FREIGHT SERVICES TERMS AND CONDITIONS

FitzMark is in the business of arranging transportation of property by third-party motor carriers and holds authority from the Federal Motor Carrier Safety Administration under Permit Number MC #586603, to engage in operations as a transportation broker of general commodities in interstate or foreign commerce. You (“You” or “Shipper”) [1] understand and acknowledge that (1) Broker is not a motor carrier, (2) Broker is a broker which arranges for the transportation of freight by third-party motor carriers and (3) Broker intends to engage and contract with one or more Carriers (as defined below) for purposes of satisfying obligations under these Terms and Conditions.

By tendering freight to Broker, You agree to be bound by these Terms and Conditions, except as may be set forth in a contract signed by You and Broker.  In the event of a conflict between these Terms and Conditions and signed contract, the signed contract shall control.

You and Broker enter into these Terms and Conditions in accordance with 49 U.S.C. § 14101(b)(1) and expressly waive any and all rights and remedies that each may have under Title 49 that conflict with these Terms and Conditions.

AGREEMENT

1. SERVICE.

Broker agrees to arrange for transportation of your freight (“Shipments”) by third-party motor carriers (“Carrier(s)”) in compliance with all federal, state and local laws and regulations. Broker’s responsibility is limited to arranging for, but not actually performing, transportation of Shipments.

2. NO EXCLUSIVITY.

You are not restricted from tendering freight to other brokers, freight forwarders, third-party logistics providers, or directly to motor carriers. Broker is not restricted from arranging transportation of freight for other parties.

3. YOUR RESPONSIBILITIES.

A. Compliance with Food Safety Laws.

If applicable, You must comply, and Broker will contractually require the Carrier to comply, with all applicable laws and regulations governing the safe and secure transportation of food products that will be ultimately consumed by humans or animals, including those required by local, provincial, state and federal laws, regulations, ordinances and rules including, but not limited to, the Food Safety Modernization Act, the Federal Food, Drug and Cosmetic Act, the Sanitary Food Transportation Act, the U.S. Food and Drug Administration’s Final Rule on the Sanitary Transportation of Human and Animal Food, and all applicable U.S. Department of Agriculture and Food Safety and Inspection Service regulations.

B. Shipper Written Instructions.

i. You must provide necessary shipping instructions and properly identify all Shipments in the bill of lading or other shipping instructions. You will not tender any restricted commodities including, but not limited to, hazardous materials and waste, oversize or overweight shipments, coiled or rolled products, or commodities requiring protection from heat or cold, without properly identifying such shipments and making necessary prior arrangements for transportation, including but not limited to securing a quote for a higher transportation charge for the additional service(s) requested.

ii. At the time of booking, and prior to loading the Shipments, You must further specify in the booking request and on the face of the bill of lading all instructions to be followed by the Carrier to maintain the safety of the Shipments, including, without limitation, all temperature control requirements and temperature control documentation requirements, including an operating temperature for the transportation and, when necessary, the pre-cooling phase, all sanitation requirements and sanitation documentation requirements for the Shipments, including those for the Carrier’s vehicle and transportation equipment, any design specifications and cleaning procedures (“Written Instructions”). Broker will assist You in providing any Written Instructions to the Carrier transporting your Shipments.

C. Cargo Loading and Securement.

i. You are responsible for ensuring that Shipments are properly and safely packaged and loaded for the type of transportation requested (i.e. LTL, TL, flatbed, refrigerated van, intermodal, etc.). If Carrier is not allowed on the dock during loading, You are responsible for ensuring that Shipments are supported, blocked, braced, and secured prior to transport. If You are loading the Shipments into the motor vehicles, You must inspect the vehicle or other transportation equipment provided by the Carrier, to ensure it meets the requirements specified in the Written Instructions and is in an appropriate sanitary condition for transporting the Shipments. If your agent, supplier or subcontractor is loading the Shipments, it shall be as if You loaded the Shipments.

ii. You must reject any equipment that is not in appropriate condition to protect and preserve the Shipments during transportation, or it shall be deemed appropriate when loaded and not rejected. Your failure to fulfill the obligations under this section will be considered an act or default of the Shipper, and a defense to any cargo claim resulting from the condition of the trailer.

D. Mitigating Damages.

None of the provisions in these Terms and Conditions in any way limits your obligation to mitigate damages, including by salvaging all portions of a shipment for which there is a secondary market.

4. BROKER’S RESPONSIBILITIES.

A. Broker will select Carriers by:

i. Verifying the Carrier’s operating authority (state or federal, as necessary).

ii. Verifying the Carrier’s insurance coverage, as evidenced by a certificate of insurance showing coverage of at least: (1) $1,000,000 per occurrence for Auto Liability; (2) $100,000 per occurrence for Motor Truck Cargo Liability; (3) Statutory limits for Workers Compensation.

B. Broker will require by written contract, that each Carrier providing transportation services agree that it is duly and legally licensed under applicable state, provincial and federal law to provide transportation services, that it holds a current “Satisfactory” safety rating as issued by the FMCSA, or is unrated, and has not held a “Conditional” or “Unsatisfactory” safety rating at any time during the three (3) months preceding the engagement, and that it will comply with all applicable federal, state, provincial and local laws.

C. Continuing Monitoring. 

Following initial carrier qualification, Broker shall re-verify each Carrier’s safety status at least annually. A Carrier whose safety rating becomes “Conditional” or “Unsatisfactory” after initial qualification shall be immediately suspended from active use pending re-vetting.

5. RECEIPTS AND BILLS OF LADING.

If requested by You, Broker agrees to provide You with proof of acceptance and delivery of shipments in the form of a signed bill of lading or proof of delivery via US Mail, courier, or electronically by fax or email. Your insertion of Broker’s name on the bill of lading will be for your convenience only and will not change Broker’s status as a property broker. The terms and conditions of any freight documentation used by You or Carrier will not supplement, alter, or modify these Terms and Conditions. Failure to provide proof of delivery shall not be grounds for non-payment where there is no dispute that a Shipment was successfully delivered.

6. PAYMENTS.

Broker will invoice You for its services in accordance with the rates, charges and provisions set forth herein, and any written supplements or revisions that are mutually agreed to between the Parties in writing. If rates are negotiated between the Parties and not otherwise confirmed in writing, such rates will be considered “written,” and will be binding, upon Broker’s invoice to You and your payment to Broker. You agree to pay Broker’s invoice within 30 days of invoice date without deduction or setoff.

7. CLAIMS.

Cargo Claims. Broker is a broker, not a motor carrier or freight forwarder, and has no liability for loss of or damage to Shipments. Broker shall require Carrier to assume the liability of a motor carrier (i.e. Carmack Amendment liability) for loss of or damage to the Shipments while in transit, and may contractually agree to limit carrier liability to $100,000 per shipment, or any larger sum agreed on between Broker and Carrier. You must file claims for cargo loss or damage with Broker or Carrier within nine (9) months from the delivery date or, in the event of non-delivery, the anticipated delivery date. You must file any civil action against Carrier in a court of law within 2 years from the date Carrier or Broker provides written notice to You that any part of the claim is disallowed. Upon request, Broker will assist You in the filing and/or processing of claims with Carrier (contact claims@fitzmark.com). If payment of a claim is made by Broker to You, You automatically assign your right and interest in the claim to Broker. In no event will Broker or Carrier be liable to You or any other party for special, incidental, or consequential damages for any reason whatsoever.

All Other Claims. The Parties shall notify each other of all known material details of any claims within 60 days of receiving notice of any claims other than cargo loss or damage claims, and shall update each other promptly thereafter as more information becomes available. Civil actions must be commenced within two (2) years from the date either party provides written notice to the other Party of such a claim.

8. INSURANCE.

Broker agrees to procure and maintain at its own expense, at all times during the term of these Terms and Conditions, the following insurance coverage amounts:

A.  General Liability:  $1,000,000

B.  Contingent Cargo Liability Insurance:  $100,000

C.  Workers Compensation:  Statutory Limits

9. SURETY BOND.

Broker shall maintain a surety bond or trust fund agreement as required by the FMCSA, in the amount of at least $75,000, or as otherwise required by the FMCSA, and will furnish You with proof of its bond or trust fund agreement upon request.

10. HAZARDOUS MATERIALS.

You must comply with all applicable laws and regulations relating to the transportation of hazardous materials as defined in 49 CFR §172.800, §173, and § 397 et seq. to the extent that any shipments constitute hazardous materials. You are obligated to inform Broker immediately if any such shipments constitute hazardous materials. You shall defend, indemnify, and hold Broker harmless, including reasonable attorney fees, from any penalties or liability of any kind, arising directly out of your failure to comply with applicable hazardous materials laws and regulations.

11. INDEMNIFICATION.

You must defend, indemnify, and hold Broker, Broker’s employees and agents and Carriers harmless, including reasonable attorney fees, against any losses caused by or resulting from (i) your or your employees’ or agents’ negligence or intentional misconduct, (ii) your breach of these Terms and Conditions, or (iii) your or your employees’ or agents’ violation of applicable laws or regulations. You must also indemnify Broker from any attempts to recover from Broker by your insurance carrier or any other party. The obligation to defend includes payment of all reasonable costs of defense, together with all reasonable attorney fees, as they accrue.

12. LESS THAN TRUCKLOAD (LTL) FREIGHT.

Where Broker provides LTL services, the following additional terms and conditions apply and supersede and control over any conflicting provisions of these Terms and Conditions.

Tariff Applicability. You acknowledge and agree that LTL shipments will be subject to those Carrier tariff terms applicable based upon the nature of services requested and the Shipments tendered including, without limitation, those tariff provisions required to rate shipments or adjudicate Carrier liability for the same.

Cargo Claims. If less than a full truckload of Shipments is being transported, Carrier liability for loss or damage to Shipments shall be subject to the lowest of $100,000 per shipment, $2.50 per pound times the weight of the Shipments lost or damaged, or the lowest liability provided in the National Motor Freight Classification.

13. SEVERABILITY/SURVIVABILITY.

In the event that the operation of any portion of these Terms and Conditions results in a violation of any law, or any provision is determined by a court of competent jurisdiction to be invalid or unenforceable, the Parties agree that such portion or provision shall be severable and that the remaining provisions of the Agreement shall continue in full force and effect. The representations and obligations of the Parties shall survive the termination of these Terms and Conditions for any reason.

14. INDEPENDENT CONTRACTOR.

It is understood between Broker and You that Broker is not an agent for Carrier or You and shall remain at all times an independent contractor. You do not exercise or retain any control or supervision over Broker, its operations, employees, or Carrier. Broker does not exercise or retain any control or supervision over Carrier, its operations, employees or you.

15. NONWAIVER.

Failure of either Party to insist upon performance of any of the terms, conditions or provisions of these Terms and Conditions, or to exercise any right or privilege herein, or the waiver of any breach of any of the terms, conditions or provisions of these Terms and Conditions, shall not be construed as thereafter waiving any such terms, conditions, provisions, rights or privileges, but the same shall continue and remain in full force and effect as if no forbearance or waiver had occurred.

16. NOTICES.

Unless the Parties notify each other in writing of a change of address, any and all notices required or permitted to be given under these Terms and Conditions shall be made in writing and shall be delivered via fax with machine imprint on paper acknowledging successful transmission or email with confirmed receipt), and shall be effective when so delivered.

17. FORCE MAJEURE.

Neither Party shall be liable to the other for failure to perform any of its obligations under these Terms and Conditions during any time in which such performance is prevented by fire, flood, or other natural disaster, war, pandemic, embargo, riot, civil disobedience, or the intervention of any government authority, or any other cause outside of the reasonable control of You or Broker, provided that the Party so prevented uses its best efforts to perform under these Terms and Conditions and provided further, that such Party provide reasonable notice to the other Party of such inability to perform. Performance requirements are extended by the amount of the delay except for payment obligations.

18. CHOICE OF LAW AND VENUE.

All questions concerning the construction, interpretation, validity and enforceability of these Terms and Conditions, whether in a court of law or in arbitration, shall be governed by and construed and enforced in accordance with the federal laws regarding transportation, where applicable, and otherwise by the laws of the State of Indiana, without giving effect to any choice or conflict of law provision or rule that would cause the laws of any other jurisdiction to apply. The Parties agree to jurisdiction and venue in a United States Federal District Court in Indiana, or if federal jurisdiction is not available, then in a State Court located in Indiana.

19. CONFIDENTIALITY.

Other than as required to comply with the law or legal process requiring disclosure, the Parties agree to the following:

A. The Parties shall not publish, use or disclose the contents or existence of these Terms and Conditions except as necessary to conduct their operations pursuant to these Terms and Conditions. Broker will require Carrier and/or other brokers to comply with this confidentiality clause.

B. In addition to Confidential Information protected by law, statutory or otherwise, the Parties agree that all of their financial information and that of their customers, including but not limited to freight and brokerage rates, amounts received for brokerage services, amounts of freight charges collected, freight volume requirements, as well as personal customer information, customer shipping or other logistics requirements shared or learned between the Parties and their customers, shall be treated as confidential, and shall not be disclosed or used for any reason without prior written consent. You specifically waive any rights You may have under 49 CFR Section 371.3.

C. In the event of a violation of this Confidentiality paragraph, the Parties agree that the remedy at law, including monetary damages, may be inadequate and that the Parties shall be entitled, in addition to any other remedy they may have, to an injunction restraining the violating Party from further violation of these Terms and Conditions in which case the non-prevailing Party shall be liable for all costs and expenses incurred, including but not limited to reasonable attorney’s fees.

[1] You or Your shall include your agents, suppliers, business partners, subcontractors, or anyone else working with you on each shipment.