written consent. Carrier may not assign or delegate its rights or obligations under this Agreement without Shipper's prior written consent, and any attempted assignment or delegation in violation of this provision shall be null and void and confer no rights on third parties.

16. Notices

Except as otherwise provided in this Agreement, all required notices shall be in writing and will be considered given when delivered personally, express mail courier, or registered or certified mail, return receipt requested, addressed as follows (or any other address that is specified in writing by either party):
 

Shipper:	National Food Group, Inc. Attn. Heather Adam 46820 Magellan Drive Suite A Novi, Michigan 48377-2454 Email: hadam@nationalfoodgroup.com
Carrier:	Main Carrier contact on file with National Food Group

17. Applicable Law ; Venue

This Agreement shall be construed and enforced according to the internal laws of the State of Michigan, applicable to contracts executed in and to be performed entirely within that state.  Any lawsuit arising directly or indirectly out of this Agreement shall be exclusively litigated in the Circuit Court for Oakland County, Michigan, or if original jurisdiction can be established, in the United States District Court for the Eastern District of Michigan.

18. Confidentiality

As part of the business relationship between Carrier and Shipper, Carrier may be in or come into possession of information or data, which constitute trade secrets, know-how, confidential information or are otherwise considered secret by Shipper (hereinafter "Information"). In consideration of the receipt of such Information and potential business, Carrier agrees to maintain such Information in the utmost of confidence; to use such Information solely in connection with the provision of Transportation Services and not in any manner harmful to Shipper; and to take all measures necessary to protect such Information. Each party will keep confidential, in accordance with its procedures for maintaining the confidence of other information of similar kind, the terms of this Agreement, including the appendices hereto, and not disclose such Information to non-affiliated third parties (excluding freight bill auditors, freight bill payers, and consultants) except as required by law, rule or regulation.

19. Force Majeure

Any delay or failure by either party to perform its obligations hereunder will be excused if, and to the extent that, such delay or failure is caused by or arises out of an event or occurrence beyond the reasonable control of such party and without its fault or negligence, such as, by way of example, acts of God or the public enemy, explosion, riot, war, sabotage, insurrection, fire, flood, civil commotion, closing of the public highways, and actions of a government authority (whether or not valid); and such party is taking reasonable measures to remove or mitigate the effects of the applicable cause, then the running of all periods of time mentioned herein and the performance of all obligations required herein shall be suspended during the continuance of such interruption, and such Party shall promptly notify the other Party of such interruptions.  Should Carrier invoke this Section 19, Shipper may use other means to fulfill its transportation requirements during such period of force majeure.

20. Severability

If any provision of this Agreement is invalid or unenforceable under any statue, regulation, ordinance, executive order or other rule of law, such provision will be deemed reformed or deleted, as the case may be, but only to the extent necessary to comply with such statue, regulation, ordinance, order or rule, and the remaining provisions of this Agreement will remain in full force and effect.

21. Entire Agreement

This Agreement and the attached appendices contain the entire understanding of the parties, supersede all prior or contemporaneous discussions, understandings, negotiations and agreements, whether oral or written, and cannot be amended except in writing and, subject to Section 22 above, signed by both parties. In the event of a conflict between the terms and conditions of any Shipping Document and the terms and conditions of this Agreement, the terms and conditions of the Shipping Document shall control.

22. Waiver

A waiver of a breach of any term of this Agreement will not be considered (i) a waiver of a further breach of the same term, or (ii) a waiver of a breach of any other term.

23. Counterparts

This Agreement may be signed in one or more counterparts, and each counterpart will be considered an original Agreement. All of the counterparts will be considered one document and become a binding agreement when one or more counterparts have been signed by each of the parties and delivered to the other.

24. Titles And Headings

Titles and headings are inserted in this Agreement for reference purposes only, and must not be used to interpret this Agreement.

25. Third-Party Beneficiaries

This Agreement confers no rights or remedies on any third party, other than the parties to this Agreement and their respective successors and permitted assigns.

26. Appendixes

For a copy of Appendix A, Appendix B, and Appendix C please contact:

Andrea Caponi
Logistics Team Leader
acaponi@nationalfoodgroup.com

• Appendix A: - Rate Schedules
• Appendix B: - Rules and Accessorial Charges
• Appendix C: - Fuel Surcharge Policy