Terms & Conditions: Capacity Providers
Date: 22 Aug 2018
EmergeTech, LLC and its affiliates (collectively, “EmergeTech”) provide certain transportation brokerage services through the Emerge™ Transportation Management Service Marketplace (collectively, the “Services”). These Broker-Carrier Terms and Conditions (the “Agreement”) govern your access to and use of the Services in conjunction with the Emerge Terms of Service (http://www.emergetms.com/terms-of-service), which are incorporated herein by reference. Please read this Agreement and the Emerge Terms of Service carefully.
The terms “you” and “Carrier” as used in this Agreement, means any person or entity who accesses or uses the Services as a motor carrier. This Agreement gives you specific legal rights, and you may also have other legal rights in addition, which vary from jurisdiction to jurisdiction. You and EmergeTech may be individually referred to a “Party”, and collectively referred to as “Parties”.
THIS AGREEMENT IS A LEGAL AGREEMENT BETWEEN YOU AND EMERGETECH. BY ACCESSING AND USING THE SERVICES, YOU ARE ACCEPTING AND AGREEING TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ACCEPT AND AGREE TO THIS AGREEMENT. YOU REPRESENT THAT YOU ARE OF SUFFICIENT LEGAL AGE IN YOUR JURISDICTION OR RESIDENCE TO USE OR ACCESS THE SERVICES AND TO ENTER INTO THIS AGREEMENT. IF YOU DO NOT AGREE WITH ANY OF THE PROVISIONS OF THIS AGREEMENT, YOU SHOULD CEASE ACCESSING OR USING THE SERVICES. CERTAIN TERMS OF THIS AGREEMENT WILL NOT APPLY, SOLELY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
EmergeTech is a transportation broker, authorized by the Federal Motor Carrier Safety Administration (“FMCSA”) in Docket Number 945637 to arrange for transportation of general commodities by motor carriers.
Carrier must be an interstate motor carrier authorized by the FMCSA to provide transportation of goods, and must be registered, if required, with each applicable State in the U.S. or Province in Canada as is necessary to perform transportation hereunder.
EmergeTech, in order to satisfy some of its transportation needs, hereby retains Carrier to transport general commodities (the “Goods”) on behalf of EmergeTech’s shippers, consignees, or other third parties (collectively, “Customers”).
The Parties enter into this Agreement in accordance with 49 U.S.C. § 14101(b)(1) and expressly waive any and all rights and remedies that each may have under 49 U.S.C. §§ 13101 through 14914 that are contrary to specific provisions of this Agreement.
This Agreement governs all shipments tendered to Carrier by Customers through the Emerge™ Transportation Management Service Marketplace.
2. Term And Termination
This Agreement will remain in full force and effect so long as you continue to access or use the Services, or until terminated in accordance with this Agreement. At any time, EmergeTech may (i) suspend or terminate your right to access or use the Services, or (ii) terminate this Agreement, if EmergeTech in good faith believes that you have used the Services in violation of this Agreement, including any incorporated terms, rules, or guidelines. If you transfer your account to a new owner, your right to use the Services automatically terminates, and the new owner will have no right to use the Services under your account and will need to register for a separate account with EmergeTech and accept this Agreement. You may cancel and discontinue your account at any time by written notice to EmergeTech. Cancellation requests must be sent to support@EmergeTMS.com. The cancellation date will be the date when the cancellation request is received by EmergeTech.
3. No Exclusivity
EmergeTech is not restricted from tendering Goods to motor carriers other than Carrier. Carrier is not restricted from providing its transportation services to entities other than EmergeTech or Customers.
4. Carrier’s Obligations
- Carrier agrees to transport safely, promptly, and efficiently all Goods tendered to it by Customers through EmergeTech. Carrier recognizes that Goods are time critical and must be delivered by the date and time specified.
- Carrier shall not violate any law, rule, or regulation pertaining to highway or motor vehicle safety, including but not limited to those relating to safety, hazardous materials, the environment, load securement, weight restrictions, speed limits, routing restrictions, hours of service, controlled substances testing, driver training and qualifications, vehicle inspection, and safe operation of motor vehicles.
- Carrier, at its own cost and expense, will provide and maintain motor vehicles and other equipment used in providing services, in good, safe, and efficient condition, and in compliance with all laws and regulations governing the maintenance and operation of such motor vehicles and other equipment.
- Carrier must not have an “Unsatisfactory” safety rating as determined by the Federal Motor Carrier Safety Administration (“FMCSA”) or a substantively equivalent rating that may be developed under the Compliance, Safety, Accountability (“CSA”) program. If Carrier receives an Unsatisfactory safety rating or its equivalent under CSA, it will immediately notify EmergeTech. Carrier will not use any other carrier or subcontractor with an “Unsatisfactory” safety rating or equivalent rating under CSA even if EmergeTech authorizes use of another carrier or subcontractor.
- Carrier must provide transportation services in compliance with all applicable federal, state, provincial, and local statutes, ordinances, rules, and regulations, including, but not limited to those pertaining to the proper qualification, screening, and licensing of drivers; hours of service; maintenance and safe operation of equipment; transportation and handling of Hazard Materials (49 C.F.R. §§ 172.800, 173 and 397, et seq.) (“HAZMAT”); security; owner-operator leases; loading and securement of freight; controlled substance and alcohol use testing; insurance and workers’ compensation requirements; the safe and secure transportation of food that will ultimately be consumed by humans or animals, including the Food Safety Modernization Act (21 U.S.C. § 2201, et seq.), the Food, Drug and Cosmetic Act (21 U.S.C. § 341, et seq.) (“FD&C Act”), the Sanitary Food Transportation Act (49 USC 5701 et seq.), and the U.S. Food and Drug Administration’s Final Rule on the Sanitary Transportation of Human and Animal Food (21 C.F.R. § 1.900 et seq.), collectively (the “Food Safety Laws”).
- Carrier shall not supply equipment that has been used to transport hazardous wastes, solid or liquid, regardless of whether they meet the definition in 49 C.F.R. Section 261.
- Carrier agrees, to the extent it uses Transport Refrigeration Units (“TRUs”), TRU gen sets, and facilities where TRUs are operated within the State of California, that it will use only equipment that complies with Title 13 Section 2477 of the California Code of Regulations.
- Carrier will accept instruction for changes in delivery place or time from EmergeTech only. If Carrier accepts change instructions from parties other than EmergeTech, Carrier does so at its own risk and will forfeit its right to compensation for the shipment of Goods.
- Carrier will provide trailers to Customers at locations designated from time to time by EmergeTech. No detention or other charges will be assessed for the spotting of trailers or tractor unless specifically agreed in writing in advance.
- Carrier must ensure that its drivers are properly trained, licensed, qualified, and competent to operate the motor vehicles used to transport Goods tendered by EmergeTech and shall comply with all rules, policies, and procedures in effect at Customer or consignee facilities. By acceptance of a shipment of Goods hereunder, Carrier warrants that it will assign to perform the transportation services a driver who has sufficient time remaining under the hours of service rules to complete the duties assigned by the Carrier.
- Carrier must comply with 49 CFR Part 395 regarding use of Electronic Logging Devices (“ELDs”). Carrier must have on-board each vehicle an ELD from a provider listed on the FMCSA’s ELD registry and must notify Broker if the provider is removed from the registry or if the ELD malfunctions while transportation is being provided for Goods tendered by a Customer.
5. Carrier Compensation
- EmergeTech agrees to pay Carrier in accordance with rates and charges agreed to in writing between the parties through the Emerge™ Transportation Management Service Marketplace.
- Carrier agrees to invoice EmergeTech on a timely basis. EmergeTech shall not be obligated to pay any invoice or balance due received more than sixty (60) calendar days after the date of completion of the transportation services. Each invoice must include an original or legible copy of the signed bill of lading and the signed delivery receipt.
- EmergeTech will make payment to Carrier within 30 days of receipt of an uncontested invoice. EmergeTech may offset monies due EmergeTech from Carrier against payments to Carrier.
- Carrier agrees that EmergeTech is the sole party responsible for payment of Carrier’s charges. Carrier shall not seek payment from Customers or any shippers, consignees, or other associated parties.
- Carrier, for itself and on behalf of all of its agents and subcontractors, waives any lien that may exist against Goods. Carrier shall not withhold delivery of any Goods due to any dispute with EmergeTech, Customers, shippers, consignees, or any other parties.
6. No Back Solicitation
Any document required by this Agreement may be presented in either paper or electronic form. The terms and conditions of any bill of lading or other shipping or freight documentation will not supplement, alter, or modify this Agreement.
- Acceptance by Carrier of a load offered by EmergeTech will constitute Carrier’s recognition that the shipper of the load is a Customer.
- For a period of two (2) years following the date of the initial referral or the date that Carrier’s service is last performed for an account of EmergeTech under the terms of this Agreement, Carrier agrees not to solicit or accept, directly or indirectly, shipments from Customers from anyone other than EmergeTech.
- In the event of a breach of this provision, EmergeTech will be entitled to a commission of 25% of the gross transportation revenue received by Carrier from EmergeTech’s Customer. EmergeTech will also be entitled to injunctive relief and, if EmergeTech is a prevailing party, Carrier shall be liable for all costs and expenses incurred by EmergeTech including, but not limited to, attorneys’ fees and costs.
- The provisions of this paragraph will be in effect during the initial and all subsequent terms of this Agreement and will continue in effect for one year after termination of this Agreement.
7. Bills Of Lading Documentation
Carrier agrees to issue a bill of lading or similar document for each shipment and to provide EmergeTech with proof of acceptance and delivery of each shipment. The terms and conditions of any bill of lading or other shipping or freight documentation will not supplement, alter, or modify this Agreement.
8. Cargo Loss, Damage, And Delay
- Except as otherwise provided herein, Carrier is liable for loss of, damage to, or delay of Goods according to the provisions of 49 U.S.C. § 14706.
- The liability of Carrier for loss of or damage to Goods is for full actual value (measured by fair market value at destination), subject to a maximum liability of $100,000 per shipment unless Carrier is notified prior to shipment that the value of the shipment exceeds that amount. The liability of Carrier for delay to delivery of Goods is for the greater of either the full actual value of the Goods or those damages that are reasonably foreseeable. No other limitations of liability will apply.
- Carrier acknowledges that food that has been transported under conditions that are not in compliance with the shipper’s instructions, as provided to Carrier by either shipper or EmergeTech, will be considered “adulterated” within the meaning of the Federal Food, Drug and Cosmetic Act, 21 U.S.C. Section 342(i). Carrier understands and agrees that adulterated shipments may be refused by the consignee or receiver without diminishing or affecting Carrier’s liability in the event of a cargo claim.
- No terms, conditions, or provisions of any bill of lading or other shipping form, Carrier’s tariff, or rule will apply.
- All claims for loss, damage, or delay will be processed in accordance with 49 CFR Part 370, except claims must be concluded within 30 days of receipt. Carrier will be deemed liable for any claims not concluded within 30 days of receipt.
- Carrier agrees to waive any and all right of salvage or resale of Goods. Customers may determine in their sole discretion, not subject to a reasonableness standard, whether Goods can be salvaged and, if salvageable, the value of such salvage. In the event that damaged Goods are salvaged, then Carrier shall receive a credit for the actual salvage value of such Goods.
Carrier shall not broker, subcontract, or interline a shipment without the prior written approval of EmergeTech. If Carrier brokers, subcontracts, or interlines a shipment, with or without prior written approval from EmergeTech, Carrier will remain responsible and liable as if Carrier performed the services itself as a motor carrier. If Carrier breaches this provision, EmergeTech shall have the right of paying the monies it owes Carrier directly to the delivering carrier, in lieu of payment to Carrier.
Carrier shall indemnify, defend, and hold EmergeTech, Customers, and owners of the Goods, and their respective officers, agents, and employees (“Indemnitees”) harmless against any and all liability, claims, or expenses, including attorneys’ fees and other costs of defense, with respect to those claims relating in any way to Carrier’s, its employees’ or subcontractors’ performance or failure to perform under this Agreement asserted against Indemnitees by any person or entity. The obligation to defend includes payment of all reasonable costs of defense, including attorneys’ fees, as they accrue.
At all times, at its own expense, Carrier will maintain the insurance specified below. All insurance must be primary and required to respond and pay prior to any other available coverage.
- Worker’s Compensation insurance in statutory amounts;
- Employer’s Liability insurance with limits of not less than $1,000,000;
- Occurrence based Commercial General Liability Insurance including blanket contractual coverage, with combined single limits of $1,000,000 for personal injury, including death, and $1,000,000 for each occurrence for property damage including:
- Premises operation; and
- Contractual liability for the liability assumed by Carrier pursuant to any indemnification agreements between EmergeTech and Carrier
- Occurrence based Truckers Policy or Automobile Liability Insurance, including hired and non-owned vehicles, with limits of $1,000,000 per occurrence and not less than $5,000,000 per occurrence if Hazardous Materials are handled; and
- Occurrence based Cargo Insurance with limits of liability of not less than $100,000 per shipment.
- Carrier’s Cargo Insurance policy shall not exclude coverage for fraud, infidelity, unattended vehicle, dishonesty, or criminal acts of Carrier’s employees or agents.
- Except for Worker’s Compensation and Cargo Insurance, the above policies and certificates must name EmergeTech as an additional insured. All policies and certificates must require that the insurer provide EmergeTech at least thirty (30) days’ notice of any material changes or cancellation.
- Prior to acceptance of the first shipment under this Agreement, Carrier shall cause its insurance agent, broker, or carrier to provide certificates of insurance evidencing the above coverage.
12. Force Majeure
If performance by one Party is affected by any condition beyond the reasonable control of such Party, provided that the applicable condition is not attributable to the acts or omissions of such Party, and such Party is taking reasonable measures to remove or mitigate the effects of the applicable condition, then the performance of obligations under this Agreement affected by such condition will be suspended during the continuance of such condition, and such Party will promptly notify the other Party of such condition. Such period of suspension will not in any way invalidate this Agreement, but on resumption of operations, any affected performance by such Party will be resumed. Neither Party will incur any liability for damages resulting from such suspensions.
All notices under this Agreement will be in writing and will be deemed to be sufficient if (a) delivered personally, (b) sent by facsimile or e-mail transmission if confirmed by notice sent by one of the other notice methods permitted hereunder, (c) sent by nationally-recognized, overnight courier guaranteeing next business day delivery, or (d) mailed by registered or certified mail (return receipt requested), postage prepaid. Notice to EmergeTech shall be delivered to the following address (or at such other address for a party as will be specified by like notice):
Attn: Michael Brooks II
Address: 8444 N 90th St.
Scottsdale, AZ 85258
Phone: (888) 736-7710
Fax: (888) 808-2230
All such notices and other communications will be deemed to have been given and received (a) in the case of personal delivery, on the date of such delivery, (b) in the case of facsimile or e-mail transmission that is confirmed by notice sent on the same day by one of the other methods permitted hereunder, on the date of transmission if sent on a business day, (or if sent on other than a business day, on the next business day after the date sent), (c) in the case of delivery by nationally-recognized, overnight courier, on the business day following dispatch if sent by guaranteed next day delivery, or (d) in the case of mailing, on the third business day following such mailing.
As part of the business relationship between EmergeTech and Carrier, either Party may be in or come into possession of information or data that constitutes trade secrets, know-how, confidential information, marketing plans, pricing, or anything else otherwise considered proprietary or secret by the other (“Confidential Information”). In consideration of the receipt of such Confidential Information and potential business, each Party agrees to protect and maintain such Confidential Information in the utmost confidence, to use such Confidential Information solely in connection with their business relationship, and, to take all measures reasonably necessary to protect the Confidential Information.
- Carrier agrees that EmergeTech’ charges to its Customers are confidential and need not be disclosed to Carrier. Carrier specifically waives any rights it may have under 49 CFR § 371.3.
- Except as may be required by law, the terms and conditions of this Agreement and information pertaining to any Services will not be disclosed by either Party to any other persons or entities, except to the directors, officers, employees, authorized contractors, attorneys, and accountants of each Party.
- This mutual confidentiality obligation will not prohibit or limit the receiving Party’s use of information (1) previously known to it and not subject to any confidentiality restrictions, (2) acquired by it from a third party which is not, to the receiving Party’s knowledge, under an obligation not to disclose such information, or (3) which is or becomes publicly available through no breach of these obligations by the receiving Party or its employees or agents of these confidentiality obligations.
- This mutual confidentiality obligation will remain in effect during the terms of this Agreement and for a period of two years following any termination.
15. Choice Of Law And Venue
All questions concerning the construction, interpretation, validity, and enforceability of this Agreement, whether in a court of law or in arbitration, will be governed by and construed and enforced in accordance with the laws of the State of Arizona, without giving effect to any choice or conflict of law provision or rule that would cause the laws of any other jurisdiction to apply. Venue of any action or proceeding for the enforcement of this Agreement shall be exclusively in a state or federal court in the County of Maricopa, Arizona
16. Severability / Survivability
If the operation of any portion of this Agreement results in a violation of any law, or a court of competent jurisdiction determines any provision to be invalid or unenforceable, the parties agree that such portion or provision will be severable and that the remaining provisions of the Agreement will continue in full force and effect.
Failure of either party to insist upon performance of any of the terms, conditions or provisions of this Agreement, or to exercise any right or privilege herein, or the waiver of any breach of any of the terms, conditions or provisions of this Agreement, will not be construed as thereafter waiving any such terms, conditions, provisions, rights or privileges, but the same will continue and remain in full force and effect as if no forbearance or waiver had occurred. No waiver of any right, power, or privilege hereunder will be binding upon any party unless in writing and signed by or on behalf of the party against which the waiver is asserted.
18. Assignment / Modifications of Agreement
This Agreement will be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. This Agreement may not be assigned by either party without the written consent of the other party, except to any wholly-owned subsidiary of such party. No amendment or modification of the terms of this Agreement will be binding unless in writing and signed by the parties, specifically referencing this Agreement.
19. Independent Contractor
It is understood between EmergeTech and Carrier that Carrier is not an agent for EmergeTech or Customers and will remain at all times an independent contractor. EmergeTech does not exercise or retain any control or supervision over Carrier, its operations, or employees.
20. Entire Understanding, Modifications
This Agreement, including all documents referenced herein, constitute the entire, fully integrated agreement intended by and between the parties and supersedes all prior agreements, representations, warranties, statements, promises, information, arrangements, and understandings, whether oral, written, expressed or implied, with respect to the subject matter hereof.
The captions set forth in this Agreement are for convenience only and will not be considered a part of this Agreement nor affect in any way the meaning of the terms and provisions hereof.