Shipper-Broker Terms and Conditions
Date: 22 Aug 2018
EmergeTech, LLC and its affiliates (collectively, “EmergeTech”) provide certain transportation brokerage services through the EmergeTMS™ Transportation Management Service Marketplace by arranging for, but not actually performing, transportation of goods (collectively, the “Services”). These Shipper-Broker Terms and Conditions (the “Agreement”) govern your access to and use of the Services in conjunction with the EmergeTMS Terms of Service (http://www.emergetms.com/terms-of-service/), which are incorporated herein by reference. Please read this Agreement and the EmergeTMS Terms of Service carefully.
The terms “you” and “Shipper” as used in this Agreement, means any person or entity who accesses or uses the Services as a shipper of goods. This Agreement gives you specific legal rights, and you may also have other legal rights in addition, which vary from jurisdiction to jurisdiction.
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 licensed as a property broker by the Federal Motor Carrier Safety Administration (“FMCSA”) in Docket Number MC 945637. EmergeTech arranges for transportation of cargo, both general commodities and exempt commodities, by motor carrier (each a “Motor Carrier”).
Shipper, to satisfy some of its transportation needs, desires to use the Services to arrange for transportation of Shipper’s cargo (“Goods”).
The parties enter into this Agreement pursuant to 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 the specific provisions of this Agreement.
This Agreement governs all shipments tendered to EmergeTech by Shipper through the EmergeTMS™ 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
Shipper is not restricted from tendering Goods to other brokers or directly to Motor Carriers. EmergeTech is not restricted from arranging transportation for other persons or entities.
4. SHIPPER’S OBLIGATIONS
- Compliance with Food Safety Laws. Shipper shall 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 (“Food Shipments”), including those required by local, provincial, state and federal laws, regulations, ordinances, and rules including, but not limited to, the Food Safety Modernization Act (21 U.S.C. § 2201, et. seq.), the Federal Food, Drug and Cosmetic Act (21 U.S.C. § 341, et seq.) (“FD&C Act”), the Sanitary Food Transportation Act (49 U.S.C. 5701, et seq.), 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.), and all applicable U.S. Department of Agriculture and Food Safety and Inspection Service regulations (collectively, the “Food Safety Laws”). Shipper represents and warrants that any Food Shipments offered for transportation pursuant to the Agreement are tendered in safe condition for human or animal consumption, as applicable.
- Shipper Written Instructions.
- Shipper must provide necessary shipping instructions, including the correct classification of the commodities, any seal or padlock requirements, and properly identify all Goods in the bill of lading or other shipping instructions. Shipper will not tender any restricted commodities including, but not limited to, hazardous materials and waste, oversize or overweight shipments, coiled or rolled products, commodities requiring any special handling, or commodities requiring protection from heat or cold, without properly identifying such shipments and making necessary prior arrangements for transportation.
- If a Food Shipment is covered under any of the Food Safety Laws that prohibit the sale or distribution of unsafe or “adulterated” food, Shipper must specify the applicable statutes, regulations, or other body or bodies of law, on the face of the governing bill of lading for the shipment. At the time of booking, and prior to loading Goods, Shipper must further specify in the booking request and on the face of the governing bill of lading all instructions to be followed by the Motor Carriers to maintain the safety of the food, 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 Food Shipment, including those for the Motor Carriers’ vehicle and transportation equipment, any design specifications and cleaning procedures (“Written Instructions”). Shipper, including its consignors and consignees, shall permit the performing Motor Carrier to verify the temperature of Food Shipments prior to acceptance of tender and upon delivery at destination.
- Shipper warrants that it will not directly or indirectly interfere with, or attempt to adversely influence, the performing Motor Carrier’s safe operation of equipment including performance pursuant to the federal hours of service regulations.
- Shipper is responsible for ensuring that Goods are properly and safely loaded, supported, blocked, braced, and secured. Shipper will be responsible for expenses arising out of any load shift that occurs during transportation due to improper or insufficient loading, blocking, or bracing. If Shipper is loading Food Shipments into the motor vehicles transporting the Food Shipments, Shipper is responsible for ensuring that the vehicle or other transportation equipment provided by the Motor Carrier meets the requirements specified in the Written Instructions and are in an appropriate sanitary condition for transporting the food shipments. Shipper must also ensure that mechanically refrigerated storage compartments or containers required in the Written Instructions have been adequately prepared to transport any temperature-controlled food being shipped and, if required by the Written Instructions, properly pre-cooled.
- Shipper is responsible for checking all empty containers or trailers tendered for loading and rejecting any equipment that is not in apparent suitable condition to protect and preserve Goods during transportation. Vehicles and other transportation equipment used to transport food shipments will be deemed acceptable to Shipper upon loading. Shipper’s 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.
- Unless Shipper has requested that EmergeTech arrange for the Motor Carrier to provide driver count services before dispatch and the Motor Carrier performs such driver count services, Shipper is responsible for properly counting and recording the number of pieces transported and applying a protective seal to the loaded equipment.
- Inspection and Loss or Damage to Food Shipments. Shipper acknowledges and agrees that the definition of “adulterated” as applicable to Food Shipments shall be that provided in the FD&C Act (21 U.S.C. §§ 342(a)(i)(4), 342(i)). In the event of apparent adulteration of any portion of a Food Shipment, Shipper will require its consignee to accept the entire shipment and hold the portion that is apparently adulterated for inspection. Shipper warrants that it will at its own expense obtain a reliable inspection of the Food Shipment as soon as possible after delivery by a qualified expert. Shipper acknowledges that the performing Motor Carrier will bear no liability for Food Shipments wrongfully refused by Shipper without a timely and documented determination of adulteration by a qualified expert. Shipper additionally acknowledges that if it fails to provide Written Instructions, as required above, the performing Motor Carrier will not be liable for loss or damage to Food Shipments deemed adulterated.
- Mitigating Damages. None of the provisions in this Agreement in any way limit Shipper’s obligation to mitigate its damages, including by salvaging all portions of a shipment for which there is a secondary market.
- Recordkeeping. Shipper is responsible for the recordkeeping obligations of a “Shipper” under the Food Safety Laws for all food shipments governed by this Agreement.
- Dropped Trailers. If Shipper requests that EmergeTech arrange for equipment to be dropped at a location for Shipper’s convenience and left unattended by Motor Carrier, Shipper and its consignors or consignees will not lose, damage, or misuse the equipment, and Shipper will pay for loss or damage to the equipment occurring during or as a result of such custody, control, possession, or use of the equipment.
5. MOTOR CARRIAGE
EmergeTech will use commercially reasonable efforts not to use any Motor Carrier with an “unsatisfactory” or equivalent safety rating issued by the FMCSA. EmergeTech will require proof of insurance and operating authority from each Motor Carrier engaged by it. EmergeTech agrees that the broker-carrier contracts with its Motor Carriers (each a “Broker-Carrier Contract”) will comply with all applicable federal and state regulations and will include provisions similar to those below:
- Motor Carrier Insurance. Each Broker-Carrier Contract must contain the agreement of the Motor Carrier to maintain at all times during the term of the contract insurance coverage with limits not less than the following and to provide certificates of insurance to EmergeTech verifying the following coverage:
- Comprehensive Automobile/Truckers: $1,000,000
- Liability (including UIIA and trailer interchange endorsements): $5,000,000 if transporting Hazardous Materials
- Cargo Insurance: $100,000
- Workers Compensation Insurance: As required by law
- Motor Carriers’ Safety Rating. Each Broker-Carrier Contract must prohibit the Motor Carrier, during the term of its contract with EmergeTech, from having an “unsatisfactory” or equivalent safety rating as determined by the FMCSA.
- Motor Carrier Waiver. Each Broker-Carrier Contract must state that pursuant to 49 U.S.C. § 14101(b), the parties expressly waive, to the extent permitted by law, all rights and remedies under Title 49 U.S.C. Subtitle IV, Part B to the extent they conflict with the Broker-Carrier Contract.
- Equipment. Each Broker-Carrier Contract must require the Motor Carrier to provide safe, operational equipment and not to supply any trailers or containers that have been used to transport hazardous wastes (as defined in 40 CFR § 261), or other noxious products, whether or not defined as hazardous wastes under 40 CFR Part § 261.
6. BILLS OF LADING DOCUMENTATION
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.
7. EMERGETECH COMPENSATION
- Payment for Services. will invoice Shipper for its services in accordance with the rates, charges, and provisions set forth in the EmergeTMS Marketplace via the EmergeTMS™ Transportation Management Service. Shipper agrees to be invoiced by EmergeTech twenty-four hours after the delivery date with our without Proof of Delivery, if undisputed, within thirty (30) days of the date of the invoice without offset for any amount allegedly owed to Shipper by EmergeTech. EmergeTech may assess a service charge of 1% per month (or the highest lawful rate, if less) on any late payments. Payment in full to EmergeTech of charges for a shipment will relieve Shipper, consignee, and all other entities of liability to any Motor Carrier for non-payment of freight charges for that shipment; and subject to Shipper’s payment to EmergeTech, EmergeTech covenants and agrees to indemnify Shipper and its consignee, consignor, or other responsible person or entity against liability for payment of freight charges to the Motor Carriers engaged by EmergeTech.
- Time Limits on Payment Related Claims. If Shipper alleges overcharges, duplicate payment, or other over collections, notice of such claims or unidentified payments must be given within 180 days of receipt of the invoice and a civil action or arbitration proceeding must be filed within eighteen (18) months of delivery or tender of delivery of the shipments involved. The processing, investigation, and disposition of overcharge, unidentified payment, duplicate payment, or over collection claims will be handled by Shipper and EmergeTech consistent with the procedures set forth in 49 CFR § 378.9.
8. PROVISIONS REGARDING LIABILITY FOR LOSS OF, DAMAGE TO, OR DELAY OF GOODS.
- Liability of the Motor Carriers. EmergeTech will select only Motor Carriers that agree (1) to assume the liability of a Motor Carrier for full actual loss of Goods, subject to the provisions of the 49 U.S.C. 14706, up to a maximum liability of $100,000 per shipment. Motor Carriers must agree to process and pay cargo claims in accordance with and subject to 49 CFR § 370. The Motor Carriers’ cargo liability for any one shipment will not exceed $100,000.
- Cargo Liability of EmergeTech. It is understood and agreed that EmergeTech is not a carrier or freight forwarder, and EmergeTech will not be held liable for loss, damage, or delay in the transportation of Goods unless such loss, damage, or delay is caused solely by the negligence or willful misconduct of EmergeTech. All cargo claims must be filed by Shipper directly with the responsible Motor Carrier within nine (9) months of the date of delivery or expected delivery of the Cargo. Any action at law regarding a cargo claim must be filed with the Motor Carrier within two (2) years and one (1) day of the date the Motor Carrier declines to pay any part of the cargo claim.
- Defenses. Unless negligent, neither EmergeTech nor the Motor Carriers will be liable for the following: (1) damage to Goods to the extent due to packaging, loading, unloading, blocking, bracing or securing of Goods (unless the Motor Carrier has provided loading or unloading services at Shipper’s request, in which case such Motor Carrier (but not EmergeTech) may be liable for damage to Goods caused by such loading or unloading services); (2) inherent vice or defect in Goods transported, including, without limitation, rusting of metals, swelling of wood caused by humidity, moisture or condensation, or deterioration of perishable products; (3) act of God or the public enemy; or (4) an act or default of Shipper, consignor, consignee, or beneficial owner of Goods.
- Disclaimer of Liability for Certain Types of Damages. In no event will EmergeTech or the Motor Carrier be liable to Shipper for special, incidental, or consequential damages that relate to loss of, damage to, or delay of a shipment of Goods, unless Shipper has informed EmergeTech or the Motor Carrier in written or electronic form, prior to or when tendering a shipment or series of shipments, of the potential nature, type and approximate value of such damages, and the Motor Carrier specifically agrees in written or electronic form to accept responsibility for such damages. In no event will EmergeTech or the Motor Carrier be liable to Shipper for punitive or exemplary damages that relate to loss of, damage to, or delay of a shipment of Goods.
- Time Limits To File Cargo Claims and Commence Recovery Action. Shipper may proceed with any claim for loss of, damage to, or delay in the transportation of Goods against any Motor Carrier by filing the claim directly with the applicable Motor Carrier or by commencing civil action or arbitration directly against the Motor Carrier within applicable time limits, and if requested by Shipper and agreed to by EmergeTech, EmergeTech may reasonably assist, but not be liable for, the filing and processing of Shipper’s claim with the Motor Carrier.
- Refused Shipments –Warehouse Liability. If any consignee refuses to accept Goods tendered by the Motor Carrier engaged by EmergeTech or if such Motor Carrier is unable to deliver Goods for any reason outside of its control, EmergeTech will notify Shipper of failed delivery of such failure and the reason therefor. Upon notification, Shipper will have twenty-four (24) hours within which to decide whether to store or re-route Goods to an alternative destination or back to Shipper. If Shipper advises and instructs EmergeTech to stop movement of Goods and to hold Goods in transit, or Shipper fails to provide timely instruction, at such point, the liability of the Motor Carrier engaged by EmergeTech will become that of a warehouseman. In such event, EmergeTech will advise the Motor Carrier to use ordinary care to keep Goods in a safe and suitable place for storage. Shipper will be responsible for storage costs and other reasonable costs incurred by EmergeTech for warehouseman services. If Shipper gives EmergeTech timely disposition instructions, EmergeTech will communicate the same to Motor Carrier and will use any commercially reasonable steps to abide with such instructions. Shipper will pay any additional transportation or other costs incurred in complying with Shipper’s disposition instructions.
EmergeTech agrees to procure and maintain at its own expense, at all times during the term of this Agreement, the following minimum insurance coverage amounts:
- Comprehensive general liability insurance (including contractual liability): $1,000,000
- Contingent Cargo Insurance: $100,000:
Upon request EmergeTech will cause its insurance broker or carrier to submit to Shipper a certificate of insurance as evidence of such coverage and which names Shipper as “Certificate Holder.
10. SURETY BOND
EmergeTech will maintain a surety bond or trust fund agreement as required by the FMCSA and furnish Shipper with proof upon request.
Shipper and EmergeTech will comply with all applicable laws and regulations relating to the transportation of hazardous materials as defined in 49 CFR §172.101 (or any successor regulation) to the extent that any shipments constitute hazardous materials. Shipper is obligated to inform EmergeTech at time of rate request if any such shipments do constitute hazardous materials.
12. FORCE MAJEURE
If performance by one party is affected by any condition beyond the reasonable control of such party, including fire, labor strife, riot, war, weather conditions, acts of the public enemy, acts of God, acts of terrorism, local or national disruptions to transportation networks or operations, material equipment repairs, fuel shortages, governmental regulations, or governmental request or requisition for national defense, and 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 (other than Shipper’s obligation to pay for services performed) 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. The Motor Carriers engaged by EmergeTech will be permitted an extension period equal to the period of suspension to complete shipments adversely affected by the suspension. 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 as will be specified by like notice):
Attn: Michael Brooks II
Address: 14614 N Kierland Blvd
Scottsdale, AZ 85254
Phone: (888) 736-7710
Fax: (888) 808-2230
Notice to Shipper will be provided at the address identify by Shipper during the onboarding process to participate in the EmergeTMS™ Transportation Management Service. 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 Shipper and EmergeTech, 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.
- Shipper agrees that EmergeTech’ payments to its Motor Carriers are confidential and need not be disclosed to Shipper. Shipper 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 Shipper that EmergeTech is not an agent for the Motor Carrier or Shipper and will remain at all times an independent contractor. Shipper does not exercise or retain any control or supervision over EmergeTech, its operations, employees, or the Motor Carriers.
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.