TRANSPORTATION AGREEMENT
This agreement (“Agreement”) is made as of the date below (“Effective Date”) by and between Proficient Auto, Inc. dba Proficient Auto Transport (“Broker”), a Florida corporation, and the Company listed above (“Carrier”).
RECITALS
Whereas, Proficient Auto, Inc. is a Federally Approved “Broker, arranging for transportation of freight (except household goods) by motor vehicle” DOT broker license MC-502865-B and
Whereas, Carrier in the business of transporting motor vehicles; and
Whereas, Broker desires to establish an agreement with Carrier for the transport of certain new motor vehicles (new motor vehicles defined as never having the title or registration transferred from a manufacturer, distributor, or dealer to an ultimate customer) on motor vehicle carriers; and
NOW, THEREFORE, in consideration of the foregoing Recitals, which are incorporated herein and in consideration of the premises and promises set forth herein, and for the other valuable consideration, receipt and sufficiency of which the parties acknowledge, the parties agree as follows:
1. Definitions.
(a) "Car Carriers" shall mean any vehicles and equipment
owned or leased and operated by Carrier and used in its normal business
operations capable of the transport of motor vehicles.
(b) "Vehicle" shall mean a motor vehicle that Broker
desires to be transported.
(c) "Value" shall mean the value of a Vehicle as
determined by the shipper (OE manufacturer).
2. Term and Termination.
This agreement shall be on a "month to month" basis. Either party may
terminate this Agreement without cause, at any time with thirty (30)
days prior written notice to the other party, addressed to the
persons/addresses in Section 12 of this agreement.
3. Duties of Carrier.
(a) Carrier represents and warrants that it is duly and legally qualified
to provide the transportation services contemplated herein, and it does not
have an "Unsatisfactory" safety rating from the Federal Motor Carrier
Safety Administration. Carrier agrees to comply with all federal, state and
local laws regarding the provisions of such services.
(b) Time is of essence. Carrier is required to fully comply with all Broker
and Broker customer specific shipping policies as indicated in Schedule A
of this agreement.
(c) Carrier will not solicit Broker’s customers. Carrier will not solicit
traffic from any shipper, consignor, consignee or customer of Broker where
(1) the availability of such traffic first became known to Carrier as a
result of Broker’s efforts, or (2) the traffic of the shipper, consignor,
consignee or customers of broker was first tendered to Carrier by Broker.
All communication to the Broker’s customers will be by the Broker. Carrier
to communicate directly and only to the Broker.
(d) Broker shall issue a loading Manifest/Delivery Receipt to Carrier
for every shipment tendered. This document will contain, at a minimum
(1) Shipper’s name and address (2) Consignee name and address, (3)
unique vehicle identification number (VIN), (4) bay location where
vehicle is located, (5) make, model and color of vehicle. Carrier must
perform a visual inspection of each vehicle for any damages and
immediately notify Broker of any exceptions. Carrier must verify that
the VIN on the manifest matches the VIN on the car (windshield, etc.)
as well as the VIN on the Maroney Label prior to moving the vehicle.
Carrier must perform a visual inspection of each vehicle for any
damages and notify Broker of any exceptions prior to moving the vehicle
or accepting for shipment. All vehicles are assumed to be in good order
and condition at the time shipment is tendered to Carrier unless
otherwise noted on the Manifest by Broker.
(e)
Upon delivery of each vehicle shipment made hereunder, Carrier
shall obtain a receipt showing the kind and quality of the
vehicle/vehicles delivered to the consignee of such shipment at the
destination specified by Broker and Carrier shall cause such receipt to
be signed by the consignee. Carrier shall notify Broker of any
exception being made on the bill of lading, manifest or other receipt.
The absence or loss of any receipt shall not relieve the Carrier of its
obligations and responsibilities with respect to any shipment made
hereunder.
(f)
Carrier shall at its sole cost and expense pay all costs, fees,
taxes and expenses incurred in connection with the ownership, lease,
operation or maintenance of the Car Carriers and shall undertake all
duties and obligations arising in connection with such ownership,
operation and maintenance. Carrier will maintain the Equipment in good
repair, mechanical condition and appearance: and utilize only
competent, able and legally licensed personnel. Carrier shall have full
control of such personnel and shall perform the services hereunder as
an independent contractor.
(g)
Carrier is to call Broker within 2 hours of pickup of vehicles and
within 2 hours after delivery of vehicles providing to Broker the time
of day pickup or delivery were performed. Any delivery exceptions must
be called in to Broker immediately, indicating dealership, VIN, contact
person at dealership and extent of damages or exceptions.
(h)
Co-Brokering/Subcontract Prohibition. Carrier specifically agrees
that all freight tendered to it by Broker shall be transported on
equipment operated only under motor carrier operating authority of
Carrier, and that Carrier shall not in any way subcontract, broker,
co-broker or in any other form arrange for the vehicles to be
transported by a third party. Carrier shall defend, indemnify and hold
Broker and its customers harmless from any cost, loss, expense or
damage, including attorney’s fees and court cost, arising out of or in
any way related to any breach of this provision, including but not
limited to cargo loss, or damage or delay.
4. Insurance.
Prior to commencing any operations on behalf of Broker, Carrier shall
obtain and maintain at its own expense during the term of this Agreement
the following insurance at the minimum limits set forth:
(a) Commercial General Liability Insurance including
Bodily Injury, Property Damage Liability, Contractual Liability, and
mobile equipment. Broker shall be named as additional insured.
Minimum Limit: $1,000,000 per occurrence.
(b) Truckers Liability or the equivalent specifying as
covered automobiles: any automobiles, trucks, tractors, or trailers
used in the business of the insured. Minimum Limit: $1,000,000 per
accident combined for Bodily Injury and Property Damage.
(c) Motor Truck Cargo insurance covering the Broker
assigned property. Carrier assumes liability for the vehicle/vehicles
from pick up until delivery location representative signs the receipt
form. Carrier shall fully insure Vehicles while being loaded, unloaded
or otherwise in the custody of Carrier or its agents.
Minimum Limit: $350,000 per loss
(d) Waiver of Carrier’s Lien. Carrier shall not
withhold any Vehicle Shipments of Brokers customers on account of any
dispute as to prices or any alleged failure of Broker to pay charges
incurred under this Agreement.
(e) The Extent and Classification of any damage
occurring to a new motor vehicle while the motor vehicle is in Carrier
custody shall be made by the shipper, i.e. Brokers Customer whom
Carrier is picking up vehicles from on behalf of Broker. The shipper
shall be the sole judge as to the damage category, including but not
limited to Constructive Total Loss (CTL) or Diminished Value (DV).
(f) Carrier Agrees that they are financially
responsible for any loss involving CTL or DV whether their insurance
carrier provides coverage for these exposures or not and agrees to
reimburse Broker for full valuation of a new motor vehicle as described
above.
(g) In accordance with Brokers customer agreements, Carrier agrees that Broker has up to 9 months from the delivery date of damaged vehicles to formally file a claim for those damages or exceptions and with Carrier agreeing to settle said claim within 90 days of formal receipt of said
claim.
(h) Workers’ Compensation and Employer’s Liability insurance
complying with the acts of any state in which operations are to be
performed and any federal law that may be applicable to operations
performed on behalf of Broker.
Minimum Limit: The full state or federal statutory benefits for Worker’s
Compensation Insurance and $1,000,000 for Employer’s Liability Insurance.
(i) A Current Certificate of the above insurance shall be
provided to the Broker, (prior to any transactions between the Broker and
Carrier) indicating the types of coverage and limits above and naming
Proficient Auto Transport as additional insured. A current certificate of
insurance will be provided within thirty (30) business days of any
insurance policy renewal. The certificate will include a thirty (30) day
notice of cancellation provision. The certificate will be mailed or faxed
on to the Broker’s address listed below:
Proficient Auto Transport 10057 103rd Street Jacksonville, Florida 32210
Attn: Randy Beggs
5. Indemnification by Carrier
(a) Carrier shall indemnify and hold harmless Broker (and Broker’s
respective customer) from and against any and all losses, liabilities,
damages, costs, fines, expenses, deficiencies, taxes and reasonable fees
and expenses of counsel and agents, including any costs incurred in
enforcing this Agreement, that Broker may sustain, suffer or incur arising
from:
(i.)
Carrier’s failure or alleged failure to comply, in whole or in part,
with any of its obligations hereunder;
(ii.)
any loss of or damage to a Vehicle while being loaded onto, transported
on or unloaded from a Car Carrier.
(iii.)
any damage to any property of Broker caused by the maintenance or
operation of any driver or Car Carrier; or
(iv.)
any claim by any third party with respect to death, injury or property
damage caused by the maintenance or operation of any driver or Car
Carrier during the loading, transportation or unloading of Vehicles on
or from a Car Carrier.
6. Freight Loss, Damage or Delay
Broker shall submit to Carrier written notice of any cargo claim, including
loss or expense resulting from Carrier’s delay in providing service, within
the period of time that the Broker is potentially liable to the Broker’s
customer for processing valid claims, with the filing, processing and
disposition of all cargo claims shall be governed by 49 C.F.R. & 1005
et seq. The parties agree that federal common Carrier laws of liability
(i.e. Carmack Amendment liability) shall apply to all shipments being
transported by Carrier under this agreement. In addition, however, Carrier
shall be liable to Broker or Broker’s customers for any freight loss,
damage or delay claim as specified in Brokers agreement with Brokers
customers regarding damage claims, classification, severity, loss
determination and amount of claim determination.
7. Carrier is required to fully comply with all customer specific
shipping and damage policies as provided by Proficient Auto Transport.
Specific contractual language as it relates to claims between Broker
and Brokers Customer will be provided to Carrier by customer upon request.
8. Accidents.
If any accident occurs, claim is made or action is commenced for death,
personal injury or property damage resulting from the maintenance or
operation of any driver or Car Carrier while such driver or Car Carrier is
transporting Vehicles or engaged in other business involving the Vehicles,
Carrier promptly shall:
(a) Notify Broker thereof;
(b) Furnish to Broker on request a report of such accident; and
(c) Forward to Broker a copy of every demand, notice, summons or other process
received in connection therewith. Information on minor damages shall be
provided upon written request by Broker.
9. Payment by Broker.
Carrier will charge and Broker will pay for Transportation services
performed under this Agreement rates and charges as shown on the Rate
Confirmation Order and any written supplements or revisions thereto signed
and agreed to by CARRIER and BROKER. CARRIER shall bill BROKER within
thirty (30) days of delivery of the shipment. Payment by BROKER will be
made to CARRIER no later than 30 days from the first Friday following
receipt of an accurate invoice and signed delivery receipts, provided
CARRIER has given BROKER the necessary billing documents enabling BROKER to
ascertain that service has been provided at the agreed upon charge. In the
event service is provided and is subsequently discovered that there was no
applicable rate in the existing schedule of rates or supplements, the
parties agree that the rate paid by the BROKER and collected by the CARRIER
shall be the agreed contract rate. BROKER shall not be liable for any
transportation charges for which BROKER did not have primary responsibility
for payment under the circumstances surrounding the involved shipment.
CARRIER agrees that BROKER is solely liable for all freight charges related
to the transportation services provided herein and, as such, CARRIER agrees
to refrain from all collection efforts against shipper, receiver,
consignor, consignee or BROKER’S customers. Under no circumstances is the
Carrier to hold a vehicle/shipment as ransom or collateral for payment or
dispute resolution. BROKER may deduct from any payment any amount CARRIER
is indebted to BROKER, including freight loss, damage, delay of claims, and
loss of sale.
10. Arbitration
Any controversy or claim arising out of or relating to this Agreement, or
the breach thereof, shall be settled by arbitration in accordance with the
Rules of the American Arbitration Association, and judgment upon the award
rendered by the arbitrators may be entered in any court having jurisdiction
thereof. Any arbitration shall be conducted in Duval County, Florida. Any
arbitration hereunder shall be governed by the Federal Arbitration Act (9
U.S.C. § 1 et seq.) and not by any state law concerning arbitration. Each
party shall be responsible for its own attorney, expert, or other fees
unless applicable law provides otherwise. This provision shall survive the
termination and/or expiration of this Agreement.
11. Compliance
The parties agree that their performance under this Agreement shall comply
with all applicable federal and state statutes.
If any provision of this Agreement shall be declared void or unenforceable
by any judicial or administrative or administrative authority, or clearly
in conflict with any public policy, the validity of the other provisions of
this Agreement and of the entire Agreement shall not be affected thereby
and the affected provision of this Agreement shall be modified only to the
extent necessary to bring it within the applicable law.
12. Miscellaneous
(a) All notices with respect to this Agreement shall be personally delivered or
sent by a recognized overnight carrier or by registered mail, return
receipt requested, to the following address:
If to Broker to:
Attn: Proficient Auto Transport 10057 103rd Street
Jacksonville, Florida 32210
Attn: Randy Beggs
If to Carrier to the address listed above unless Carrier has notified Broker differently in writing.
(b) This Agreement may be modified only by a written amendment mutually agreed
to in writing, signed by both parties.
(c) This Agreement shall be interpreted according to the laws of the State of
Florida, without respect to its rules on conflict of laws.
(d) The parties hereto are independent contractors and nothing contained in
this Agreement shall be construed to place them in the relationship of
partners, principal and agent, employer/employee or joint venture. Both
parties will retain and exercise exclusive direction and control over the
management, properties and operation of their businesses.
(e) This Agreement and its Exhibits supersede all prior agreements between the
parties and any prior Agreements between Carrier and Broker.
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