BROKER-SHIPPER TRANSPORTATION CONTRACT
This Broker-Shipper Transportation Contract (the“Contract”) is by and between Motorcycle Shippers, Inc (“BROKER”), a California corporation with principal offices in California, (800)730-3151 and SHIPPER. “SHIPPER” means the person and/or entity tendering the cargo, paying the charges, shipper, consignee, purchaser, seller, and anyone with a financial interest in the cargoes shipped. A copy of this Contract can be found at motorcycleshippers.com. NOW THEREFORE, intending to be legally bound, BROKER and SHIPPER agree as follows:
1. SCOPE OF SERVICE:The BROKER is a duly licensed broker by the Federal Motor Carrier Safety Administration(“FMCSA”) under Docket Number MC 352946, and as a licensed broker, arranges for the motor transportation of cargoes. A copy of the BROKER’s authority is incorporated by reference herein and is available online at motorcycleshippers.com. The SHIPPER, to satisfy some of its transportation needs, desires to utilize the services of the BROKER to arrange for the motor transportation of the SHIPPER’s cargoes. The BROKER agrees to arrange the motor transportation of the SHIPPER’s cargo under the terms and conditions of this Contract and in compliance with all federal, state, and local laws and regulations governing the brokerage of cargoes covered by this Contract. The SHIPPER understands and agrees that the BROKER is not a motor carrier. The BROKER’s responsibility under this Contract shall be limited to arranging for, but not actually performing, the motor transportation of the SHIPPER’s cargoes.
2. RECEIPTS AND BILLS OF LADING:Upon request by the SHIPPER, the BROKER agrees to provide to the SHIPPER proof of acceptance and delivery of such loads in the form of a signed bill of lading or proof of delivery, as the SHIPPER may specify. The SHIPPER understands and agrees that its insertion of the BROKER’s name on any bill of lading shall be for the SHIPPER’s convenience only and shall not change the 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.
3. PAYMENTS: The BROKER shall invoice the SHIPPER for services under this Contract in accordance with the rates, charges, provisions, additional fees and charges, including, without limitation, attempt charges and wait time, as set forth online at motorcycleshippers.com as well as any written supplements or revisions to which the parties agree in writing. The SHIPPER agrees to pay the BROKER’s invoice upon receipt without deduction or set off.
4. LIMITATION OF LIABILITY; OPPORTUNITYTO AVOID LIMITATION: In no event shall the BROKER or its servants and/or agents be or become liable for any loss of or damage to or in connection with the motor transportation of the cargo in an amount exceeding the lesser of $.50 per pound or $50. The SHIPPER understands and agrees that it has had a fair opportunity to arrange for increased valuation coverage on the shipping instruction form. This form is incorporated by reference and is available online at motorcycleshippers.com.
5. VALUATION COVERAGE & FREIGHT CLAIMS:
A. Valuation Coverage is provided through XL Catlin Insurance Company.
i. The SHIPPER must file timely notices of claim and agrees to follow the instructions provided for filing a claim at first notice of claim . First Notice of Claim should be emailed to XL Catlin Insurance Company at: [email protected], (610) 968 9429. XL Catlin Insurance Company will be handling all claim matters on behalf of Motorcycle Shippers. Once a claim adjuster has been assigned, they will contact the SHIPPER directly in order to expedite the claim.
ii. For damage claims, following their 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.
iii. A complete copy of the terms and conditions governing valuation coverage is incorporated herein by reference and available upon request. In the event that the SHIPPER has a claim for cargo loss,shortage, or damage arising out of the motor transportation of cargo that the BROKER arranged under this Contract,the SHIPPER shall file a written notice of claim with the BROKER’s claims agent as set forth above.
B. All claims shall be filed in writing within one hundred eighty (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. The BROKER agrees to forward any claims that the SHIPPER makes onto the responsible motor carrier.
C. The SHIPPER understands and agrees that the BROKER is not a motor carrier. Accordingly, the SHIPPER understands and agrees that the BROKER shall not be liable for loss, damage, or delay in the motor transportation of the SHIPPER’s cargo.
6. HAZARDOUS MATERIALS:The SHIPPER shall comply with all applicable laws and regulations on the transportation of hazardous materials as defined in 49 C.F.R. section 172.800and section 173 et seq. to the extent that any shipments under this Contract contain or constitute hazardous materials. SHIPPER is obligated to inform BROKER immediately if any such shipments do contain or constitute hazardous materials. The SHIPPER shall defend, indemnify, and hold the BROKER harmless from any penalties or liability of any kind, including, without limitation, attorneys’ fees, arising out of or in any way related to the SHIPPER’s failure to comply with applicable hazardous materials laws and regulations.
7. DEFAULT: Both parties will discuss any perceived deficiency in performance and will promptly endeavor to resolve all disputes in good faith. The SHIPPER shall be responsible to pay the BROKER for any services performed prior to the termination of this Contract and for shipments not yet completed and/or not yet invoiced to the SHIPPER.
8. INDEMNIFICATION: The SHIPPER shall defend, indemnify, and hold the BROKER harmless against any claims, actions, or damages, including, but not limited to, cargo loss, damage, or delay, and payment of rates and/or accessorial charges to carriers, arising out ofor in any way related to their respective performances under this Contract.
9. INDEPENDENT CONTRACTOR:The parties agree that the BROKER is not an agent for the SHIPPER or any underlying motor carrier.The parties agree that the BROKER is and at all times shall remain an independent contractor.The parties agree that the SHIPPER does not exercise or retain any control or supervision over the BROKER, its operations, employees, or the motor carriers with which the BROKER arranges the transportation of the SHIPPER’s cargoes.
10. 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 govern mentor 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, for any reason whatsoever, from any obligation to make any payment in accordance with the terms of this Contract.
11. LIEN:A. The BROKER shall have a general and continuing lien on any and all property of the SHIPPER coming into the BROKER’s actual or constructive possession or control for monies owed to the BROKER with regard to the shipment on which the lien is claimed,a prior shipment(s), and/or both, including without limitation, freight, dead freight demurrage, detention, any charges, and for any expenses the BROKER incurs for repacking, remarking, fumigation, or required disposal of faulty cargoes, for fines, dues, tolls,or commissions the BROKER has paid or advanced on behalf of the cargoes, for any sums, including,without limitation, for legal expenses the BROKER has 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. The BROKER’s lien shall survive discharge or delivery of the cargoes.
B. The BROKER shall provide written notice to the SHIPPER of the BROKER’s intent to exercise its lien rights, which notice shall set forth the exact amount of monies due and owing. The SHIPPER shall notify all parties having an interest in the shipment(s) of the BROKER’s rights and/or the exercise of such lien rights.
C. Unless, within thirty days of receiving notice of lien, the SHIPPER 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, the BROKER shall have the right to sell such shipment(s) at public or private sale or auction and the BROKER shall refund to the SHIPPER any net proceeds remaining after such sale.
12. TIME FOR SUIT, CHOICE OF LAW ANDVENUE:A. Any and all claims must be filed against the BROKER within nine months after the delivery of the cargo. The failure to file a claim within the aforementioned nine-month period shall result in the claim’s being time-barred and the BROKER’s discharge from any and all liability, whether in contract, tort, or otherwise. The BROKER shall not pay any time-barred claims. A timely notice of claim is a condition precedent to the right to institute a timely lawsuit against the BROKER,as set forth below in sub-paragraph (B).
B. Any lawsuits for claims shall be filed in court against the BROKER no later than two years and one day from the date of delivery. Assuming a timely notice of claim, the failure to file a timely lawsuit within the aforementioned two-year-and-one-day period shall result in the claim’s being time-barred and the BROKER’s discharge from any and all liability,whether in contract, tort, or otherwise. The BROKER shall not pay any time-barred claims.
C. This Contract and the parties’ relationship shall be construed according to the laws of the State of California, without giving consideration to principles of conflict of law. The parties agree that all claims or disputes hereunder or questions arising out of or in any way relating to the Contract shall be determined only in the federal or state courts located in Orange County,California, to the exclusion of all other courts,and the parties further agree to submit to the personal jurisdiction of the aforementioned courts.
13. ENTIRE CONTRACT: This Contract is the entire agreement of the parties relating to its subject matter. This Contract supersedes any and all contemporaneous and prior oral and written understandings and agreements arising out of or in any way related to BROKER’s arranging of the transportation of cargoes on behalf of SHIPPER. The parties to this Contract may only modify, alter, and/or amend its terms and conditions in writing signed by both. A unilateral attempt to modify, alter, or amend this Contract shall be null and void.
14. 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 thereby, and remain in full force and effect.
Shipper shall note any damage on the inventory sheet when receiving the shipment. Loose or removable items are excluded from valuation coverage. Accessorial charges, including but not limited to, pick-up or delivery attempts, dock storage, waiting time and change of contract are subject to additional charge. Customs duties, custom brokerage fees and taxes are the sole responsibility of the importer of record and not included in our charges. Motorcycle Shippers, Inc does not warrant the accuracy of year, make or model numbers. Service dates and transit times are approximations only, subject to change and are not guaranteed.
VIP Express Service:
In the unlikely event of failure to perform the VIP Express Service as shown the specified amount will be refunded. Services cannot be cancelled once requested; change of address will nullify the commitment. Attempted delivery by the carrier will satisfy the commitment. VIP Express Service applies to the committed day only, and not a specific time or window of time within a day. Delivery failure must have been within the carriers control and not an Act of God or the public enemy, fire, flood, closing of public highways or any other event beyond the carrier’s control.