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Exhibit 10.10
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Expediting & Logistics
Nations Express Inc.
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Print Name - Independent Contractor's Name
P.O. Box 19247
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Independent Contractor's Address
Charlotte, NC 28219
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City St Zip
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Signature of Carrier's Authorized
Agent or Employee
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Signature of Authorized Representative or Independent Contractor
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(DBA - Name that matches SS# or FID # used below)
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(Social Security Number or Federal I.D. Number
(This number will be used on Federal Form 1099)
Corporation _______ Individual ________ Partnership________
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IRS W-9 Certification: under penalties of perjury, I certify that the number
shown on this form is my correct tax payer identification number and I am not
subject to backup withholding according to the Internal Revenue Service (IRS).
MOTOR VEHICLE AND HAULING AGREEMENT BETWEEN INDEPENDENT CONTRACTOR AND NATIONS
EXPRESS INC. ("Agreement") (where applicable within this Agreement, the singular
shall be deemed to include the plural, and visa versa and the neuter gender
shall be deemed to include the masculine or feminine).
NATIONS EXPRESS INC. ("CARRIER") (ICC IDENTIFICATION # MC 335260 and
___________________________________________ ("INDEPENDENT CONTRACTOR") are
parties to a written MOTOR VEHICLE AND HAULING AGREEMENT BETWEEN INDEPENDENT
CONTRACTOR AND CARRIER (the "agreement") whereby INDEPENDENT CONTRACTOR has
contracted to CARRIER the equipment owned by INDEPENDENT CONTRACTOR, and
INDEPENDENT CONTRACTOR is providing CARRIER as operator or operators of the
Equipment for the purposes of loading, transporting and unloading freight. The
commodities transported under the Agreement are restricted to general
commodities (except Class A and B explosives, household goods, and hazardous
waste (excluding hazardous waste not subject to any type of governmental
regulations), between points in the United States.
1. EQUIPMENT: INDEPENDENT CONTRACTOR represents to CARRIER that it holds full
legal title to the equipment (Identification of Equipment) identified in
Paragraph (2), and further warrants and represents that the Equipment
covered by this Agreement is complete with all accessories required by law
and for safe operation of the Equipment and that the Equipment is in good,
safe and efficient operating condition as required by government
authorities and shall be so maintained at INDEPENDENT CONTRACTOR'S expense
throughout the duration of this Agreement. The choice of location and
persons to perform any necessary repairs or maintenance is exclusively
vested with INDEPENDENT CONTRACTOR, ALL POWER EQUIPMENT WHICH IS THE
SUBJECT OF THIS AGREEMENT IS TO BE SUPPLIED WITH U.S. DOT QUALIFIED
OPERATORS.
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2. IDENTIFICATION OF EQUIPMENT: UNIT NUMBER _______________________________
(TO BE ASSIGNED BY CARRIER UPON APPROVAL
BY THE GENERAL OFFICE)
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VEHICLE
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Make Model Year
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Serial No. License Number Year
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Empty Wt. No. of Axles Sleeper Yes No
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STRAIGHT TRUCK
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Load Capacity ____________________ lbs.
Cargo Box - Length ____________ Feet Height _________ Inches Width ___________ Inches
Rear Door Type: Rollup _______________ Swinging Doors ___________ Air Ride Suspension: Yes_____ No_____
Rear Door Height ________ Inches Rear Door Width ______________ Inches
Dock Height ____________ Inches Lift Gate: Yes ________ No ________
Securement Devices___________________________________________________________________________________________
(Pullet Puller) (Straps) (Other)
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CARGO VAN
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Load Capacity ____________________ lbs.
Rear Door Height ____________ Feet Rear Door Width ___________ Inches
Floor Length _______________ Inches Side Doors: Yes_____ No ______
Floor Width _______________ Inches Height _________ Inches Width _________ Inches
Securement Devices _______________________________________________________________________
(Pullet Puller) (Straps) (Other)
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RECEIPT OF EQUIPMENT: CARRIER hereby acknowledges receipt of the Equipment
described above, which is the Equipment described in the Agreement.
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Date _____________________________________ By ___________________________________________________
(TO BE ENTERED BY CARRIER'S AUTHORIZED AGENT OR EMPLOYEE UPON ARRIVAL BY THE GENERAL OFFICE)
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3. DURATION OF AGREEMENT: This Agreement shall be effective as of this date
entered above and shall remain in effect until terminated in accordance
with the provisions of this Agreement. The breach by either party of any
provisions of this Agreement shall immediately terminate all provisions of
this Agreement, except those provisions relating to indemnification of
CARRIER by INDEPENDENT CONTRACTOR including those contained in Paragraphs
10, 15, 18 and 19, which indemnification provisions shall be effective at
all times. Either party, by giving to the other party twenty-four (24)
hours written notice of termination, may terminate this Agreement at any
time.
4. EXCLUSIVE POSSESSION AND RESPONSIBILITIES: The parties recognize that it is
a requirement of federal law that the CARRIER shall assume complete
responsibility for the operation of the Equipment for the duration of the
Agreement. Accordingly, CARRIER shall be considered as the owner of the
Equipment for the purpose of subcontracting to other authorized carriers,
and there may be no subcontracting to any other carrier unless authorized
in writing by CARRIER in advance. CARRIER has no right to and will not
control the manner nor prescribe the method of doing that portion of the
operation which is contracted for in this Agreement by INDEPENDENT
CONTRACTOR, except such control as can reasonably be construed to be
required by all lawful regulations. INDEPENDENT CONTRACTOR, reserves the
right to accept or reject any freight tendered for transportation. Pursuant
to 49 C.F.R. & 1057.12(c)(4), this paragraph shall not be used in any
attempt to classify INDEPENDENT CONTRACTOR as an employee of CARRIER.
5. INDEPENDENT CONTRACTOR'S SHARE OF REVENUE:
(A) LINE HAUL REVENUE: Unless otherwise agreed, in writing on a particular
haul, an amount equal to 62% of the line haul revenue shown on the
freight bills, or amended bills, to the shippers, consignees, or other
carrier s for the commodities hauled by the INDEPENDENT CONTRACTOR.
(B) ACCESSORIAL CHARGES REVENUE: Unless otherwise agreed in writing on a
particular haul, an amount equal to ______% of the accessorial charges
billed to shippers or consignees for the commodities hauled by the
INDEPENDENT CONTRACTOR except that INDEPENDENT CONTRACTOR shall not be
paid any part of permit charges, special loading and unloading
equipment expenses, sufferance warehouse charges, and excess value
insurance costs, provided, however, that CARRIER'S obligation to pay
the percentage of any detention accessorial charge is conditioned on
(1) CARRIER receiving from INDEPENDENT CONTRACTOR a delivery receipt -
detention report signed by the shipper or consignee: and (2) DOT
required logs corresponding with the delivery receipt-detention
report.
(C) PROPORTIONATE HAULING REVENUE: For commodities that are not hauled by
the same contractor from the origin to the destination points
specified on the bill of lading of other shipping documents, the
delivering contractor will receive a
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pro-rate share of INDEPENDENT CONTRACTOR'S revenue applicable to the
haul based on the direct miles from the point of that INDEPENDENT
CONTRACTOR'S pick-up to destination, as compared to the direct miles
from origin to point of pick-up to destination.
(D) REVENUE DEDUCTIONS: The revenue payable to the INDEPENDENT CONTRACTOR
under Subparagraphs (A) through (C) above, shall be reduced by any and
all expenses CARRIER has borne that, under this Agreement, INDEPENDENT
CONTRACTOR is obligated to bear, including, but not limited to, the
following: (1) the amount of any cartage or local pick-up or delivery
charges or expenses incurred by CARRIER on the movement; (2) the
amount of any revenue paid by CARRIER to other contractor for the
movement under Subparagraph (C) of this paragraph; (3) the amount of
any access value charges; and (4) the stated percentage under
Subparagraph (A) above of any brokerage fees or commissioned agent
charges for the haul.
6. ESCROW: INDEPENDENT CONTRACTOR and CARRIER shall establish an escrow fund.
The total amount of such escrow fund shall in the amount of $____________
per unit and shall be paid by INDEPENDENT CONTRACTOR at the rate of not
more than $______________ per pay period. Such escrow fund shall be
returned to INDEPENDENT CONTRACTOR only upon termination of this Agreement
and the balance due shall be refunded no later than 45 days after such
termination. The escrow fund may at any time be applied by CARRIER to the
satisfaction of any claims or debts arising out of the operation and
pursuant to the terms of this Agreement including, but not limited to,
advances made to any employees of INDEPENDENT CONTRACTOR, cargo delay,
liability or property damage claims, insurance premiums, identification
devices and cash values of permits not returned to CARRIER. CARRIER will
provide an accounting to INDEPENDENT CONTRACTOR of any transaction
involving the escrow fund, which accounting shall be shown on the
settlement sheet produced at the time the transaction was made. INDEPENDENT
CONTRACTOR may at any time request and receive an accounting for
transactions involving the escrow fund.
7. PRE-TRIP SETTLEMENT / ATTORNEY IN FACT, INDEPENDENT CONTRACTOR specifically
appoints and authorizes CARRIER as its attorney-in-fact to pay, at
CARRIER's sole discretion, pre-trip settlement to INDEPENDENT CONTRACTOR's
drivers for operating expenses on behalf of INDEPENDENT CONTRACTOR. CARRIER
shall not be liable for any pre-trip settlement made to INDEPENDENT
CONTRACTOR'S drivers and such pre-trip settlements shall be deducted from
INDEPENDENT CONTRACTOR's revenue hereunder.
8. IDENTIFICATION DEVICES: All identification of CARRIER required by law or
regulation relating to identification shall be secured in the name of
CARRIER and shall be displayed on the Equipment in accordance with all
applicable regulations during the period this Agreement remains in effect.
All identification devices and documents are the sole property of CARRIER.
Any such identification shall be removed from said Equipment by INDEPENDENT
CONTRACTOR and returned to CARRIER by first class mail addressed to
CARRIER's address or in person immediately upon termination of this
Agreement. All identification cost shall be borne by INDEPENDENT
CONTRACTOR. INDEPENDENT CONTRACTOR shall also be responsible to CARRIER for
any loss of character suffered by CARRIER for failure to return such
identification.
9. RECEIPT FOR EQUIPMENT: Upon taking possession of the Equipment, CARRIER
shall furnish to INDEPENDENT CONTRACTOR a copy of this haulage agreement,
which shall be the receipt specified in 49 C.F.R. S 1057.11(b), and the
certification statement specified in 49 C.F.R. S 1057.11(c).
10. COST OF OPERATION: Except as specifically provided herein INDEPENDENT
CONTRACTOR shall furnish, provide and pay all costs of operations which
shall include, but not be limited to, the items listed in subparagraph (a)
through (k) of this paragraph and if CARRIER is called upon to pay any of
these costs, such payment shall be considered a pre-trip settlement to
INDEPENDENT CONTRACTOR (and a cost of operation) and CARRIER is entitled to
reimbursement.
(a) All motor fuel, oil, tires and all equipment, accessories, or devices
used in connection of the equipment;
(b) All maintenance costs including repairs;
(c) All taxes and assessments, premiums and other payments due by reason
of the payment by INDEPENDENT CONTRACTOR of wages or other earnings to
its employees;
(d) Base plates, including apportioned or prorated base plates, fuel
permits and all other permits required to operate the Equipment or any
of it legally (except overdimension/overweight permits), empty miles,
detention, accessorial charges, licenses, and all other tax payments
required of or on the Equipment or on the use or operation thereof,
including all reports required of INDEPENDENT CONTRACTOR connected
therewith, and all ferry, bridge and highway tolls;
(e) All fines and penalties resulting from acts or omissions of
INDEPENDENT CONTRACTOR and any monies paid by CARRIER in the form of
penalties to a government or regulatory body because of some act or
omission on the part of INDEPENDENT CONTRACTOR.
(f) Comprehensive insurance coverage for collision, fire and theft and any
other type of insurance not specially addressed herein, if INDEPENDENT
CONTRACTOR desires such coverage;
(g) Federal Highway Use Tax on the Equipment, Federal, State and City
Income Taxes and any Self-Employment Taxes;
(h) All sales, use, excise and other taxes due to ownership or operation
of Equipment in the jurisdiction imposing such taxes;
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(i) All other expenses incurred in the operation of the Equipment,
including, but not limited to, empty mileage, expenses incurred to
transfer load and/or secure additional equipment to complete delivery
in case of breakdown or delay;
(j) In the event that the duration of this Agreement is less than six
months, INDEPENDENT CONTRACTOR shall reimburse CARRIER for the cost of
decals, logos and all pre-qualification drug and alcohol test required
by law;
(k) Notwithstanding the above, CARRIER shall be responsible for and pay
fuel and mileage type taxes, which obligation shall not include retail
sales and use or federal excise type taxes.
11. LOADING AND UNLOADING: Where CARRIER's tariff requires that loading and/or
unloading be performed by CARRIER, INDEPENDENT CONTRACTOR shall be
responsible for and shall perform such loading and/or unloading at no
additional compensation (unless the loading and unloading is the subject of
an accessorial charge within the meaning of subparagraph 5 (b) above, in
which case the provisions of subparagraph 5 (b) shall apply):
12. Permits: All fuel permits and other permits issued in CARRIER's name shall
be returned to CARRIER on termination of this Agreement. CARRIER shall
refund INDEPENDENT CONTRACTOR any residual value permits as follows: The
amount refunded shall be either (1) the credit allowed by any state
allowing such credit or (2) the prorate cost for the balance of the life of
the permit where it is either reused by CARRIER or resold to another
entity. CARRIER need only use reasonable efforts to reuse or resell any
unused portion of returned permits. Where permits can neither be credited
or resold, no refund shall be made. INDEPENDENT CONTRACTOR shall be liable
to CARRIER for any expense, including reasonable attorney's fees, caused to
CARRIER by INDEPENDENT CONTRACTOR's failure to comply with this provision.
13. SETTLEMENTS: CARRIER shall settle with INDEPENDENT CONTRACTOR on the 15th
and last day of each month, there will be a 2 week lag in INDEPENDENT
CONTRACTOR settlements. All paperwork turned in for trips completed between
the 1st and the 15th of the month, will be settled on the last day of the
current month, providing paperwork is in the Corporate office by the 20th
day of the month. All paperwork turned in for trips completed between the
15th and the end of the month, will be settled on the 15th day of the
following month, providing paperwork is in the Corporate office by the 5th
day of the month. INDEPENDENT CONTRACTOR must submit a settlement sheet,
bill of lading, signed delivery receipt, trip mileage report, and driver
daily logs as required by the regulations of the U.S. department of
Transportation (DOT) or any state or provincial authority having
jurisdiction, and in the case of C.O.D. hauls, delivery of certified check
or money order to CARRIER. CARRIER will hold the final settlement due under
this Agreement until INDEPENDENT CONTRACTOR delivers to CARRIER the
identification devices INDEPENDENT CONTRACTOR is required to return to
CARRIER pursuant to Paragraph 8. In the event that the identification
devices are lost or stolen, a letter certify their removal, and the
satisfaction of any other reasonable requirement made by CARRIER, will
satisfy the requirement to return said devices for the purpose of the
timing of final settlement.
14. INSPECTION OF FREIGHT DOCUMENTS: CARRIER will furnish INDEPENDENT
CONTRACTOR, at or before the time of settlement, a computer-generated
document containing the same information as a freight bill, or INDEPENDENT
CONTRACTOR may view during business hours a copy of any actual document
underlying the computer-generated document. CARRIER may at its discretion
delete the names of shippers and consignees shown on any such underlying
document to be inspected by INDEPENDENT CONTRACTOR.
15. PRE-TRIP SETTLEMENTS: In any case where INDEPENDENT CONTRACTOR has secured
a Pre-trip settlement of any kind from CARRIER, or if there shall be any
other amounts due CARRIER from INDEPENDENT CONTRACTOR, or INDEPENDENT
CONTRACTOR's agents or employee for any reason whatsoever, or any
deductions for any insurance payment authorized by INDEPENDENT CONTRACTOR,
CARRIER shall be authorized to deduct the amount of such pre-trip
settlements or other amount due CARRIER from any trip settlement, from the
escrow fund, or from any monies due or becoming due to INDEPENDENT
CONTRACTOR from CARRIER under this Agreement, and if such monies shall be
sufficient to cover the sum due CARRIER, then INDEPENDENT CONTRACTOR will
on demand pay to CARRIER all sums remaining due CARRIER. INDEPENDENT
CONTRACTOR, its agents or employees shall not charge any purchases to
CARRIER and if, in violation of this paragraph, INDEPENDENT CONTRACTOR, or
its employees or agent shall charge any purchase to CARRIER and if CARRIER
shall be called upon to pay the parties acknowledge that in addition to any
other remedy available to CARRIER under this Agreement, such sums paid by
CARRIER be treated as pre-trip settlements made to INDEPENDENT CONTRACTOR
and shall be recoverable under the terms hereof. CARRIER shall furnish
INDEPENDENT CONTRACTOR a written explanation and itemization of all such
deductions.
16. CHARGE BACKS: CARRIER shall charge back to INDEPENDENT CONTRACTOR at time
of payment or settlement, any expenses CARRIER has borne that, under this
Agreement, INDEPENDENT CONTRACTOR is obligated to bear. Such expenses shall
be deducted from the amount of INDEPENDENT CONTRACTOR's compensation and
shall include but not limited to, those expenses set forth in this
Agreement as well as all comcheck (or similar service) pre-trip
settlements, all pre-trip settlements deposited electronically on a debit
card (Nations Express Card) and all pre-trip settlements given after a
shipment has been rendered by CARRIER and accepted by INDEPENDENT
CONTRACTOR, C.O.D., and freight collect remittance due CARRIER. CARRIER's
expense in obtaining and administering any insurance coverage on behalf of
INDEPENDENT CONTRACTOR, required under subparagraph 8 (a) hereunder, cargo
claims, public liability damage (laden or unladen), property damage, delay
claims, communication system costs, trailer utilization fees, overweight
service fees, advances, overpayments in prior payments or settlements,
towing charges, insurance deductibles, reasonable attorney's fees incurred
in reducing potential liabilities arising out of, or in connection with
INDEPENDENT CONTRACTOR's actions or failure to act under the terms of the
Agreement, and all state tax licenses, plates, permits, and stamps. CARRIER
shall provide INDEPENDENT CONTRACTOR with a written explanation and
itemization of any charge back deduction taken from compensation, money
owed INDEPENDENT CONTRACTOR or money held in escrow before such a deduction
is made. If INDEPENDENT CONTRACTOR has entered into agreements with CARRIER
other than this Agreement, then INDEPENDENT CONTRACTOR understands and
acknowledges that CARRIER may charge back to INDEPENDENT CONTRACTOR under
this Agreement at the time of payment or settlement, any expense CARRIER
has borne
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under such agreement that INDEPENDENT CONTRACTOR is obligated to bear, or
that is due and owing to CARRIER under such agreement.
17. SELECTION OF INDEPENDENT CONTRACTOR's SUPPLIERS: INDEPENDENT CONTRACTOR is
not required to purchase or rent any products, equipment or services from
CARRIER as a condition of entering this Agreement.
18. INSURANCE AND CLAIMS: The parties hereto understand that under the
regulations of Interstate Commerce Commission, CARRIER is required and
agrees to maintain insurance coverage for the public pursuant to Commission
Regulations under 49 U.S.C.ss.10927 and that CARRIER's policy will satisfy
the ICC requirements. INDEPENDENT CONTRACTOR shall be responsible for 80%
(percent) of the general liability and non-trucking (bobtail unladen)
insurance cost for each individual piece of Equipment that the INDEPENDENT
CONTRACTOR has leased with NATIONS EXPRESS INC., CARRIER's policy maintains
no fault where required, uninsured motorist, or underinsured motorist
coverage, no additional policy will be required to be purchased.
INDEPENDENT CONTRACTOR shall indemnity and hold CARRIER harmless from any
and all claims, losses, damages or expenses, including reasonable
attorney's fees, sustained if the Equipment or any part of it, or any
equipment provided by CARRIER, is not being operated on behalf of CARRIER.
In addition to pursuing all rights available under law or equity, CARRIER
may withhold payment of any and all sums then and thereunder due
INDEPENDENT CONTRACTOR to the extent of such claims, losses, damages or
expenses or to a reasonable estimate there of until their final
determination, which shall then be deducted to the satisfaction thereof,
and if monies due INDEPENDENT CONTRACTOR shall be insufficient, INDEPENDENT
CONTRACTOR shall pay on demand all remaining sums due CARRIER.
(a) INDEPENDENT CONTRACTOR shall procure, carry and maintain public
liability and property damage insurance whenever the Equipment is or
is not being operated on behalf of CARRIER in a combined single limit
of not less than One Million Dollars ($1,000,000.00) for injury to any
person or for damages to property in any one occurrence. INDEPENDENT
CONTRACTOR's policy shall name CARRIER and affiliates as additional
insureds, and shall provide (1) for waiver of underwriter's
subrogation rights against each such additional insured, (2) shall
apply whenever the Equipment is either under a load, bobtailing or
deadheading, and (3) shall be primary with respects to all insureds.
INDEPENDENT CONTRACTOR expressly acknowledges that it shall be solely
responsible for any loss in excess of the policy limit. To the extent
INDEPENDENT CONTRACTOR does not provide CARRIER with a copy of a
General Liability Policy including, Non-Trucking Use - Broad Form
Unladen Policy satisfying the above criteria. INDEPENDENT CONTRACTOR
understands and agrees that in consideration for being covered by
CARRIER'S POLICY and/or CARRIER assuming liability for any loss within
the applicable self-retention amount, CARRIER shall be authorized to
lessen INDEPENDENT CONTRACTOR's line haul revenue in accordance with
the provisions of subparagraph 5(a) of this Agreement. If CARRIER
provides such coverage to INDEPENDENT CONTRACTOR, INDEPENDENT
CONTRACTOR shall receive a Certificate of Insurance evidencing the
aforementioned policy, the name of the insurer, the policy number, the
effective dates of the policy and the amounts of coverage. CARRIER is,
and shall be, the agent/representative of INDEPENDENT CONTRACTOR
regarding acquisition and termination or cancellation of the
certificate and for deduction of the cost. In the event the premium
shall change or vary, as determined by the insurer. CARRIER shall
advise INDEPENDENT CONTRACTOR of such change in premium and deduction
in writing and INDEPENDENT CONTRACTOR'S failure to object in writing
or terminate the coverage provided shall constitute and express
consent and authorization to CARRIER to deduct and charge the
INDEPENDENT CONTRACTOR back for such revised amount, INDEPENDENT
CONTRACTOR may cancel the Certificate of Insurance at any time as
INDEPENDENT CONTRACTOR elects by written notice to CARRIER, provided,
however, that such cancellation does not affect INDEPENDENT
CONTRACTOR'S obligations and undertaking in this Agreement with
CARRIER. INDEPENDENT CONTRACTOR understands that the Policy referred
to in this paragraph would not apply to injury or damage to
INDEPENDENT CONTRACTOR, its agents or employees, nor to collision or
comprehensive coverage to the Equipment and it is further understood
that if INDEPENDENT CONTRACTOR desires or is required to have such
coverage it shall have the duty to obtain it and pay for it.
(b) If INDEPENDENT CONTRACTOR elects to purchase physical damage coverage
on the Equipment through CARRIER, paragraph 16 of this Agreement shall
apply to such election. CARRIER shall not be liable for any loss of or
damage to the Equipment and INDEPENDENT CONTRACTOR waives all claims
it may have in the future against CARRIER for loss or damage to any or
all of the Equipment. If INDEPENDENT CONTRACTOR elects to purchase the
insurance coverage referred to in this subparagraph. CARRIER (1) will
furnish INDEPENDENT CONTRACTOR a copy of the policy upon request and
(2) will arrange for a certificate or insurance to be furnished
INDEPENDENT CONTRACTOR said certificate to show the name of the
insurer, the policy number, the effective dates of the policy, the
amounts and types of coverage, the cost to INDEPENDENT CONTRACTOR for
each type or coverage and the deductible amount for which INDEPENDENT
CONTRACTOR may be liable. If INDEPENDENT CONTRACTOR has requested
CARRIER to obtain on INDEPENDENT CONTRACTOR's behalf and at its
expense physical damage coverage on the Equipment, the terms and
conditions and the amounts of premiums payable therefor shall be set
forth in the application for PHYSICAL DAMAGE INSURANCE. It shall be
INDEPENDENT CONTRACTOR's sole responsibility to review and confirm the
terms of the policy, raise any questions or objections thereto and
CARRIER shall have no obligation to provide any specific policy or
terms and conditions.
(c) INDEPENDENT CONTRACTOR shall be responsible for any public liability
claim or property damage claim, including any legal or other expenses
related thereto, that arises out of INDEPENDENT CONTRACTOR's or its
agents or employees operation or use of the Equipment. INDEPENDENT
CONTRACTOR's responsibility for such claims shall be limited to a
maximum of One Thousand Dollars ($1,000.00) per each type of claim.
INDEPENDENT CONTRACTOR may be relieved of such responsibility if, at
CARRIER's sole discretion, CARRIER determines that the claim is
non-chargeable.
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(d) INDEPENDENT CONTRACTOR shall be responsible for any claims resulting
from cargo shortages, cargo damage, or delays in transporting
shipments due to its fault, provided, however that INDEPENDENT
CONTRACTOR's liability shall be limited as specified. INDEPENDENT
CONTRACTOR will be charged a maximum of One Thousand Dollars
$1,000.00) per shipment for loss, damage or delay to cargo for
negligence as determined by CARRIER. CARRIER will provide INDEPENDENT
CONTRACTOR with a written explanation and itemization of any; intended
deduction for cargo loss or damage or delays in transportation made
from money owed to INDEPENDENT CONTRACTOR before deduction is made.
(e) INDEPENDENT CONTRACTOR is responsible for all cost of cleaning up any
accident or spills involving the Equipment of the INDEPENDENT
CONTRACTOR haulage.
19. HOLD HARMLESS: INDEPENDENT CONTRACTOR agrees to defend, indemnify and hold
harmless CARRIER from any direct, indirect and consequential loss, damage,
fine, expense, including reasonable attorney's fees, action, claim for
injury to persons, including death, and damage to property which CARRIER
may incur arising out of or in connection with INDEPENDENT CONTRACTOR's
obligations and/or haulage under this Agreement, excluding any loss
resulting solely from the negligent act or omission of CARRIER, its
officers, agents or employees.
20. WORKER'S COMPENSATION: This Agreement is intended by the parties to create
the relationship of CARRIER and INDEPENDENT CONTRACTOR and not that of an
employer/employee nor master/servant relationship. As such, neither
INDEPENDENT CONTRACTOR nor INDEPENDENT CONTRACTOR's employees or agents are
entitled to Worker's Compensation coverage or benefits from CARRIER.
Neither INDEPENDENT CONTRACTOR nor its employees, agents or servants, nor
any individual providing any services of any kind to INDEPENDENT
CONTRACTOR, are to be considered employee of CARRIER at any time, under any
circumstance or for any purpose. INDEPENDENT CONTRACTOR shall assume full
and complete responsibility for all employees employed by it in the
performance of all duties and obligations under this Agreement.
21. NO UNAUTHORIZED PASSENGERS/NO MORE THAN ONE AUTHORIZED PASSENGER AT A TIME:
No passenger shall be permitted to travel in the Equipment without prior
written authorization from CARRIER. Passenger must be minimum of 18 years
of age, and must sign a waiver of liability as provided in the Passenger
Authorization Form to be provided by CARRIER. In no event shall more than
one authorized passenger be permitted at any time. INDEPENDENT CONTRACTOR's
may obtain a annual Passenger Authorization Form for Spouse, all other
Passenger Authorization Forms will be reviewed on a individual basis
depending on relationship to INDEPENDENT CONTRACTOR or INDEPENDENT
CONTRACTOR's employee or agent. CARRIER will require a photo ID
(identification) on file for each passenger.
22. REFLECTIVE TAPE MARKINGS: INDEPENDENT CONTRACTOR agrees that all equipment,
provide to CARRIER by INDEPENDENT CONTRACTOR shall be properly marked with
reflective tap as specified by CARRIER.
23. INSPECTION OF EQUIPMENT: INDEPENDENT CONTRACTOR: shall, submit at its
expense, the Equipment for inspection at the time this Agreement is
executed. There after as required by regulatory agencies, INDEPENDENT
CONTRACTOR will submit the Equipment for inspection no later than every
one-hundred-twenty (120) days, at the INDEPENDENT CONTRACTOR's expense. If
the initial inspection provided for in this paragraph reveals that the
Equipment does not comply with any aspect of applicable government
requirements, this Agreement shall not go into effect until the Equipment
fully complies with said government requirements at INDEPENDENT
CONTRACTOR's expense. If any inspection conducted after this Agreement goes
in to effect reveals that any of the Equipment does not comply with any
aspect of applicable government requirements, the Equipment must be made to
comply with said requirements by INDEPENDENT CONTRACTOR at its expense
within a reasonable time as determined by CARRIER.
24. MAINTENANCE RECORDS: INDEPENDENT CONTRACTOR shall, as directed by CARRIER,
forward to CARRIER all maintenance records covering the Equipment required
by regulations of the Department of Transportation.
25. PROCEDURES FOR SUBCONTRACTING: As noted in paragraph 4, it is a requirement
of federal law that CARRIER shall have exclusive possession, control, and
use of the Equipment for the duration of the Agreement, and that CARRIER
shall assume responsibility for the operation of the Equipment for the
duration of this Agreement, it is further noted in Paragraph 4 that CARRIER
shall be considered as owner of the Equipment for the purpose of
subcontracting to other authorized carriers, and there may be no
subcontracting to any other carrier unless authorized in advance. CARRIER
recognizes, however, that INDEPENDENT CONTRACTOR may wish from time to time
to arrange for the subcontracting of its Equipment and services to other
carriers, and in such cases INDEPENDENT CONTRACTOR agrees that the
following procedures shall be followed. As a condition precedent to
entering into an arrangement with carriers other than CARRIER, INDEPENDENT
CONTRACTOR shall: (a) obtain valid carrier information (name, address,
[CC/MC number, phone number, contact name of carrier); (b) call CARRIER's
main office and provide CARRIER with information about the carrier and
about the load; (c) receive and record release number, if trip lease is
approved. In the event a carrier is not approved, a release number will not
be given and INDEPENDENT CONTRACTOR may not enter into a trip-lease
agreement; (d) any payments in advance offered to INDEPENDENT CONTRACTOR by
any other carrier must be refused; (e) Present the and Indemnification Form
attached hereto to such carriers and that such carriers sign and return the
Acknowledgment and Indemnification form to CARRIER prior to transport of
any load under the trip-lease. Upon delivery of the load, INDEPENDENT
CONTRACTOR shall: (a) obtain a signed proof of deliver; (b) indicate
release number on each piece of paper work; and (c) mail all paperwork,
including a copy of the signed-off trip-lease agreement, placards, shipping
order or bill of lading, delivery receipt and logs to CARRIER, attention of
CARRIER Contractor Settlements. In the event that INDEPENDENT CONTRACTOR
subcontracts without CARRIER's approval and without CARRIER's authorized
release number, in addition to any other right, remedy or claim CARRIER may
have against INDEPENDENT CONTRACTOR for INDEPENDENT CONTRACTOR's failure to
obtain the required approval and authorization of CARRIER, INDEPENDENT
CONTRACTOR shall be charged back the amount of 12% of the revenue.
<PAGE>
26. AUTHORIZED USE OF EQUIPMENT: If, during the period of time this agreement
is in effect, INDEPENDENT CONTRACTOR, or any employee or agent of
INDEPENDENT CONTRACTOR is operating any of the Equipment covered by this
Agreement in any manner varying from the regulations or beyond the scope of
the operating authority of CARRIER, or is using any of said equipment for
its own purposes or for the purposes of persons, firms or corporations
other than CARRIER (except pursuant to subcontracts approved in advance by
CARRIER as provided herein), or for any other purpose not permitted by this
Agreement, then this Agreement and each and every provision hereof, (except
those provisions relating to indemnification of CARRIER by INDEPENDENT
CONTRACTOR as set forth in this Agreement including paragraphs 10, 15, and
18 of this Agreement, which indemnification provisions shall be effective
at all times) shall at CARRIER's option, be deemed terminated as of the
time that such unauthorized use occurred, and all obligations and
liabilities of CARRIER under this Agreement shall be deemed to have ceased
and terminated as of the time that such unauthorized use.
27. DUE DILIGENCE AND COOPERATION WITH CARRIER ON CLAIMS: INDEPENDENT
CONTRACTOR warrants that cargo which is loaded on the Equipment shall be
delivered to the consignee with reasonable diligence, speed and care as
required by shipper or in bills of lading. INDEPENDENT CONTRACTOR shall
report all accidents, cargo exceptions or damages of any nature
immediately. INDEPENDENT CONTRACTOR shall also provide written reports,
affidavits or other assistance as may be deemed necessary to investigate,
settle or litigate any accident, claim or potential claim, by or against
CARRIER.
28. FEE AND OTHER ADJUSTMENTS: All fees and rates of INDEPENDENT CONTRACTOR'S
Share of Revenue herein are subject to adjustment by CARRIER. No less than
fifteen (15) days prior to any adjustment INDEPENDENT CONTRACTOR will be
notified in writing by CARRIER of the adjustment, the amount of adjustment
and the date of adjustment is proposed to take effect. If INDEPENDENT
CONTRACTOR does not agree to the fee or rate change, it shall notify
CARRIER on or before the proposed effective date of adjustment. Acceptance
of a tender after the proposed effective date of the adjustment will
indicate understanding and acceptance by INDEPENDENT CONTRACTOR of the new
rate amount.
29. C.O.D. SHIPMENTS: In handling C.O.D. or order/notify shipments, INDEPENDENT
CONTRACTOR, its agent or employees, will perform as indicated on the
shipping order, will call the originating terminal to report the C.O.D. or
order/notify shipment, and will accept only a certified check, cashiers
check or money order made payable to CARRIER for the shipment and will
remit to CARRIER no later than the business day next following the day of
delivery the full amount specified on the freight bill, including
transportation and C.O.D. charges. In the event that INDEPENDENT CONTRACTOR
accepts any other method of payment INDEPENDENT CONTRACTOR shall bear the
risk of loss. In the event of nondelivery of such a shipment, INDEPENDENT
CONTRACTOR, or its agent or employee will advise CARRIER of such
nondelivery no later than the business day next following the day of
attempted delivery or collection.
30. INDEPENDENT CONTRACTOR RELATIONSHIPS: In recognition of the INDEPENDENT
CONTRACTOR relationship which exists between the parties, it is
acknowledged that INDEPENDENT CONTRACTOR has the right to determine the
manner and means of performing all haulage hereunder. INDEPENDENT
CONTRACTOR has the right to decide what haulage to perform under this
Agreement; provided however, that when a load is accepted by INDEPENDENT
CONTRACTOR the haulage will be performed in accordance with the terms of
shipper and consignee for the transportation of the cargo as well as
applicable law as and governmental regulations including the federal
Uniform Bills of Lading Act. The parties have so provided in this Agreement
and in this paragraph in recognition of the various circumstance that may
develop in the haulage performed under this Agreement, and both parties
acknowledge that their respective acts and omissions in their performance
under this Agreement are only to be construed, received and acted upon by
the other in the context of the INDEPENDENT CONTRACTOR relationship
provided for herein with each party retaining control of the manner and
means to perform respectively its obligations under this Agreement. The
terms of this paragraph shall be controlling and govern the interpreting,
construing and applying of this Agreement and the performance of the
parties hereunder.
31. EQUAL EMPLOYMENT OPPORTUNITY: The services and Equipment specified herein
will be furnished by INDEPENDENT CONTRACTOR in full compliance with all
applicable federal, state and local laws and regulations pertaining to
government contracts and subcontracts, including, without limitation,
Executive Order 11246. Where applicable, a separate certificate of
compliance with certain laws, regulations and Executive Orders must be
executed by INDEPENDENT CONTRACTOR, and said certificate to be supplied by
the CARRIER, will also include additional terms and conditions, which,
where required by law, regulations or Executive Order, shall be deemed to
be incorporated into this Agreement by reference and shall be made an
internal and binding part hereof.
32. ENTIRE AGREEMENT: This agreement contains the entire agreement between
CARRIER and INDEPENDENT CONTRACTOR and supersedes, cancels and revokes all
other contracts between the parties relating to the Equipment. There are no
representation or warranties, either oral or written, except those
contained in this Agreement. The provisions of this Agreement may be
modified only by written agreement executed by the party against whom
enforcement of such modification is sought.
33. SEPARABILITY AND SAVINGS: If any sections or parts of sections of this
Agreement shall be held to be invalid for any reason whatsoever, the
provisions of this Agreement shall be void only as to such section,
sections or part or parts of sections, and this agreement shall remain
otherwise binding between the parties hereto. Any section, or part or parts
or sections voided by operation of the foregoing shall be replaced with
provisions which shall be as close as the parties original intent as
permitted under applicable law.
34. NON-WAIVER: The failure or refusal of either party to insist upon the
strict performance of any provision of this Agreement, or to exercise any
right in any one or more instances or circumstance shall be construed as a
waiver or relinquishment of such provision or right, nor shall such failure
or refusal be deemed a custom or practice contrary to such provision or
right.
35. NOTICES: Any notice required or permitted by this Agreement shall be deemed
conclusively to have been given when deposited in the United States mail
properly addressed with first class postage prepaid. The address of each
party shall be first set forth herein, and
<PAGE>
the address to which notices are to be sent may be changed by providing the
other party written notice of change of address. Where INDEPENDENT
CONTRACTOR provides notice of change of its address, the change of address
will be effective upon CARRIER's sending acknowledgement of the notice.
36. Acceptance of tender of load after the effective date of this Agreement
will indicate understanding and acceptance by INDEPENDENT CONTRACTOR of the
terms and conditions set forth herein.
37. TERMINATION: The INDEPENDENT CONTRACTOR will, at the time this Contract is
terminated, remove all CARRIER identification and property including but
not limited to placards, single state registration statement, permits and
receipts to the Corporate Office in Charlotte, North Carolina.
If the INDEPENDENT CONTRACTOR fails to return CARRIER'S property or freight
to CARRIER or remove all CARRIER identification from the equipment to
CARRIER with fifteen (15) days after termination of this Contract,
INDEPENDENT CONTRACTOR will pay CARRIER an initial payment of damages in
the amount of One Thousand Dollars ($1,000.00) and CARRIER may pursue all
other remedies against INDEPENDENT CONTRACTOR.
If INDEPENDENT CONTRACTOR fails to perform its obligation under this
Contract, CARRIER may, in addition to any other remedy provided by law or
under this Contract, complete INDEPENDENT CONTRACTOR's obligations and
charge INDEPENDENT CONTRACTOR for any expenses associated with completing
INDEPENDENT CONTRACTOR'S obligations.
