THIS AGREEMENT ("Agreement") is dated as of
_____________, 200____ between ________________________________
including its subsidiaries (collectively, "Shipper"), and
Dick Harris and Son Trucking Co., Inc. (Carrier).
Carrier agrees to transport by motor vehicle as and when requested
by Shipper, commodities shipped and/or received by Shipper, upon the
following terms and conditions:
1. Term; Termination. This Agreement shall become effective
on _____________, 200____ for a period of one year and shall continue
from year to year thereafter, subject to the right of either party to
terminate this Agreement at any time upon not less than 30 days prior
written notice to the other. In addition, this Agreement shall be
terminated automatically upon (i) the effective date of any order of
the Department of Transportation, or other regulatory body, canceling
or revoking Carrier’s operating authority or (ii) the designation of
an unsatisfactory safety rating by the Department of Transportation.
2. Transportation Requirements.
(a) Shipper agrees to tender for transportation and Carrier agrees
to transport for Shipper, within the scope of Carrier’s operating
authority such shipments of product as Shipper shall determine
necessary on an as needed basis. Carrier agrees to accept such tender
and to transport and deliver products promptly and efficiently in
accordance with the instructions of Shipper and to the destination
determined by Shipper. The actual number of shipments and products to
be shipped shall be determined by Shipper. Except as agreed to by
Shipper, Carrier shall be prohibited from utilizing any other motor
carrier, intermediary or transportation entity to transport the
shipments contemplated hereunder. The terms and conditions of the
Standard Truckload Bill of Lading shall apply to the extent not
inconsistent with this Agreement.
(b) Shipper at or prior to receipt of products by Carrier, shall
provide Carrier a shipping document ("Shipping Document")
and any other documents necessary for Carrier to take possession of
the products and accomplish delivery. Such Shipping Document shall
contain all relevant delivery instructions and a complete description
of the shipment and its markings. The Shipping Document need not have
any specific form or format. The use of the Shipping Document is for
the convenience of Shipper and Carrier to acknowledge Carrier’s
receipt of the shipment and to provide Carrier necessary information
to perform under this Agreement. Any information, instruction or
provision appearing on the Shipping Document, or the use of any form
or bill of lading contract as the Shipping Document, shall not alter,
modify or amend the parties’ obligation under this Agreement and any
language appearing in such a Shipping Document which is in addition to
or inconsistent with this Agreement shall have no force or effect.
3. Rates and Charges. Carrier agrees to accept as full
consideration for all transportation services performed under this
Agreement, compensation at the rates, fees and accessorial charges set
forth by Shipper. Any rates, rules, charges in tariffs, schedules,
rate quotations, or other pricing documents published or maintained by
Carrier, whether filed or not filed with any regulatory agency, will
not apply to the shipments hereunder unless such rates, rules, charges
in tariffs, schedules, rate quotations or other pricing is
specifically agreed to in writing by Shipper and attached hereto as an
amendment to the Agreement.
4. Vehicles. Carrier, at its sole cost and expense, shall
provide personnel, trucks, tractors, trailers and equipment for use in
the services to be performed hereunder, which shall be adequate and
suitable to carry Shipper’ products and which shall be satisfactory
to Shipper. All such vehicles shall remain under the care, custody and
control of Carrier while performing the services required under the
Agreement. Carrier shall maintain such vehicles and equipment in good,
efficient and safe condition, both as to operation and appearance.
Shipper or a Shipper vendor may reject any equipment that in its
opinion is not suitable for the safe and suitable transportation of
products tendered hereunder for transportation. Carrier shall procure,
maintain and make payment for such licenses, taxes, fees and permits
as are required by federal, state, or local governmental agencies with
respect to such transportation services and shall comply with all laws
and regulations of any such agency applicable thereto.
5. Trailers. From time to time, Shipper may request that
Carrier agree to haul trailers owned by Shipper. In the event that
Carrier agrees to haul such trailers, Carrier shall have each of its
employees that participate in such activity successfully complete the
training program for unloading such trailers,
6. Loss and Damage.
(a) Carrier agrees that, in the transportation of all goods
hereunder, it assumes the liability of a common carrier for full
actual loss, subject to the provisions of 49 U.S.C. § 14706 ("Carmack
Amendment") and 49 C.F.R. § 1005 (claim regulations), such
liability to exist from the time of the receipt of any of said goods
by Carrier until proper delivery has been made.
(b) Carrier’s liability shall be for the original invoice value
or the destination wholesale market value of the goods lost or damaged
in the quantity shipped, whichever is higher, whether or not lost or
damaged enroute to a purchaser. Carrier shall also be liable for
Shipper administrative expenses incurred in connection with the filing
of claims against Carrier, plus a proportion of the freight charges
for the whole shipment, equal to the ratio of the weight of lost or
damaged goods to the weight of the entire shipment. Carrier’s
maximum liability for cargo loss or damage shall be $100,000 per
truckload unless otherwise agreed in writing.
(c) Carrier’s liability shall begin when it signs the
Shipping Documents and
no other action or documents are needed to tender the shipment to
Carrier. Carrier’s liability shall end when the shipment is unloaded
at the final destination as established by Shipper.
7. Overcharge and Undercharge. Any claim for undercharge or
overcharge made by parties to this Agreement must be filed within 180
days from date of delivery of products. Payment or denial notice must
be made in writing within 30 days from receipt of claim.
8. Indemnity and Insurance.
(a) Carrier agrees to indemnify, defend and hold Shipper harmless
from and against any and all claims, demands, liabilities, damages
(except with respect to cargo as set forth in Paragraph 6), losses,
judgments, awards, causes of action at law or in equity (as well as
reasonable attorney’s fees), for death of or injury to persons or
loss of or damage to property, by whomsoever owned, to the extent
caused by (i) the negligent loading, unloading, transportation and
delivery by Carrier, its employees, agents, representatives and/or
subcontractors, of the products tendered by Shipper to Carrier
hereunder, or (ii) the negligent acts or omissions of Carrier, its
employees, agents, representatives and/or subcontractors in connection
with the performance of their respective duties/obligations under
hereunder.
(b) Carrier shall, while this Agreement is in force, procure and
maintain in effect, with companies reasonably satisfactory to Shipper
the following types of insurance:
(i) Workers’ compensation insurance with statutory
limits and employers’ liability insurance with the
following limits: Bodily Injury by Accident-$100,000 each
accident;
(ii) Comprehensive General Liability Insurance with
limits of liability not less than $1,000,000 combined single
limit per occurrence for bodily injury and property damage.
(iii) Comprehensive Automobile and Truck Liability
Insurance with limits of liability of not less than
$1,000,000 combined single limit per occurrence for bodily
injury and property damage, insuring all motor vehicles used
by Carrier in the performance of its obligations hereunder,
whether such vehicles are owned, non-owned, or hired.
(iv) All-Risk Motor Cargo Insurance for the full
insurable value of all products transported from time to
time for Shipper by Carrier with a minimum level of
$100,000.
(v) If Carrier is required to haul trailers for SHIPPER
(whether owned or leased), Carrier shall also obtain an
endorsement to its Comprehensive Automobile and Truck
Liability Insurance for trailer interchange comprehensive
and collision coverages with a limit of not less than
$75,000.
9. Payment of Bills. Carrier shall promptly transmit by
email, fax or mail invoices for services rendered upon completion of
such services and SHIPPER shall pay such invoices within 30 days from
the date of receipt without offset. Delinquent invoices shall be
subject to interest at the rate of 1½% per month and attorney’s
fees in the amount of 30% in the event payment is not received within
60 days.
10. Status of Carrier.
(a) The relationship between the parties (and including the drivers
and employees of Carrier) shall, at all times, be that of independent
contractors and such status shall govern all relationships between
Carrier and SHIPPER.
(b) Carrier represents that it is a duly qualified contract motor
carrier in interstate commerce under Permit No. __________ issued by
the Department of Transportation. Carrier shall furnish to SHIPPER
copies of Carrier’s permits or authority to transport the products
as issued by state or federal regulatory agencies.
c) Carrier assumes full responsibility for the payment of all
local, state and federal payroll taxes, federal social security taxes,
contributions or taxes for unemployment insurance, workers’
compensation insurance premiums and any other obligation of an
employer under applicable law with respect to the persons engaged in
the performance of transportation services hereunder and Carrier
agrees to comply with all applicable rules and regulations promulgated
under federal, state and local laws and regulations now in force or
hereinafter enacted.
11. Assignments; Successors. This Agreement shall not be
assigned by Carrier without the prior written consent of Shipper. The
terms of this Agreement shall inure to the benefit of and be binding
upon SHIPPER and Carrier and their respective legal representatives
and successors.
12. Entire Agreement; Waiver. The term "Agreement"
as used herein, shall be deemed to include this instrument and all
exhibits hereto. It is further agreed that there are no oral
representations, agreements or understandings affecting this
instrument; that any further representations, agreements,
understandings, or waivers to be binding upon the parties hereto must
be reduced to writing and attached hereto; and either party’s
failure strictly to enforce any provisions of this Agreement shall not
be construed as a waiver thereof or as excusing the other party from
future performance.
13. Invalidity. If any provision of this Agreement is deemed
invalid or unenforceable, the validity and enforceability of all other
provisions hereof shall not be affected thereby.
14. Force Majeure. Neither party hereto shall be liable to
the other for default in the performance of any of the terms and
provisions hereof if caused by fire, strikes or labor disputes, riot,
war, Acts of God, governmental order or regulation, or other similar
contingency beyond the reasonable control of the respective parties;
provided, however, that nothing in this Section shall relieve Carrier
from its liability to Shipper for the full actual loss, damage or
injury to the goods shipped as provided in Section 6 hereof unless
such loss, damage or injury is caused by the sole negligence of
Shipper.
15. Notices. Any and all notices required or permitted to be
given under this Agreement shall be in writing and shall be delivered
to the party entitled to receive the same by hand, by first-class U.S.
mail, postage prepaid, or by telecopier (with hard copy mailed) to the
address indicated below:
To SHIPPER: _________________________________
_________________________________
_________________________________
_________________________________
Attn: ____________________________
Fax No.: ________________________
To Carrier: Dick Harris and Son Trucking Co., Inc.
178 Elon Road, PO Box 539
Madison Heights, VA 24572
Attn: James R. Harris, Jr., President
Fax No.: 434-528-6767
or to such other address as a party may provide from time to time
to the other party.
16. Confidentiality. Neither party shall divulge to a third
person, without the prior written consent of the other party, (i) the
terms of this Agreement or (ii) any proprietary information derived in
the course of performance of this Agreement. Such proprietary
information includes but is not limited to, the names of Shipper’
customers to whom delivery is made, any pricing information, or any
other information relating to Shipper’ customers, product or
Shipper. Carrier shall keep such information confidential for the
greater of (i) one year after the relationship between the parties is
terminated and (ii) any period of confidentiality contained in any
separate written confidentiality agreement between the parties.
17. Arbitration. Disputed cargo claims may, at the rest of
either party, be submitted to binding arbitration under the rules
established by the Transportation Lawyers Association’s ADR Council.
18. Governing Law. This Agreement shall be governed by and
interpreted in accordance with general principles of federal
transportation law and the laws of the Commonwealth of Virginia in
which this contract is entered.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the date indicated.
SHIPPER:
By:
Title
DICK HARRIS AND SON
TRUCKING CO., INC.
By:
Title
EXHIBIT A
Schedule of Rates and Charges
