Carrier Agreement
Agreement (this “Agreement) is made by and between (Company Name) and ______________(“Carrier”) to enable Customer to receive Services from Carrier under the terms and conditions contained in this Agreement.
In
consideration of the mutual covenants and agreements contained herein, the
receipt and sufficiency of which are hereby acknowledge the parties agree as
follows:
Whereas,
Carrier is in the business of providing Carrier services;
Whereas,
the “Products” are (name of product shipped by Company Name) and their
accessories and materials used by (Company Name) in the manufacture of (name of
product shipped by Company Name) and their accessories.
Whereas,
the parties recognize that the Products are very demanding of quality, timeliness,
and price, and that the essence of the relationship between (Company Name) and
Carrier is flexibility; timely delivery of necessary quantities of (Company
Name) Products; and low costs;
Whereas
problems should be encountered with respect to any aspect of this Agreement or
if the parties should encounter any problems not covered by this Agreement,
(Company Name) and Carrier shall discuss them in a cooperative and sincere
spirit and attempt to arrive at a mutually acceptable solution; and
Whereas,
this Agreement commences on ________(“Effective Date”) and terminates on
____________, 200__, (“Termination Date”) unless terminated earlier;
NOW
THEREFORE FOR GOOD AND VALUABLE CONSIDERATION, THE RECEIPT AND ADEQUACY OF
WHICH IS HEREBY ACKNOWLEDGED, AND IN CONSIDERATION OF THE ABOVE PREMISES AND
THE MUTUAL PROMISES CONTAINED IN THIS AGREEMENT, THE PARTIES AGREE AS FOLLOWS:
Terms and Conditions
1.1 Services.
1.1.1 Scope.
The Services to be provided by Carrier are described in Exhibit A that
is attached hereto and made a part hereof.
Exhibit A contains a description of the Services, Service sites, Service
specification, Service fees and Performance Standards to which the Parties have
agreed (the “Services”). This Agreement
is non-exclusive and does not commit (Company Name) to purchase any minimum
quantity of services.
1.1.2 Freedom
of Action. Nothing in this
Agreement shall prevent either party from engaging in similar business with
other persons, including, without limit, competitors of the other party,
provided that the confidentiality terms of this Agreement are not
breached. Further, it is understood
that (Company Name) makes no commitment to any specific volume or class of
business or to continue any specific volume or class of business hereunder.
1.2 Term
This Agreement shall be effective on _______ and
shall expire on __________. The parties
may extend the term or any subsequent term of this Agreement by executing a
separate written agreement of extension prior to the expiration of the term.
1.3 Warranty
1.3 Warranties. Each of Carrier’s warranties made hereunder
is materially relied upon by (Company Name) in entering into this Agreement.
1.3.1 Authority
Warranty. Each party represents and
warrants that all corporate action necessary for the authorization, execution
and delivery of this
Agreement by such party and the performance of its obligations under this Agreement has been taken. Further, each party represents and warrants that neither the execution of this Agreement nor any performance of this Agreement shall conflict with or be prohibited by any interest, agreement, obligation, contract, order, law, regulation, or duty, oral or written, to which it is a party or by which it is bound.
1.3.2 Services
Warranty. Carrier warrants that in
any services to be performed hereunder, Carrier shall:
(i) furnish all equipment and labor in such
quantities and of the proper quality to professionally and timely perform the
services;
(ii) proceed with diligence and promptness and
perform the services in accordance with the highest professional workmanship
and service standards in the field;
(iii) conform to all written, mutually agreed
standards, goals, and objectives that govern the services;
(iv) achieve ninety eight percent (98%) on-time
delivery each month in each traffic lane;
(v) perform the services to the satisfaction of
(Company Name).
The above is the Service Warranty (“Service
Warranty”). A performance of a service
which meets all of the standard of the Service Warranty shall be a Conforming
Service (“Conforming Service”).
1.3.3 Warranty
Disclaimer. EXCEPT FOR THE
WARRANTIES SET FORTH ABOVE, CARRIER GRANTS NO OTHER WARRANTIES, EITHER EXPRESS
OR IMPLIED AND DISCLAIMS ALL IMPLIED WARRANTIES OR MERCHANTABILITY AND FITNESS
FOR A PARTICULAR PURPOSE.
1.4 Remedies. In the event that service is not a Conforming Service, then
(Company Name) may elect the appropriate remedy or remedies as follows: No approval of any kind, including approval
of plans, shall affect Carrier’s following obligations.
1.4.1 Late
Delivery. If Carrier does not meet
the agreed warranted on-time delivery standard each calendar month, except for
lateness excused by force majeure, Carrier will pay to (Company Name) a rebate
equal to five percent (5
%) of the total invoiced freight charges for any and all shipments that fall
below the 98% on-time delivery.
1.4.2 Traffic
Lane Non-Conformance. If Carrier
does not meet the above-warranted on-time delivery standard for each traffic
lane, except for lateness excused by force majeure, it shall provide a get-well
plan to (Company Name) which is satisfactory to (Company Name).
1.4.3 Reperformance,
Offset, or Reimbursement. In the
case of other Non-Conforming Services, (Company Name) may elect one of the
following:
(i) Carrier agrees promptly to reperform any
service not conforming to the requirements of this Agreement when requested by
(Company Name) at no charge to (Company Name).
If Carrier, upon such notice of defect, fails promptly to reperform the
Nonconforming Service, (Company Name) may do so without further notice and
Carrier shall reimburse (Company Name) for all costs incurred in such actions.
(ii) Carrier agrees that in cases where (Company
Name) has suffered loss of or damage to the Products because of Carrier’s fault
or negligence (including without limit Carrier’s failure to meet the standards
of care set forth in this Agreement), then (Company Name) may offset such
losses or damages against any amounts due to Carrier until such losses or
damages are fully reimbursed.
(iii) Carrier agrees promptly to refund the
purchase price (if payment has been made by (Company Name) or to credit
(Company Name’s) account for such purchase price (if payment has been made by (Company
Name) of any service not conforming to the requirements of this Agreement when
requested by (Company Name).
1.5 Prices.
Freight and Express Prices are fixed for the first
year of the term of this Agreement. No
increase in costs, including without limits costs of fuel, labor or operations
shall affect the Freight and Express Prices.
The schedule set forth in
Exhibit B lists such agreed to traffic lanes, transit time and prices. Carrier and (Company Name) agree that
(Company Name) shall be given the benefit of any reduction in Carrier’s cost
base promptly and as soon as such costs reductions occur. In the event parties elect to extend the
term or any subsequent term of this Agreement, Carrier may not raise its prices
more than five percent (5%) unless it can show that its entire price increase
is due to documented cost increases in fuel, labor, and similar items.
1.6 Location, License, Permits, and Taxes
1.6.1 License. Carrier, as (Company Name’s) agent,
shall secure any necessary license or permits.
Carrier shall maintain at (Company Name’s) expense all cash bonds or
deposits as may be necessary in order to secure such license or permits.
1.6.2 Taxes. (Company Name) shall pay all duties,
imposts, fees, and taxes, including without limit sales, use, property, excise,
value added and gross receipts taxes levied on this Agreement or the (Company
Name) Products, except for any taxes levied on Carrier’s franchise, operation
(including but not limited to employment taxes), or net income. Carrier may pay any such taxes on behalf of
(Company Name) and (Company Name) shall reimburse Carrier for the same,
according to the invoice and payment procedures in this Agreement.
2.1 Carrier’s Responsibilities.
Carrier shall:
A. Maintain procedures to handle, control, and account for Products and services:
-- All shipments
must be inspected for tampering and verified against delivery documents prior
to removal. (Company Name) should be
inspected upon arrival to note any visual damage or pilferage and a physical
count should be conducted. Carrier
shall notify (Company Name) immediately of any shortages, damages, or quantity
discrepancies.
B.
Provide
the following reports:
-- Provide (Company Name) with traffic lane reports
by the tenth (10th) working day of each month and in the formats
agreed.
-- Provide
(Company Name) with a Claims Ratio Report/Loss Ratio Report by the tenth (10th)
working day of each month.
2.2 Payment
2.2.1 Terms Invoices shall be due and payable within
thirty (30) days after receipt of invoice.
In cases where an invoice is not issued, payment shall be due within
thirty (30) days after the performance of the services. (Company Name’s) payment advice shall
reference Carrier’s invoice number(s) and date(s).
2.2.2 Currency. Unless expressly provided to the contrary,
all amounts stated in this Agreement and all sums payable under this Agreement
shall be denominated in United Stated Dollars and all payments made under this
Agreement shall be made by wire transfer, cashier's check, or other ready funds
in United States Dollars to payee’s account at payee’s designated United States
bank. Forwarder agrees to U.S. Dollars
for billing purposes, Carrier will only utilize the Wall Street Journal
business buying rate from Monday (published in Tuesday edition) for all
shipments made between any Monday and the following Sunday, and that no other
surcharge or exchange fees will be chargeable.
2.2.3 Disputes. (Company Name) shall have one (1) year after
the invoice date to contest in good faith the amounts and items charged. Amounts subject to good faith contest are
not due and payable until thirty (30) days after the dispute is resolved.
2.2.4 Statements. Carrier’s periodic statements shall list all
open invoices, invoice dates, and amounts unpaid; payments received during the
prior period, and credits, issued during the prior period.
2.2.5 Payment
Applications. Payments shall be
applied to open invoices solely according to (Company Name’s) payment advice.
2.2.6 Credits. Credits or credit memos shall be paid
immediately to (Company Name), unless (Company Name) directs in writing that
the amounts are to be applied as offsets to any open invoices.
3.1 General Indemnity
3.1 General
Indemnity. Carrier shall, in all
its performance under this Agreement, fully comply with all applicable
national, state, and local laws, rules, regulations, and ordinances and shall
indemnify and hold harmless (Company Name) from and against any loss, claim,
damage, liability, expense, or cost (including without limitation attorney’s
fees and court costs) resulting from failure of such compliance, or out of any
other negligence or willful misconduct by Carrier or those acting on Carrier’s
behalf.
3.1.2 Forfeitures. Any losses sustained by (Company Name) due
to the forfeiture or seizures of cash bonds or deposits will be solely to the
account of (Company Name), unless such losses, forfeitures or seizures are due,
in whole or in part, to the error of fault of Carrier or of any contractor,
subcontractor, agent, or employee of Carrier.
In such a case, the liability of Carrier is to reimburse (Company Name)
for such losses in direct proportion to the forfeiture of seizure of cash bonds
or deposits.
3.1.3
Carrier Liability.
A. The parties agree that Carrier’s care, custody and control over the (Company Name) Products shall commence when the (Company Name) Products are loaded from (Company Name’s) dock to the common Carrier and shall be terminated when the (Company Name) Products are loaded from the common Carrier to (Company Name’s) dock or such other destination as (Company Name) may have designated.
B. If
Carrier or any contractor, subcontractor, agent, or employee of Carrier shall
fail to meet the standards of care, performance or operation set out in this
Agreement and its Exhibits, then Carrier shall be liable for loss of or injury
to the (Company Name) Products while in Carrier’s care, performance, custody,
and control. Carrier agrees to be
subject to the Carmack Amendment to the Interstate Commerce Act, the conditions
of the Pomerene Act and other legislative decisions pertaining to the
processing of loss and damage claims.
Carrier shall process 90% of all claims filed by (Company Name) within
45 days of (Company Name’s) filing date.
The remaining 10% shall be processed within 60 days.
3.2
General Liability Each party will indemnify the other against and hold it harmless
from any loss, cost, liability or expense (including court costs and reasonable
fees of attorneys and other professionals) to the extent it arises out of or in
connection with, in whole or in part, any negligence or willful act or omission
of it or its employees or agents including but not limited to any such act or
omission that contributes to:
(i) any bodily injury, sickness, disease or death; or
(ii) any injury or destruction to tangible or intangible property of the other or any related loss of use.
3.3 Limitation of Liability IN NO EVENT SHALL EITHER PARTY BE LIABLE TO ANY PERSON FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT, OR INCIDENTAL DAMAGES, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING IN ANY WAY OUT OF THIS AGREEMENT OR ANY AGREEMENT, UNDERTAKING, OR PERFORMANCE THAT MAY BE PROMISED, PERFORMED, OR EXECUTED TO IMPLEMENT THIS AGREEMENT, PROVIDED HOWEVER, THAT THIS LIMITATION SHALL NOT APPLY TO EITHER THE INDEMNITY OBLIGATIONS OR TO A BREACH OF THE CONFIDENTIALITY OBLIGATIONS OF THIS AGREEMENT.
3.4
Insurance
Carrier shall maintain comprehensive general and vehicular liability insurance for claims for injury or death to persons and damage to property, as required by federal, state and local laws, statutes and ordinances governing the amount and coverages set forth below:
- Workers’ compensation with (1) statutory limits of coverage; and (2) although not required by statute, coverage for any employee entering onto (Company Name).
- Employers’ Liability or “Stop Gap” Insurance with limits of not less than One Hundred Thousand Dollars ($100,000.00) each accident.
- Commercial General Liability Insurance covering claims for bodily injury, death, personal injury or property damage occurring or arising out of the performance of this Agreement, including coverage for independent contractor’s protection (required if any work will be subcontracted), premises-operation, products/completed operations and contractual liability with respect to the liability assumed by Carrier hereunder. The limits of insurance shall not be less than:
Each Occurrence $1,000,000.00
General Aggregate Limit $2,000,000.00
Products-Completed Operations Limit $1,000,000.00
Personal & Advertising Injury Limit $1,000,000.00
- Comprehensive Automobile Liability Insurance covering the ownership, operation, and maintenance of all owned, non-owned and hired motor vehicles with limits of not less than One Million Dollars ($1,000,000.00) single coverage per occurrence for bodily injury and property damage. Such insurance shall also extend by endorsement to primary automobile liability and physical damage coverage for any (Company Name) owned or leased vehicle when such vehicle is used by Carrier.
Carrier shall provide (Company Name) with a certificate of insurance evidencing the forgoing coverage, naming (Company Name) as an additional insured, and providing for 15 days notice to (Company Name) of any material changes in the coverage.
ARTICLE IV – DISPUTE RESOLUTION
4.1
Arbitration
4.1.1 Binding Arbitration. Any controversy, claim, or action, whether in law or at equity, whether in tort, contract, warranty, or otherwise, arising out of, relating to, or involving this Agreement and any agreement, undertaking, or performance that may be promised, performed, or executed to implement this Agreement will be settled by arbitration as follows:
(i) Any arbitration proceeding shall be conducted under the laws of the state of Colorado and the Federal Arbitration Act, and pursuant to the International Commercial Arbitration Rules of the American Arbitration Association insofar as such International Commercial Arbitration Rules do not conflict with the provisions of this Section.
(ii) Either party may initiate arbitration by giving notice to the other stating an intention to arbitrate, the issue to be arbitrated, and the relief sought. The site for any arbitration proceeding shall be (Name of City and State). No arbitrator shall have been employed or retained in any capacity or affiliated with either party during the prior ten (10) years.
(iii) The arbitrators shall promptly, by majority vote, make such award and determination as is appropriate and in accordance with the terms of this Agreement. The parties will faithfully abide by and perform any award rendered by the arbitrators. Further, any such award and determination shall be final and binding upon the parties and enforceable in any court of competent jurisdiction.
(iv) The arbitration proceedings and all pleadings and written evidence shall be in the English language. Any written evidence originally in a language other than English shall be submitted in English translation accompanied by the original or a true copy.
(v) The prevailing party in such proceeding shall be entitled to collect reasonable attorneys’ fees from the other party.
4.2
Choice of Law
4.2.1 Choice of Law. This Agreement and any agreement, undertaking, or performance that may be promised, performed or executed to implement this Agreement shall be governed by and construed under the laws of the State of (State Name), as they apply to agreements made between residents of (State Name) for performance solely within (State Name). The parties expressly agree that this Agreement any agreement, undertaking, or performance that may be promised, performed, or executed to implement this Agreement shall not be subject to and shall not be interpreted by the United Nations Convention on Contracts for the International Sale of Goods.
4.2.2 Compliance with Laws. Carrier shall be responsible for obtaining, at Carrier’s cost, all necessary administrative and governmental licenses, approvals, and permits and shall generally comply with all laws and regulations for the performance of this Agreement (“Governing Laws”).
4.2.3 Foreign Corrupt Practice Act. (Company Name) is subject to the laws and regulations of the United States including the Foreign Corrupt Practices Act “(FCPA”). Carrier shall not use any payment or other benefit derived from (Company Name) to offer, promise or pay any money, gift or any other thing of value to any person for the purpose of influencing official actions or decisions affecting this Agreement or with the intention of obtaining or maintaining any business related to (Company Name), while knowing or having reason to know that any portion of this money, gift or thing will, directly or indirectly, be given, offered or promised to:
(i) Any employee, officer, or other person acting in any official capacity for any government or its instrumentalities; or
(ii) Any political party, party official or candidate for political office.
Further, Forwarder shall maintain books, records, and systems of accounting and control adequate to insure that Carrier’s assets and operations are accounted for that Carrier’s business is carried out according to the direction of Carrier’s managers.
4.2.4 Assurances and Compliance. Carrier shall provide (Company Name) with the assurances and official documents that (Company Name) periodically may request to verify Carrier’s compliance with the Governing Laws or FCPA. Actions violating the Governing Laws or FCPA are material breaches of this Agreement and may result in civil or criminal penalties.
4.3 Limit of Time To Bring Action. No actions or arbitration’s regardless of form, arising out of this Agreement, may be brought by either party more than one (1) year after such actions or arbitration’s arose, or in the case of nonpayment, more than one (1) year from the date the last payment was due.
ARTICLE V – GENERAL
5.1 Term and Termination
5.1.1 Term. This Agreement shall become effective on the Effective Date and shall remain in force until the Termination Date.
5.1.2 Renewal. The parties may agree in writing to extend this Agreement for one or more terms of one (1) year.
5.1.3 Termination for Convenience. This Agreement may be terminated in whole or in part at any time by (Company Name) for its own convenience. Any such termination will not be construed as a breach. (Company Name)’s exclusive liability and Carrier’s exclusive remedy for such termination will be payment to Carrier for the actual services completed as of the effective date of cancellation. In no event will (Company Name’s) liability in the aggregate exceed the total price which would have been paid under this Agreement for the work had it not been terminated. Carrier’s termination claim must be submitted in writing no later than 30 days from the date of receipt of termination notice.
5.1.4 Termination for Cause. This Agreement shall be terminated for cause:
(i) If either party materially defaults in the performance of any provision of this Agreement, then the non-defaulting party may give written notice to the defaulting party that if the default is not cured within thirty (30) calendar days, the Agreement will be terminated at the end of that period and such termination shall not prejudice or limit either party’s remedies; or
(ii) If either party violates any intellectual property, confidentiality, or license provision of this Agreement, then the non-defaulting party may give written notice to the defaulting party of such violation and of immediate termination and the Agreement will be terminated when such notice is given and such termination shall not prejudice or limit either party’s remedies; or
(iii) Upon:
(a)