BROKER-CUSTOMER SERVICE CONTRACT
This Broker-Customer Service Contract (the “Contract”) is between Motorcycle Shippers, LLC (“Broker”) and Customer.
Now therefore the parties agree as follows:
A. “Cargo” means articles of every kind and description, including their packaging, containers, or other shipping units or materials, as to which Customer desires for Broker to arrange motor transportation (“Brokerage”) from a point of origin to a place of delivery (the “Carriage”). “Services” includes Brokerage, warehousing and distribution services, towing, packaging, crating, and rigging, and other logistics and transportation-related services, and all other services that Broker may perform or arrange for Customer.
B. “Charges” includes freight, service charges, taxes, duties, all expenses, costs, detention, demurrage, storage, interest, and any other money obligations arising out of or in any way related to the Services, and all costs Broker pays or incurs to collect any Charges from Customer, including reasonable attorneys’ fees and court costs.
C. “Customer” includes the consignor, shipper, consignee, owner of the Cargo, and any Person lawfully acting on behalf of any of the above Persons.
D. “Person” means any individual, firm, partnership, joint venture, corporation, or any other legal entity.
E. “Services” includes Brokerage, warehousing and distribution services, towing, packaging, crating, and rigging, and other logistics and transportation-related services, and all other services that Broker may perform or arrange for Customer. “Services” does not include performance of the Carriage.
2. SCOPE AND AGREEMENT TO CONTRACT: By Customer’s request to Broker to perform Brokerage or to arrange or perform any Services, Customer agrees to this Contract, which no agent or employee of the parties may alter. Customer understands and agrees that a copy of this Contract is available online to Customer at https://motorcycleshippers.com/contract or by calling Broker at (800) 730-3151 and requesting a copy.
3. BROKERAGE: As to Brokerage, Customer understands and agrees that Broker is a Title 49 property with such operating authority from the Federal Motor Carrier Safety Administration—docket number MC352946. Customer understands and agrees that Broker is neither a motor carrier nor a freight forwarder and that Broker does not hold itself out to Customer in those capacities. Customer understands and agrees that Broker will contract a motor carrier or freight forwarder to perform the Carriage or with another broker to arrange the Carriage
4. RECEIPTS AND BILLS OF LADING: Upon request by Customer, Broker will provide to Customer proof of acceptance and delivery of the Cargo in the form of a signed bill of lading or proof of delivery. Customer understands and agrees that its insertion of Broker’s name on any bill of lading shall be for Customer’s convenience only and shall not change Broker’s status as anything other than a broker that arranges motor transportation. The terms and conditions of any freight documentation that either the Broker or an underlying motor carrier may use shall not supplement, alter, or modify the terms of this Contract.
5. PAYMENTS: Broker shall invoice Customer for the Charges in accordance with the rates and additional fees, including attempt charges and wait time, as stated online at https://motorcycleshippers.com, as well as stated on any written supplements or revisions to which the parties agree in writing. Customer agrees to pay the Broker’s invoice upon receipt without deduction or setoff.
6. LIMITATION OF LIABILITY; OPPORTUNITY TO AVOID LIMITATION: In no event shall Broker or its servants or agents be or become liable for any loss of or damage to the Cargo or in connection with the Carriage in an amount exceeding the lesser of $.50 per pound or $50. Customer understands and agrees that it has had a fair opportunity to arrange for increased valuation coverage.
7. VALUATION COVERAGE & FREIGHT CLAIMS:
A. Valuation coverage is provided as shown:
i. For shipments with contract numbers beginning with “MC,” coverage has been provided by CRST. Customer must file timely notices of claim and agrees to follow the instructions provided for filing a claim at first notice of claim. Once a claim adjuster has been assigned, they will contact Customer directly to expedite the claim.
ii. Coverage for all other shipments (Contract numbers beginning with characters other than “MC”) is provided by the carrier as shown on the bill of lading as provided upon delivery.
iii. For damage claims, following review and adjustment, the valuation coverage provider may have the right, under its terms and conditions, to repair or replace any damaged cargo with goods of like kind and quality.
B. All claims must be filed in writing within 180 days from the date of any loss, shortage, or damage, which for purposes of this Contract, shall be the delivery date or, in the event of non-delivery, the scheduled delivery date. Broker agrees to forward any claims that Customer makes onto the responsible motor carrier.
8. HAZARDOUS MATERIALS: Customer shall comply with all applicable laws and regulations on the transportation of hazardous materials as defined in 49 C.F.R. section 172.800 and section 173 et seq. to the extent that any Cargo contains or is hazardous materials. Customer is obligated to inform Broker immediately if any such Cargo contains or is hazardous materials. Customer shall defend and indemnify Broker from and against any actions, claims, damages, expenses, liabilities, or penalties, including reasonable attorneys’ fees, arising out of or in any way related to Customer’s failure to comply with applicable hazardous materials laws and regulations.
9. DEFAULT: Both parties will discuss any perceived deficiency in performance and will promptly attempt to resolve all disputes in good faith. Customer shall be responsible to pay all outstanding Charges for any Services that precede the termination of this Contract.
10. INDEMNIFICATION: Customer shall defend and indemnify Broker from and against any actions, claims, damages, expenses, or liabilities, including, as to any loss, damage, or delay to the Cargo and the payment of rates, accessorial charges, or other Charges to carriers arising out of or in any way related to their performances of Carriage or other Services further to this Contract.
11. INDEPENDENT CONTRACTOR: The parties agree that Broker is not an agent of Customer or of any motor carrier that performs the Carriage. The parties agree that Broker is and shall remain an independent contractor. The parties agree that Customer does not exercise or retain any control or supervision over Broker, its operations, employees, or the motor carriers that Broker arranges to perform the Carriage.
12. FORCE MAJEURE: Neither party will incur any liability to the other if its performance of any obligation under this Contract is delayed or prevented by any of the following events: a change in any law, rule, regulation, or ordinance; any new law, rule, regulation, or ordinance; the requirements of any governmental entity or authority; war, riot, civil disorder, or other hostilities; hurricanes, typhoons, or other severe weather conditions; fire; earthquakes, floods, and other natural disasters; epidemics and quarantines; damage to or destruction of a party’s facilities or those of any of its vendors, sub-contractors, or suppliers; interruption of electricity or of the supply of oil or gas; any other event or circumstance beyond the control of the party affected; provided, however, that neither party will be excused from any obligation to make any payment under this Contract.
A. Broker shall have a general and continuing lien on any property of Customer coming into Broker’s actual or constructive possession or control for Charges Customer owes to Broker with regard to the shipment on which Broker claims the lien, a prior shipment(s), or both, including as to any Charges, freight, dead freight, demurrage, detention, and for any expenses the Broker pays or incurs for repacking, remarking, fumigation, or required disposal of faulty cargoes, for fines, dues, tolls, or commissions Broker has paid or incurred on behalf of the cargoes, for any sums, including, reasonable attorneys’ fees Broker has paid or incurred because of any attachment or other legal proceedings brought against the cargoes by governmental authorities or any Person claiming an interest in the cargoes. Broker’s lien shall survive discharge or delivery of the cargoes.
B. Broker shall provide written notice to Customer of Broker’s intent to exercise its lien rights, which notice shall state the exact amount of monies due. Customer shall notify all Persons known to have an interest in the shipment(s) of Broker’s rights or the exercise of such lien rights.
C. Unless, within 30 days of receiving notice of lien, Customer posts cash or letter of credit at sight, or if the amount due is in dispute, an acceptable bond equal to 110 per cent of the value of the total amount due, in favor of Broker, guaranteeing payment of all monies due and owing, plus all ongoing and accruing charges, such as storage, Broker shall have the right to sell such shipment(s) at public or private sale or auction and Broker shall refund to Customer any net proceeds remaining after such sale.
14. NOTICES OF CLAIM AND TIME-BARS:
A. NOTICE OF CLAIM TO BROKER AS TO SERVICES. Customer must provide Broker with written notice of a claim arising out of any Services within 90 days of the date of Broker’s performance of such Services or the date on which Broker should have performed such Services. As a further condition to Broker’s processing of such a claim, Customer must first pay all Charges as to such Services. Customer understands and agrees that the consequence of failing to provide a timely written notice of claim is that Customer’s action against Broker will be time-barred.
B. TIME-BAR. In any event, Broker shall be discharged from all liability to Customer as to any claims arising out of any Services unless Customer files an action in the mandatory venue under section 15 within nine months after of the date of Broker’s invoice to Customer for such Services.
15. MANDATORY LAW, VENUE, AND JURISDICTION: All claims or disputes arising out of or in any way related to this Contract shall be determined under the federal law of the United States of America, without regard to its conflict of laws rules or, in the absence of such federal law, then under the laws of the State of California, without regard to its conflict of laws rules. Without prejudice to a party’s right to remove an action to federal court, the exclusive and mandatory venue for any such claims or disputes shall be the federal or state courts in Orange County, California, to the exclusion of all other courts. The parties agree to irrevocably submit to the personal jurisdiction of the above courts and to waive any jurisdictional, venue, or inconvenient forum objections to those courts.
16. ENTIRE AGREEMENT: This Contract is the parties’ final expression and entire agreement arising out of or in any way relating to its subject matter. This Contract states the parties’ entire understanding. This Contract supersedes any contemporaneous and prior oral and written understandings and agreements that arise out of or are in any way related to the subject matter of the Contract. This Contract shall be binding upon and inure to the benefit of the executors, administrators, personal representatives, heirs, successors, and assigns of each party.
17. SEVERABILITY: If any provision of this Contract shall for any reason be held to be invalid or unenforceable, then the remainder of this Contract shall be unaffected and remain in effect.