TERMS AND CONDITIONS
These Terms and Conditions apply to the arrangement of transportation services by Tom Lange Company, Inc. (“Tom Lange” or “Broker”) for any shipment. In addition to any terms and conditions contained in the Broker-Carrier Agreement, the Carrier (defined below) consents to these Terms and Conditions (“Terms”):
1. Broker reserves the right to change these Terms from time to time without notice. The terms, conditions, limitations, charges, and services of these Terms in effect on the date that Customer’s shipment is tendered for transportation will apply. Carrier is responsible to obtain the current version of Terms by accessing them on Tom Lange’s website at www.tomlange.com.
2. As used herein, “Customer” means the person(s)/entity(ies) for whose benefit, at whose request, or on whose behalf Broker provides the Services, whether Customer is a consignor, consignee, shipper, receiver, or third-party intermediary. As used herein, “Carrier” means any motor carrier, including its drivers and independent owner operators, third-party logistics company, any ocean or air carrier, or any other person/entity that provides transportation, storage, handling, or related services to Customer’s cargo or goods for which the Broker is arranging transportation (“Goods”).
3. Carrier represents and warrants that it is duly and legally licensed under state, provincial and federal law to provide the services contemplated herein.
4. Carrier agrees that all transportation services will be performed in full compliance with Federal, State, Provincial, Territorial, Municipal, Local, and, to the extent applicable, international laws or regulations governing its operations, as well as all laws and related programs designed to protect transportation activities from terrorist attacks (“Applicable Laws”). Carrier agrees to indemnify Broker for any fines, costs, claims, liability, or expenses that it may incur and that arise out of violations of any applicable laws and regulations during Carrier’s performance under this Agreement. Carrier will not engage in any trade, practice or other activity which is harmful to the goodwill of Broker or Broker’s Customers, or which reflects unfavorably on the reputation of Broker or Broker’s Customers, or which constitutes deceptive or unfair competition, consumer fraud or misrepresentation.
5. If any portion of these Terms results in a violation of any law, or any provision is determined by a court of competent jurisdiction to be invalid or unenforceable, Carrier and Broker agree that such portion or provision will be severable and that the remaining provisions will continue in full force and effect. The representations and obligations of the parties herein will survive the termination of the parties’ relationship or any services, for any reason.
6. Carrier and Broker agree, for each shipment of Goods, the following shall apply:
a. Tariffs. In the event of a conflict in the terms of any agreement between Carrier and Broker or any rules or tariff of Carrier or the Bill of Lading (“BOL”) and these Terms, these Terms shall take precedence and control the interpretation of the rights and obligations of the parties.
b. Bills of Lading. Carrier will issue and sign a standard, uniform straight bill of lading or other tender receipt acceptable to Broker and Broker’s Customers upon acceptance of a shipment for transportation, and to comply with the remaining provisions of this section. If Carrier permits the Customer to prepare the bill of lading, Carrier warrants that it shall ensure that the bill of lading properly names Carrier as the “Carrier” on the load prior to signing it, and shall strike through and correct any erroneous designation of any other person as “Carrier” (including Broker) on the bill of lading. The Parties acknowledge and agree that the terms and conditions of the bill of lading shall not apply to services provided under the Agreement. The bill of lading issued or executed by Carrier shall be prima facie evidence of receipt of the shipment in good order and condition by Carrier unless otherwise noted on the face of said document.
c. Re-Brokering. Carrier specifically agrees that it will not re-broker, co-broker, subcontract, assign, interline, or transfer the transportation of shipments hereunder to any other persons or entity conducting business under a different operating authority. If Carrier breaches this provision, among all other remedies (whether at equity or in law), Broker reserves the right to refuse payment to Carrier and/or to pay the monies it owes Carrier directly to the delivering carrier, in lieu of payment to Carrier. Upon Broker’s payment to delivering carrier, Carrier shall not be released from any liability to Broker under this Agreement or otherwise, including any claims under MAP-21 (49 U.S.C. § 13901 et seq.). In addition to the indemnity obligation in Par 1.H, Carrier will be liable for consequential damages for violation of this provision and, further, Broker, in its sole discretion, may do one or more of the following: (a) terminate this Agreement and Broker’s relationship with Carrier; and/or (b) require Carrier to immediately provide security (cash, bond or letter of credit) in a minimum amount of $50,000, or such greater amount required by Broker to secure Carrier’s liability.
d. Indemnification. Carrier shall defend, indemnify and hold Broker (and the applicable shipper, consignor, consignee, receiver and/or other party with an interest in the transported property) harmless from any and all, direct or indirect, fines, penalties, payments, costs, expenses, liability claims, actions or damages, arising out of its performance under this Agreement, including cargo loss and damage, theft, delay, damage to property, and bodily injury, personal injury or death. The obligation to defend shall include all costs of defense as they accrue.
e. Lien. Carrier shall not have a lien and shall waive its right to any lien on any cargo, freight, or property of Broker or any of its customers, consignors, or consignees.
f. Costs and Expenses of Operation. Carrier shall bear all of the costs, expenses, and liabilities of providing the services and supplies required for the operation, maintenance, and repair of Equipment, all labor costs and expenses and all costs and expenses for the procuring and maintaining of all insurance, operating authorities, licenses and permits as may be required for the performance of transportation services.
g. Carrier Moving Perishables. Carrier will verify that the equipment is suitable for the transportation of food and dairy products for human or animal consumption, as applicable, as well as for other perishables, and will comply with all applicable laws and regulations. Carrier warrants that the Carrier will inspect or hire a service representative to inspect a vehicle’s refrigeration or heating unit at least once each month. Carrier warrants that they shall maintain a record of each inspection of refrigeration or heating unit and retain the records of the inspection for a least one year. Copies of these records must be provided upon request to the Carrier’s insurance company and Broker. Each unit will maintain temperature data loggers in good working condition and provide the temperature readings upon request.
Carrier warrants that they will maintain adequate fuel levels for the refrigeration or heating unit and assume full liability for claims and expenses incurred by the Broker or the shipper for failure to do so.
Carrier will maintain effective driver screening, training, qualification and monitoring procedures and will provide Broker with information about these procedures upon request. Carrier will cause its drivers and other Carrier representatives to operate their vehicles and equipment in a proper and lawful manner and to maintain equipment used to provide the transportation services in good, safe, sanitary, disinfected and lawful operating condition at all times. Carrier will use equipment that has been cleaned and sanitized in accordance with reasonable efforts not to supply equipment for transportation services that has been previously used to transport other product. Carrier must provide their cargo insurer with all records that relate to a loss and permit copies and abstracts to be made from them upon request. Broker’s Customer is a third party beneficiary of this Agreement.
Carrier will inspect all empty equipment before loading to determine whether it is in apparent good condition (i.e., it appears to be sound, roadworthy, clean, odor-free, dry, leakproof and free of contamination or infestation) to protect the cargo being transported, will reject any equipment that is not in apparent good condition, clean and disinfected and will immediately (no later than 60 minutes) inform Broker of its rejection. Carrier acknowledges that if Carrier fails to inspect the equipment when it has the opportunity to do so, Carrier assumes liability related to such failure, for damage or loss to product cargo transported in such equipment.
All vehicles used for the transportation of pasteurized milk and milk products shall be constructed and operated so that the milk and milk products are maintained at 7ºC (45ºF) or less and are protected from contamination. Milk tank cars, milk tank trucks, and portable shipping bins shall not be used to transport or contain any substances that may be toxic or harmful to humans.
Carrier will maintain compliance with California TRU Regulation under California Code of Regulations Title 13, Division 3, Chapter 9, Article 8, Section 2477, as applicable.
h. Independent Contractor. Carrier shall perform the services hereunder as an independent contractor and shall have exclusive control and direction of all persons operating equipment or otherwise engaged in providing transportation services. Carrier assumes full responsibility for the acts and omissions of such persons and, when applicable, shall have exclusive liability for the payment of local, state and federal payroll taxes or contributions or taxes for unemployment insurance, workers’ compensation, old age pensions or other social security and related protection, and agrees to comply with all applicable rules and regulations pertaining thereto. Driving directions and other incidental shipment details provided to Carrier employees by Broker are for informational purposes only.
i. Payment. Broker will require Carrier to submit a signed copy of the bill of lading and the delivery receipt for the shipment, and, if applicable, a written amendment to the appendix acknowledging a change in compensation for any shipment prior to payment by Broker. Invoices must be submitted to Broker within thirty (30) days from the date of delivery. Invoices received after thirty (30) days from the date of delivery may be rejected and not processed for payment. All charges for each shipment must be submitted on one invoice. Any and all secondary invoices submitted after the original invoice has been received may not be paid. Carrier (i) appoints and designates Broker as its agent for the purpose of billing and collection of freight charges and waives any and all recourse rights to claim, demand, or pursue payment from any person other than Broker for any shipment tendered pursuant to this Contract; (ii) agrees not to contact Broker’s Customers, consignors, consignees, or any party other than Broker concerning payment for transportation services; and (iii) agrees to indemnify, defend, and hold Broker, its Customers, consignors, and consignees harmless from any claim or demand made by any subcontractor of Carrier or other party for payment for transportation services related to a shipment tendered under this contract.
Broker will bill customer for transportation charges on behalf of Carrier and will remit to Carrier such proceeds as Carrier is entitled to receive, but Carrier agrees to solely look to Broker, and not to its customers, for the payment of the Carrier’s charges.
j. Disclaimer of Warranties. Broker makes no warranties, express or implied, including, without limitation, warranties of merchantability or fitness for a particular purpose, with regard to any shipment, warehoused goods, items in transit or deliveries or with regard to the information or services provided. In no event shall Broker be liable for any special, incidental, or consequential damages, including damages relating to loss of profits or income, whether or not such damages were reasonably foreseeable.
k. Insurance. Carrier shall carry insurance to cover any and all equipment and personnel used in performing under this Agreement and shall furnish Broker with Certificate(s) of Insurance prior to first shipment for Broker (with annual updates thereafter) and/or copies of insurance policies if so requested by Broker and unless otherwise agreed, subject to the following minimum limits: General liability at a limit of $1,000,000.00 Each Occurrence; Commercial Automobile Liability/Motor Vehicle Liability (including hired and non-owned vehicles) at a limit of $1,000,000.00 Combined Single Limit Each Occurrence, ($5,000,000 Combined Single Limit Each Occurrence, an MCS-90 Endorsement and the Broadened Pollution Liability Endorsement CA 99 48 if transporting hazardous materials including environmental damages due to release or discharge of hazardous substances); Cargo Damage/Loss liability equal to the full value of each Truckload (but not to be less than $100,000) with no exclusions or conditions for the cargo under carriage; Workers’ Compensation with limits required by law, with an Employers Liability Limit of no less than $500,000.00. Except for the higher coverage limits which may be specified above, the insurance policies shall comply with minimum requirements of the Federal Motor Carrier Safety Administration and any other applicable regulatory state agency and shall be provided by a reputable and financially responsible insurance company (rated B+ or better) with the ability to name Broker as an additional insured and loss payee providing thirty (30) days advance notice of cancellation or termination. Carrier shall name Broker as an additional insured (on a primary and non-contributory basis from on-going and completed operation) and loss payee on all such insurance policies, as well as provide Broker with a Waiver of Subrogation endorsement for such policies (naming Broker as benefit under such waiver of subrogation), and shall provide additional certifications of same upon Broker’s request, and Carrier agrees to name other parties as additional insureds and loss payees as may be reasonably requested by Broker from time to time for certain loads transported under this Agreement. Additionally, if the Carrier holds an umbrella or excess insurance policy, Carrier shall name Broker as an additional insured and loss payee on such insurance policy(ies) and provide a Waiver of Subrogation endorsement benefiting Broker. Nothing in this Agreement shall be construed to avoid or limit Carrier’s liability due to any policy limits or exclusion or deductible in any insurance policy. Carrier agrees Broker is entitled to request and receive copies of all insurance policies of Carrier and Carrier agrees that it will be in breach of this Agreement in the event it (or its insurance company) fails to provide copies of insurance policies, coverage information and/or COIs upon Broker’s request.
l. Disputes: In the event of a dispute arising out of this Agreement, including but not limited to Federal or State statutory claims, with the exception of matters involving federal preemption, the Party's sole recourse (except as provided below) shall be arbitration. Arbitration Proceedings shall be conducted under the rules of the American Arbitration Association (AAA), Transportation ADR Council, Inc. (ADR), or DRC (Fruit and Vegetable Dispute Resolution Corp) for fresh produce related claims, upon mutual agreement of the Parties, or if no agreement, then at Broker’s sole discretion. Arbitration proceedings shall be started within eighteen (18) months from the date of delivery or scheduled date of delivery of the freight, whichever is later. Upon agreement of the Parties, arbitration proceedings may be conducted outside of the administrative control of the AAA, ADR, or DRC. The decision of the arbitrators shall be binding and final and the award of the arbitrator may be entered as judgment in any court of competent jurisdiction. The rationale and reasoning of the decision of arbitrator(s) shall be fully explained in a written opinion, including findings of fact and conclusions of law. The prevailing party shall be entitled to recovery of costs, expenses and reasonable attorney fees as well as those incurred in any action for injunctive relief, or in the event further legal action is taken to enforce the award of arbitrators. Arbitration proceedings shall be conducted at the office of the AAA, ADR, or DRC nearest St. Louis, MO, USA, or at such other place as mutually agreed upon in writing, or by conference call or video conferencing upon agreement of the Parties. Provided, however, either Party may apply to a court of competent jurisdiction for injunctive relief. Unless preempted or controlled by federal transportation law and regulations, the laws of the State of Missouri, United States of America shall be controlling notwithstanding applicable conflicts of laws rules. The parties mutually acknowledge and agree that they shall not raise in connection therewith, and hereby waive, any defense based upon venue, inconvenience of forum, lack of jurisdiction, or the like in any action or suit brought in accordance with the foregoing. The arbitration provisions of this paragraph shall not apply to enforcement of the award of arbitration. THE PARTIES EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE PROVISIONS OF THIS SUBSECTION L REGARDING MANDATORY ARBITRATION SHALL NOT APPLY WHEN COMPANY FILES SUIT TO ENFORCE. Parties further expressly acknowledge such a claim shall be brought by Company in the State of Missouri, County of Saint Louis City, and Parties consent to and waive any objection to such venue or jurisdiction.
7. Parties acknowledge and agree that in the event of any conflict between the terms of the Broker – Carrier Agreement and these Terms, these Terms shall govern.