Terms and Conditions
Freight Tec Management Group, Inc.
Terms and Conditions
The Terms and Conditions set forth herein shall apply to all shipments of freight that Freight Tec Management Group, Inc. (hereinafter “FTMG”) arranges to be transported by motor carrier.
Section 1 — Scope and Applicability of Terms and Conditions.
1.1 Applicability of Terms and Conditions By offering, tendering or referring freight to FTMG to be arranged to be hauled, all parties, whether such party is acting as a shipper, consignor, receiver, consignee, freight forwarder, broker, intermediary, 3PL, 4PL, carrier, freight agent or otherwise (all of which will be referred to hereafter for convenience as a “Customer”) acknowledge and agree that the terms and conditions set forth herein apply to any and all freight that Customer refers to FTMG. While FTMG will endeavor to send confirmation of tender of freight by written or electronic means (hereinafter a “Load Confirmation”) to Customer, which may incorporate by reference the terms and conditions set forth herein, the terms and conditions set forth herein shall nevertheless apply to all freight tendered or referred to FTMG to be arranged to be hauled, whether a Load Confirmation or other document or communication incorporates the terms and conditions set forth herein or not.
1.2 Acknowledgment of Broker Status By offering, tendering or referring freight to FTMG, Customer acknowledges and agrees that FTMG is an interstate property broker, as such term is defined in 49 U.S.C. S 13102(2) and 49 C.F.R. S 371.2(a); that FTMG acts solely as an interstate property broker (hereinafter “a broker”) in arranging for the transportation of freight by authorized motor carriers; and, that FTMG does not operate, nor holds itself out to be, either a motor carrier, a freight forwarder, a 3PL, a 4PL, an non-vessel ocean common carrier (“NVOCC”), a rail carrier, a shipper’s agent, a carrier’s agent, or any other type of entity, other than a broker as defined in 49 U.S.C. S 13102(2) and 49 C.F.R. S 371.2(a).
Section 2 — Services to be Provided by FTMG
2.1 Arranging for Freight to be Transported via Motor Carrier. FTMG is an interstate property broker operating pursuant to authority granted to it to do so by the Federal Motor Carrier Safety Administration (“FMCSA”) under MC 147619. As a broker, FTMG’s responsibility is limited to arranging for, but not actually performing, transportation of freight. Upon Customer’s offer, tender or referral of freight to FTMG, if FTMG agrees to seek to arrange for transportation of such freight, FTMG will use its best efforts to arrange for such freight to be transported from its designated origin(s) to its appointed destination(s) by a motor carrier authorized to operate as such by the FMCSA and the United States Dept. of Transportation (“USDOT”). FTMG will confirm that any motor carrier with whom it arranges to haul Customer’s freight holds a current license and is authorized to operate as a motor carrier by the FMCSA and USDOT and that such motor carrier carries and has in place all insurance required to be carried under federal regulations for carriers of non-hazardous materials. FTMG may, but is not required to, also take such other measures as FTMG deems appropriate with respect to selection of motor carriers to transport Customer’s freight. FTMG reserves the right to decline or refuse to arrange for the transportation of any freight.
2.2 Information Pertaining to Freight. Customer will provide FTMG timely and accurate information regarding the subject cargo, including, but not limited to, pick-up and delivery locations, description of the cargo, including, but not limited to, type, dimensions, weight, special handling, temperature, storage, and/or security requirements, and other pertinent information regarding the cargo. All rate quotes and other pricing by FTMG are prepared based upon the type of freight, dimensions and weight, and other information pertaining to the freight provided by Customer. Different equipment and different federal, state, and local laws will apply when the cargo to be moved exceeds certain width, length, height and/or weight limits or is of different type than that described by Customer. In such situations, the type of equipment necessary to complete the move can change and the costs of transporting the freight can increase substantially due to both changes in types of equipment and the need for over-weight/over-dimensional permits, pilot cars, pole cars, route surveys, specialized or alternative routing, restricted hours for transport, utility company support in moving or disconnecting overhead power lines, etc., state highway patrol support, local city planning support, and/or various other requirements (hereinafter “permit costs”). If the type of freight, actual weight or dimensions, or other handling requirements of the freight to be transported are different than originally represented to FTMG, FTMG reserves the right to add such costs, plus a reasonable mark-up on such costs, to the quoted amount to arrange for transportation of the freight.
2.3 FTMG Broker’s Bond. FTMG will at all times maintain a broker’s security bond in the minimum amount required by law. Currently, the law requires that a broker maintain a security bond or broker’s trust fund in the amount of at least $10,000. FTMG currently maintains a broker’s security bond in the amount of $100,000.
2.4 Agreements with Carriers. FTMG will endeavor in each case to enter into a written agreement with the carriers with whom it arranges to haul Customer’s freight, which, among other things, will define the roles and terms that FTMG and such carrier will undertake with respect to such freight. Customer may request that FTMG provides Customer with a copy the form agreement that FTMG typically enters into with carriers, although Customer must recognize that the terms of FTMG’s agreements with carriers may vary from time-to-time.
2.5 Payment to Carriers for Freight Charges. FTMG will be responsible to pay each of the carriers with whom it arranges to transport Customer’s freight the appropriate amount of freight charges to be paid to such carriers. FTMG and Carrier agree that all freight charge payments mutually agreed to in FTMG’s epay payment system are final. FTMG typically requires such carriers to agree in writing to waive and any all claims against Customer or others (other than FTMG) for payment of freight charges and to agree that such carriers will look exclusively to FTMG for payment of freight charges. FTMG will indemnify and hold harmless Customer from claims for freight charges from any carrier with whom FTMG arranges to transport Customer’s freight up to the amount of freight charges that FTMG has agreed in writing to pay such carriers.
2.6 Bills of Lading. FTMG’s role with respect to any freight tendered is that of a broker. Accordingly, each carrier with whom FTMG arranges to haul Customer’s freight is required to issue or adopt a bill of lading in compliance with 49 C.F.R. S 373.101. Such carrier’s name and MC# should be listed on any and all bills of lading. If FTMG’s name is inadvertently or otherwise listed on a bill of lading or other shipping document as the carrier or in any capacity, other than as a “third-party bill to” party or as a broker, such listing shall be deemed to be for convenience only and shall not change, alter, modify or be construed to change or modify FTMG’s role as an interstate property broker only respect to any load of freight.
2.7 No Authority to Control the Means by which Carrier Performs Services. Customer acknowledges that FTMG’s role is simply to arrange for transportation of freight by a licensed motor carrier. Neither FTMG nor Customer has any right to control, nor will FTMG or Customer control, the means by or manner in which any carrier engaged by FTMG performs its functions in transporting and delivering the subject freight. The means and manner by which a carrier accomplishes the task of delivery the subject freight is in the carrier’s sole discretion. FTMG cannot and shall not exercise any control over the manner in which a carrier performs its services or a carrier’s operations, nor does FTMG retain any right to control or otherwise supervise a carrier or a carrier’s employees or other agents. A carrier engaged by FTMG shall be solely responsible for any and all management, control, governance and discipline of such carrier’s employees, agents, owner/operators, and equipment; and FTMG has no power or authority to hire or terminate the employment of any of a carrier’s employees or other agents. Even though FTMG, Customer, shippers/consignors, consignees, or other persons or entities may from time-to-time provide a carrier with verbal or written instructions suggesting routes, types of equipment, methods of securing loads, methods of loading or unloading freight or other means of transporting and delivering the subject freight, such suggestions, if given, shall be for informational purposes only and the carrier shall retain the right to choose routes, times that the carrier will perform its services, employees, equipment to be used, methods of securing loads, methods of loading or unloading freight and all other means of transporting and delivering the freight. Even though a carrier may consider instructions, guidelines and/or other suggestions from FTMG, Customer, shippers/consignors and/or consignees, the carrier shall remain ultimately responsible to choose and control the method of loading, unloading, and securing the load and transporting the load and will do so in a manner that the same may be loaded, transported, and unloaded safely without damaging the load or endangering the public or any person or entity.
2.8 Independent Contractor Relationship with Carriers. FTMG’s relationship to any carriers with whom it arranges to transport Customer’s freight is and shall at all times be that of an independent contractor and no facts, agreements or other considerations shall be construed to be inconsistent with that status. No term or provision of any agreement with a carrier or any act or omission of FTMG or a carrier shall be construed for any purpose to express or imply any joint venture, partnership, principal/agent, master/servant, fiduciary, employer/employee or other relationship between FTMG and a carrier, other than that of an independent contractor relationship. No employees or other agents of a carrier shall be construed under any circumstance to be the employees, servants, or agents of FTMG, Customer, the shipper/consignor, the consignee, or any “bill to” party. Neither a carrier, nor any of its employees or agents, shall have any authority to act on behalf of FTMG or to alter in any manner any contractual or other relationship of FTMG with Customer, shippers/consignors, consignees, or any other person or entity. Neither FTMG, nor any carrier are authorized to use the formal name, any business or trade name or any derivative thereof, nor any trademark or service mark of the other or of any other company with which either FTMG or a carrier may be affiliated. Any carrier that FTMG arranges to transport any of Customer’s freight shall bear all costs of and shall provide all labor, wages, payroll, equipment, fuel, maintenance, insurance, federal, state and local payroll taxes and any other taxes, unemployment insurance, pensions, social security payments, workers’ compensation insurance, and all other costs associated with transportation of the subject freight and performance of such carrier’s transportation services. FTMG shall not be liable for or responsible to pay any such costs. Neither FTMG nor any carrier will hold itself out to be anything but an independent contractor with respect to each other and Customer shall not construe or assert FTMG or any carriers to be anything but independent contractors with respect to each other.
Section 3 — Cargo Loss or Damage and Delay Claims.
3.1 FTMG has no liability for any Cargo Loss or Damage or Delay Claims. Customer and any other parties holding or claiming any interest in freight that FTMG arranges to be transported acknowledge and agree that FTMG, being a broker, has no liability to any person or entity for any loss of or damage to any such freight and that FTMG has no liability to any person or entity for any delay in delivery of such freight. Customer, for itself and any of its customers, vendors, shippers, consignors, receivers, consignees, others claiming a beneficial or other interest in any subject freight and any of their respective insurers, successors, and assigns, does hereby agree to look solely to any carrier arranged by FTMG to transport any subject freight for recovery of any loss of or damage to such freight or delay in delivery of such freight and agrees to hold FTMG harmless with respect to any claims for loss of or damage to any freight tendered to FTMG or and to hold FTMG harmless with respect to any claims for delay in delivery of any such freight. Customer, for itself and any of its customers, vendors, shippers, consignors, receivers, consignees, others claiming a beneficial or other interest in any subject freight, and any of their respective insurers, successors, and assigns, does hereby acknowledge and agree that FTMG has not agreed (expressly, implicitly or otherwise) to be liable or responsible for loss of or damage to any subject freight and, Customer and any other persons or entities specifically acknowledge and agree that FTMG is not liable or responsible for the loss of or damage to any subject freight or for delay in delivery of the same. FTMG may, at FTMG’s sole option, assist Customer or others in pursuing claims for loss of or damage to freight or delay in delivery of freight with the carrier; but, FTMG shall not be subject to any liability for doing so or otherwise with respect to any such claim. If FTMG does pay any amount to Customer or other interested party in connection with a cargo loss or damage or delay claim, FTMG shall be deemed to have been assigned all of Customer’s and/or such other party’s rights and interests in such claim. In the event of a claim, Shipper must discuss the issue with the driver while they are on-site and before unloading the product. Shipper will call their Agent/ Representative at Freight Tec before unloading the product, write notes describing the damage on the BOL, and take pictures of the damaged product before it is unloaded. Shipper will email copies and pictures of all evidence of any claim that same day to firstname.lastname@example.org. Any claim filed that is missing any of this required information is subject to denial at FTMG’s sole discretion.
3.2 Limitation of Liability for Any Loss, Damage or Delay Claim. Should any court or other tribunal find FTMG to be liable for the loss of or damage to any freight that FTMG arranges to be hauled despite the provisions of the foregoing section 3.1, then, in any such event or case or for whatever reason FTMG may somehow be held or found to be liable for any claim for loss of or damage to freight or for delay in delivery of freight, any such liability of FTMG shall be limited to the lesser of an amount equal to $0.50 per pound up to a maximum of $100,000 or a refund of the freight charges applicable to the specific load lost and/or damaged, unless a greater value has been declared reasonably in advance of pick-up of the subject freight (preferably forty-eight (48) hours in advance) and in writing and communicated directly to FTMG (and not just to the carrier arranged by FTMG) in advance and the President of FTMG has specifically agreed in writing to the declared value and the rate for arranging for transportation of the load of freight has been increased accordingly and such increased amount is actually paid to FTMG by Customer.
3.3 High Value Loads. Most carriers with which FTMG arranges to transport freight carrier cargo loss and damage insurance in the amount of $100,000, subject to various exclusions and deductible levels. Should Customer offer, refer or tender freight to FTMG that is worth greater than $100,000, Customer shall give FTMG notice of such greater value and the value of such freight in writing reasonably in advance (preferably forty-eight (48) hours in advance) of the requested pick-up date. FTMG may, at its option, assist Customer in obtaining excess cargo insurance or shippers’ interest insurance where the cargo can be insured for amounts greater than $100,000; however, unless there is a written agreement signed by the President of FTMG, together with a certificate of insurance or notice of increased insurance from the insurance company in advance, no such additional coverage shall be obtained or afforded and FTMG shall not have any liability therefore or with respect to any loss of or damage to such freight. If, notwithstanding these Terms and Conditions, FTMG is somehow found to be liable, its liability, if any, shall be limited as set forth in section 3.2 hereof.
3.4 Time-Sensitive Freight. As set forth herein, FTMG shall not be liable for any claims for delay in delivery of freight. If Customer has freight that must be delivered in a time-sensitive manner, Customer shall notify FTMG in writing of such fact in advance of pick-up of such freight and shall set forth in such writing the types of damages it anticipates suffering for delay in delivery, along with an estimate of damages to be suffered should delivery of such freight be delayed. FTMG will endeavor to advise the carrier arranged to transport such freight of the time-sensitive nature of the freight; however, FTMG shall not be liable for any delay in delivery of such freight and Customer’s sole remedy, if any, shall lie with the carrier. Customer acknowledges and agrees that neither Customer, FTMG, or any other party involved in the movement will place requirements upon a carrier or request that a carrier meet a pick-up or delivery schedule that will or may require a carrier or its driver(s) to violate any laws relating to safety or which may require violation of any state, federal or local statute, rule or regulation pertaining to safety, including, but not limited to, those pertaining to hours of service; and, that all such requests and requirements for pick-up and delivery will enable a carrier to operate its business and transport such load in a safe and prudent manner and in strict and full compliance with all state, federal, and local statutes, rules, and regulations. In no event shall FTMG be liable for any special, incidental, consequential or compensatory damages relating to any delay in delivery of a shipment. Additionally, if any failure or delay in pick-up or delivery of freight shall be the result of an occurrence or event that is outside of the control of FTMG and/or the carrier(s) that FTMG arranges to transport the freight, including, but not limited to, such causes as severe weather, fires, floods, natural disasters and catastrophes, highway accidents, roadway blockage, closures and/or re-routing, traffic congestion, fuel shortages, acts of God, war or enemy action, civil commotion, riots or insurrection, epidemics, re-routing, or other similar occurrences or event, neither FTMG or the carrier shall have any liability for such failure or delay in service.
3.5 HAZMAT Loads. Should Customer request that FTMG arrange for transportation of freight that constitutes hazardous materials, whether such materials meet the definition contained in 40 C.F.R. S 261.1 et seq. or other definitions or designations, Customer shall notify FTMG of the same; and, Customer shall comply with all applicable laws and regulations relating to the transportation of hazardous materials, including, but not limited to, those defined in 49 C.F.R. S 172.800, S 173 and S 397 et seq. Customer shall further defend, indemnify and hold FTMG harmless from any penalties or liability of any kind, including reasonable attorney fees, arising out of Customer’s failure to comply with applicable hazardous materials laws and regulations.
3.6 Canceled Loads. If Customer requests that FTMG arranges for a carrier to transport a load of freight and such load is subsequently canceled or delayed beyond the requested pick-up time and the carrier arranged by FTMG has sent a truck or equipment or has otherwise incurred expenses in connection with such load, Customer agrees to pay to FTMG the amount of costs and expenses incurred by such carrier, plus ten-percent (10%) of such amount. Customer acknowledges that FTMG will pass along to such carrier ninety-percent (90%) of the amount paid by Customer to FTMG.
3.7 Delay/Detention in Loading at Origin or Unloading at Destination. Carriers arranged by FTMG generally allow a certain amount of “free time” (typically two (2) hours) for loading of freight at origin and unloading of freight at the destination. Customer shall defend, indemnify and hold FTMG harmless for any amount of time in excess of the “free time” allowed by the carrier arranged by FTMG for which such carrier is detained for loading, unloading, or otherwise at the origin or destination.
Section 4 — Payment Terms
4.1 Payment Terms. FTMG shall invoice Customer for its services in arranging for the transportation of freight in accordance with the rates and charges agreed to by FTMG and Customer. All charges owing to FTMG are due to be paid within twenty-one (21) days of the invoice date, without any deduction or setoff. FTMG shall apply Customer’s payment to the invoice(s) specified on the remittance advice, if any. Otherwise FTMG may apply payments to such invoice(s) or other amounts owing from Customer as FTMG deems appropriate in its sole discretion. If any charges owing to FTMG are not paid by the due date, interest shall accrue on the amounts owing at the rate of 1.5% per month. Customer shall also be liable to pay FTMG for any and all costs incurred by FTMG in collecting the amounts owing, including, but not limited to, reasonable attorney fees.
4.2 FTMG Enforcement of Rights of Carrier. Should Customer fail to pay FTMG the full amount owing to FTMG within the time-period provided for herein and FTMG has paid the carrier(s) with which it arranged for transportation of Customer’s freight, FTMG shall be deemed to be subrogated to and to have received an assignment of all of the carrier’s rights under the bill of lading or other applicable documents or law to collect from any other potentially liable parties, including, but not limited to, any and all shippers, consignors, receivers, consignees, or other parties having a beneficial interest in the freight transported or the services provided.
Section 5 — Insurance
5.1 Insurance obtained by FTMG. Other than a broker’s security bond or trust fund, FTMG is not required to carry any insurance pertaining to the services FTMG provides hereunder. By way of information and not by way of requirement, however, FTMG generally carries and maintains the following insurance coverage in the amounts indicated:
a) Comprehensive General Liability Insurance $1,000,000;
b) Contingent Cargo Liability Insurance $100,000;
c) Errors and Omissions Insurance (excludes bodily injury) $100,000.
Section 6 — Indemnification.
6.1 Indemnification of FTMG. Customer shall each defend, indemnify and hold FTMG harmless against any claims, actions, damages and causes of action arising out of or relating to Customer’s negligent or other tortuous acts or omissions or arising out of or relating to Customer’s failure to fulfill any obligations it may have to hereunder or otherwise.
Section 7 — Independent, Non-Exclusive Relationship
7.1 Independent Contractor Relationship. The relationship between FTMG and Customer shall at all times be that of an independent contractor and nothing contained herein or otherwise shall be construed to be inconsistent with that status. No term or provision of this or any other agreement or any act or omission of either party shall be construed for any purpose to express or imply any joint venture, partnership, principal/agent, master/servant, fiduciary, employer/employee or other relationship between FTMG and Customer, other than that of an independent contractor relationship. No employees or other agents of Customer shall be construed under any circumstance to be the employees, servants, or agents of FTMG or any applicable carrier. Likewise, no employees or other agents of FTMG shall be construed under any circumstance to be the employees, servants or agents of Customer, the shipper/consignor, the receiver/consignee, or any other party. Neither Customer, nor any of its employees or agents, shall have any authority to act on behalf of FTMG or to alter in any manner any contractual or other relationship of FTMG with its carriers, customers, shippers/consignors, receivers/consignees, vendors, or any other person or entity. Likewise, neither FTMG, nor any of its employees or agents, shall have any authority to act on behalf of Customer or to alter in any manner any contractual or other relationship of Customer with its customers, carriers, shippers/consignors, receivers/consignees, vendors, or any other person or entity. Neither FTMG, nor Customer, are authorized to use the formal name, any business or trade name or any derivative thereof, nor any trademark or service mark of the other party or of any other company with which either party may be affiliated, without express written permission to the contrary. Customer and FTMG shall each bear all of their respective costs of and shall provide all labor, wages, payroll, equipment, insurance, federal, state and local payroll taxes and any other taxes, unemployment insurance, pensions, social security payments, workers’ compensation insurance, and all other costs associated with their respective businesses and arrangement for and transportation of the subject freight and performance of their respective services. Neither FTMG nor Carrier will hold itself out to be anything but an independent contractor with respect to the other, nor will FTMG or Customer assert that they maintain any relationship with the other that is different from that of an independent contractor.
7.2 Non-Exclusive Use. FTMG is not restricted from providing freight brokerage or other services to persons or entities different from Customer; and, subject to the provisions hereof relating to Customer tendering freight directly to carriers which FTMG has arranged to haul freight offered, tendered or referred from Customer, Customer is not restricted from offering, tendering, or referring freight to other brokers, freight forwarders, other logistics providers or motor carriers different from FTMG.
7.3 No Control or Right of Control by FTMG or Customer. Neither FTMG nor Customer has the right to control nor shall either exercise any control over the manner in which the other performs its services hereunder or carries on their respective operations. Neither FTMG nor Customer retains any right to control or otherwise supervise the other’s employees or other agents. Customer and FTMG shall each be solely responsible for any and all management, control, governance, discipline, of their respective employees and agents; and, neither has any power or authority to hire or terminate the employment of any of the other’s employees or other agents.
Section 8 — Confidentiality and Protection of Business Relationships
8.1 Covenant to Not Tender Freight Directly to Carrier Introduced by FTMG. Customer recognizes that FTMG has spent substantial time, money and resources developing a reputation in the freight brokerage industry and developing business relationships with carriers through which it arranges transportation of freight of Customer and others and that FTMG is providing a valuable service to Customer in arranging for transportation of Customer’s freight. Therefore, as part of the consideration for FTMG arranging for the transportation of Customer’s freight, Customer agrees that for a period of twelve (12) months following the date of any load of freight for Customer that FTMG arranged to be transported by a particular carrier, that Customer will not offer, tender or refer freight directly to that particular carrier, unless during the twelve (12) month period immediately preceding the first load of freight of Customer that FTMG arranged to be hauled by that particular carrier, such carrier had hauled sufficient freight directly for Customer (and not arranged through FTMG or another broker or other party) to generate at least $10,000 of freight charges. Should Customer violate the provisions of this section, Customer agrees to pay FTMG, as liquidated damages, an amount equal to fifteen-percent (15%) of the gross amount that Customer has agreed to pay such carrier for transporting freight for Customer for a period of twelve (12) months following the date of the last load of Customer’s freight that FTMG arranged to be transported by that particular carrier.
8.2 Confidential Information. Customer further agrees that it shall protect and keep confidential any and all non-public, confidential, or proprietary information of FTMG, including, but not limited to, the identity of FTMG’s carriers, carrier lists, freight and brokerage rates, pricing, freight volume requirements, or the like and that Customer shall not disclose the same, without the prior written approval of FTMG.
Section 9 — Miscellaneous
9.1 Governing Law/Jurisdiction: Negotiations for the offering, tendering and/or referral of freight to FTMG are be deemed to have been conducted within the State of Utah. Accordingly, except to the extent (if any) that they are preempted by federal law, the laws of the State of Utah shall govern the construction and interpretation of these Terms and Conditions and the dealings of Customer with FTMG. Customer expressly submits to the jurisdiction of the Courts of the State of Utah and the United States District Court for the District of Utah and agrees that jurisdiction and venue shall be proper in such Courts and Carrier waives any claim or defense that such Courts will be an inconvenient forum.
9.2 Remedies. In addition to any other remedies that may be available to FTMG at law or in equity, all provisions of these Terms and Conditions may be specifically enforced, however, the failure of FTMG to promptly enforce such provisions shall not be construed to be a waiver of FTMG’s rights hereunder. In addition, Customer recognizes that the payment of damages hereunder may not fully compensate FTMG for Customer’s breach of the provisions of these Terms and Conditions and that FTMG will likely suffer irreparable harm from such a breach. Accordingly, Customer agrees that should it breach, violate, or threaten to breach or violate the provisions of these Terms and Conditions, that FTMG will be entitled to injunctive relief prohibiting Customer’s breach, violation or continued breach or violation without the need of FTMG having to post any bond in connection with such injunctive relief. If the shipper/consignor, consignee, Freight Tec customer or other person or entity pursues a claim for cargo loss, theft, shortage, damage or delay involving a shipment tendered to Carrier hereunder directly against Carrier and prevails in pursuing recovery for such a claim, such party shall be entitled to recover from Carrier its costs and attorney fees incurred in pursuing such action.
9.3 Miscellaneous. These Terms and Conditions and any Load Confirmations issued to Customer by FTMG pertaining to a load for freight offered, referred or tendered to FTMG constitute the entire agreement between the FTMG and Customer pertaining to FTMG’s arranging for the transportation of Customer’s freight and are intended to be a complete integration of terms and cannot be altered, except through a written agreement signed by the President of FTMG. No other prior or contemporaneous agreements exist between FTMG and Customer, except as set forth in these Terms and Conditions. If any term or provision hereof is held invalid or unenforceable by a court or tribunal of competent jurisdiction, such term or provision shall be deemed to be modified to be enforceable or, alternatively, shall be deemed to be severed here from, and shall not affect the remaining provisions hereof, which shall remain enforceable to the full extent allowed by law. The failure of either party to enforce a breach or waiver of any term, condition or provision hereof shall not be deemed to constitute a waiver of any subsequent failure or breach. These Terms and Conditions shall be binding upon and inure to the benefit of any successors and assigns of FTMG and/or Customer.
9.4 Additional Terms and Conditions for Carriers: The Terms and Conditions set forth herein shall apply to all shipments of freight that Freight Tec Management Group, Inc. (hereinafter “FTMG”) arranges to be transported by Motor Carrier. These Carrier Terms and Conditions are acknowledged as being a part of the Broker/Carrier Agreement (hereinafter “BCA”) executed by the Carrier with FTMG and the Carrier acknowledges that to the extent there is duplication or a conflict of terms with the BCA that FTMG has executed with the Carrier, the terms and conditions in the BCA shall prevail.
9.4.1 In the event a Rate Confirmation is not returned by the Carrier prior to the Carrier picking up a load where FTMG has arranged transportation, the Terms and Conditions as stated in the BCA and these Terms and Conditions will apply to Carrier at all times along with any specific instructions shown on the Shipper’s Bill of Lading.
9.4.2 The Carriers’ Driver must read and follow any instructions shown on the Shipper’s Bill of Lading and the FTMG’s Rate Confirmation. Instructions to the Carrier on the Shipper’s Bill of Lading that conflict with those instructions on the FTMG’s Rate Confirmation will pre-empt any instructions on the FTMG’s Rate Confirmation (sometimes also referred to as the “Load Confirmation”). Some of these instructions may include the temperature to maintain in refrigerated equipment (“reefer”) for the product being hauled, check call times to notify the Shipper and/or FTMG about the progress of hauling the load and the estimated time of arrival at the Receiver’s dock, whom to notify in the event of problems on the road—especially with a reefer unit that has malfunctioned, pre-cooling of reefer units prior to pulling up to the Shipper’s dock, pulp product at Shipper’s dock to verify temperature listed on the Shipper’s Bill of Lading and confirm match with signature, and other special instructions pertaining to the load being hauled. Note that temperatures listed on the Shipper’s Bill of Lading always govern and pre-empt any temperatures shown on FTMG’s Rate Confirmation. However, any discrepancies found in pulping product to be shipped at a temperature specified on the Shipper’s Bill of Lading must be pointed out to BOTH the Shipper and FTMG.
9.4.3. Carrier’s driver will contact FTMG about any problems being experienced while picking up, hauling, or delivering the load. Good communication is essential to avoid delays, problems with qualifying for and collecting detention from a Shipper or Receiver, dealing with breakdowns, inclement weather and subsequent detours and delays, and other transportation issues.
9.4.4 Carrier will only send in clean trailers to the Shipper’s dock and only those trailers that meet the specifications as shown on FTMG’s Rate Confirmation. If there is a question by the Carrier about its equipment being the correct, qualified equipment for the job, Carrier will ask such questions of FTMG prior to accepting the load and signing the Rate Confirmation. If the equipment is not as specified on FTMG’s Rate Confirmation and the Carrier is turned away at the Shipper’s dock, no “Truck Ordered, Not Used” (“TONU”) compensation will be paid to Carrier.
9.4.5 Unless FTMG specifically authorizes transportation by rail on the FTMG Rate Confirmation, all loads will be hauled only by the Carrier’s equipment. Loads shipped by railroad by Carrier will cause Carrier to forfeit all payment due from FTMG.
9.4.6. Carrier agrees not to “Double Broker” or “Trip Lease” or “Interline” any freight where FTMG has arranged transportation for Shipper with Carrier without a written consent from the President of FTMG. If a load is double brokered, trip leased, or interlined without FTMG’s President’s written consent, Carrier forfeits any payment due on the load from FTMG.
9.4.7 Carrier will notify FTMG immediately about any Over, Short, & Damaged Claims. Prompt notification of OS&D situations can often help to resolve these issues quickly and reduce the exposure of the Carrier to claims. Carrier must witness the sealing of any dry van or reefer trailer by the shipper and have the Shipper sign the Bill of Lading with the seal number verified.
9.4.8 If Carrier is hauling a refrigerated (“reefer”) load, Carrier agrees to be compliant with all state and federal laws, rules, and regulations. More specifically, if Carrier is hauling a reefer load in the state of California, the Carrier agrees to comply with all laws, rules, and regulations of the California Air Resources Board (“CARB”) and be liable for all fines and penalties for not compliant. Further, Carrier agrees that the refrigerated equipment it uses to haul the load will meet the Transport Refrigeration Unit (“TRU”) regulations.
9.4.9 All Detention for delays in loading or unloading must be pre-approved by FTMG in advance. If the Carrier’s driver has waited for one hour at a Shipper’s or a Receiver’s dock to be loaded or unloaded and nobody is making an effort to load or unload the trailer, Carrier must notify FTMG immediately so that FTMG can notify the Shipper about the impending delays and potential detention charge in order for detention charges from Carrier to be approved. The Shipper or the Receiver (as the case may be) must note the “time in” and the “time out” on the Bill of Lading and initialed by the appropriate Shipper or Receiver dock worker. Failure to do so will result in the loss of detention costs to be paid to Carrier.
9.4.10 Carrier must provide the name of the Driver, truck and trailer number, and cell phone number before any shipment or load will be tendered to any Carrier by the Shipper. This is a security requirement of many Shippers.
9.4.11 If a Carrier misses or is late for a pickup or a delivery appointment, they will be subject to a $150.00 penalty per occurrence. The Carrier will also be responsible for any additional cost that may be incurred for missed or late pickups or deliveries from shippers or receivers. A fine of $150.00 will be imposed on the Carrier if the Carrier calls the Shipper or Receiver to reschedule appointments. Any rescheduled appointments MUST go through FTMG.
9.5 Carrier payment is expedited when all information required for payment has been provided to FTMG. This includes the Carrier’s name and MC# or USDOT # on the Shipper’s Original Bill of Lading signed by the Receiver without any notations of OS&D, the FTMG Rate Confirmation, and any other documents that Shipper has sent with Carrier to have signed by Receiver.
9.5.1 Lumper or any load/unload trailer service will only be reimbursed if pre-approved by FTMG and documented on the FTMG Rate Confirmation. Lumper Receipts are required for payment.
9.5.2 Providing less than the required number of pallets to trade when picking up a load from the Shipper may result in a $10.00 charge per pallet that will be deducted from Carrier’s payment.
9.5.3 Tolls and permit costs are generally included in the rate as shown in the FTMG Rate Confirmation. However, if the FTMG Rate Confirmation shows that permit costs are to be paid separately from the rate shown in the FTMG Rate Confirmation, a copy of the permit and the receipt of the amount paid will be required by FTMG for reimbursement to the Carrier.
9.6 Food safety for humans and animals is very important! Carrier will comply with all current and future laws, rules, and regulations regarding the hauling of food and animal products in Carrier trailers at all times and will provide monitoring of such loads if required by the Shipper and FTMG.
9.7 Under no circumstances will Carrier haul any load that is Hazardous Waste. FTMG will never knowingly ask Carrier to haul a Hazardous Waste load (as opposed to a Hazardous Material load). In the event Carrier is suspicious that a Shipper is about to load a Hazardous Waste load on Carrier’s equipment, Carrier must immediately notify the Shipper not to load the Hazardous Waste and notify FTMG about the problem. Hazardous Waste loads include decaying animal remains, nuclear material, certain chemicals, organic waste, and other materials.