These Terms of Service (“Terms of Service” or “Agreement”) are effective by and between Freightwell Logistics, LLC, a Texas limited liability company (“Broker”) and Shipper (as defined below).
A.     Broker is a federally-licensed freight broker as deﬁned by 49 USC §13102(2) under authority granted by the Federal Motor Carrier Safety Administration (“FMCSA”) of the U.S. Department of Transportation.
B.     Broker provides the service of arranging the transportation of cargo between Shippers and Motor Carriers (the “Service”). Broker performs the Services via various forms of digital communication, including but not limited to Broker’s proprietary website and/or App.
C.     For purposes of this Agreement, and unless otherwise indicated, these terms shall have the following meanings:
(I)     “Broker” shall mean Freightwell Logistics, LLC, a Texas limited liability company.
(II)     “Carrier” shall mean the Motor Carrier entering into this Agreement.
(III)     “Carrier Fee” shall mean the freight charge quoted by Carrier upon acceptance of the Load by Carrier.
(IV)     “Customer” shall mean any individual or entity (Shipper or Carrier) that engages Broker to perform the Service.
(V)     “Customer Content” shall mean any information and data provided by a Customer to Broker or uploaded onto Broker’s digital platform.
(VI)     “Load” shall mean a specific shipment.
(VII)     “Load Information” shall mean the information provided by Shipper to Broker to complete the transportation of a Load by Carrier.
(VIII)     “Motor Carrier” shall have the meaning ascribed to that term under 49 USC §13102(14).
(IX)     “Shipper” shall mean the party entering into this Agreement who meets the definition of shipper under 49 USC §13102(13).
(X)     “Service” has the meaning given to it under Preliminary Statement “B” above.
In consideration of the above statements, Broker and Shipper agree as follows:
1.     Performance of Service.
(a)     Broker’s Platform. Broker’s digital platform shall provide detailed instructions to Carrier regarding the use of the Service. Such instructions may be modified on the digital platform from time to time at Broker’s discretion. In the absence of a digital platform such as a proprietary website and/or App (whether due to such digital platform being under development or such platform being temporarily disabled), Broker may use telephone, email, videoconference, and/or other means of communication to perform the Service. Broker reserves the right, at any time, to modify, suspend, or discontinue its digital platform or any part thereof with or without notice. Carrier agrees that Broker will not be liable to Carrier or to any third party for any modiﬁcation, suspension, or discontinuance of its digital platform.
(b)     Rates and Payment. Shipper will pay Broker the freight charge quoted to the Shipper upon acceptance of the applicable Load on the Service (the “Carrier Fee”).
(c)     Rates of Carrier Fee. Carrier acknowledges and agrees that Broker (or its assigns, as applicable) is the exclusive party that will pay the Carrier Fee to Carrier. Carrier shall look solely to Broker for payment of the Carrier Fee unless Broker gives Carrier its written consent to Carrier prior to any attempt by Carrier to seek payment from Shipper or any other responsible third party.
(d)     Third-Party Payment Processing. All charges are facilitated through a third-party payment processing service. Broker may replace its third-party payment processing services from time to time without prior notice to Carrier.
(e)     Safe Use of Digital Platform. Customer agrees to use the digital platform in a manner and place that is safe and will not cause accidents.
2.     Customer Content.
Customer Content shall be governed by the following provisions:
(a)     License. Customer grants Broker a worldwide, perpetual, irrevocable, and nonexclusive license to use Customer Content in all formats now known or hereafter devised, including the right to create derivative works from such Customer Content.
(b)     Intellectual Property in Broker’s Platform. Customer acknowledges that all of the intellectual property rights in Broker’s platform are owned by Broker. Any use of Broker’s platform not specifically authorized under this Agreement is strictly prohibited. Customer warrants that it shall not use Broker’s platform with the intent of reverse engineering the platform to build a competing service.
(c)     Data Network and Devices. Customer acknowledges that it is solely responsible for obtaining its own electronic devices required to access Broker’s digital platform and/or communicate with Broker and other Customers using the Service. Customer acknowledges that Broker is not responsible for the payment or reimbursement of Customer’s internet charges, network coverage charges, SMS/MMS text message rates, or any other third-party charges to Customer that Customer may incur in connection with the use of the Service. Customer acknowledges that Broker cannot guarantee the functionality of the devices and data networks used by Customer.
(a)     Statutory Requirements Imposed on Broker. Broker shall comply with all insurance and bonding requirements imposed upon it by law, including but not limited to all surety bond or trust fund requirements.
(b)     Statutory Requirements Imposed on Carrier. The insurance policies shall at comply with minimum requirements of the Federal Motor Carrier Safety Administration and any other applicable regulatory agency.
(c)     Certificates of Insurance. In addition to the statutory requirements listed above, Carrier shall also furnish Broker with Certificates of Insurance for the following insurance coverages subject to the following minimum limits:
(i) Automobile Liability Insurance to include any automobile, or all owned, non-owned, and hired automobiles, covering bodily injury (including injury resulting in death) and loss of or damage to property in an amount not less than $1,000,000 per incident. If applicable law, rule or regulation requires Carrier to maintain amounts in excess of these limits, Carrier shall provide such higher limits.
(ii) Motor Truck Cargo Liability Insurance in the amount not less than $100,000 per incident, and shall not contain any exclusions for employee theft or dishonesty, unattended or unattached trailers, or otherwise likely to result in denial of claims (including commodity specific exclusions, exclusions for corrosion, or exclusions related to use of refrigerated equipment, including breakdown). If Carrier maintains limits in excess of these amounts, Carrier may qualify for shipments not otherwise available to Carriers only maintaining such minimum amounts.
(iii) Workers compensation within limits required by law.
(iv) Any additional insurance coverages that may be required by Broker from time to time.
(v) Nothing in this Agreement shall be construed to avoid or limit Carrier’s liability to any policy limited or exclusion or deductible in any insurance policy.
(a)     Carrier warrants that Carrier shall perform all transportation services pursuant to this Agreement with equipment that is regularly maintained and is in good order, condition and repair and that meets with all applicable federal and state laws, rules and regulations.
(b)     Carrier shall not supply equipment that has been used to transport hazardous wastes of any kind, including, solid, liquid, or hazardous, regardless of whether they meet the deﬁnition in 40 C.F.R. §261.1 et. seq.
(c)     Carrier shall furnish equipment for transporting cargo which is clean, dry, leak proof, free from harmful or oﬀensive odor, sanitary, and free of any contamination, suitable for the Load being transported and which will not cause in whole or in part adulteration of the Load as deﬁned in 21 U.S.C § 342.
5.     Loading of Cargo. Unless a trailer is pre-loaded and sealed prior to Carrier’s arrival at destination, and the applicable bill of lading bears a “shipper load and count”, “SLC” or similar designation, Carrier is solely responsible to ensure that all equipment has been properly loaded, secured, blocked and braced.
6.     Bill of Lading. Carrier shall not insert Broker’s name on any receipt, bill of lading, manifest, or other shipping document.
7.     Carrier Liability for Cargo Loss or Damage.
(a)     Carrier’s liability for lost, destroyed, damaged or delayed Loads is governed by 49 USC §14706 (“the Carmack Amendment”) regardless of whether such standard would apply in the absence of this Agreement.
(b)     Carrier shall be responsible for charges assessed against Broker with respect to late deliveries by Carrier regardless of whether there is loss, damage or destruction to the Load in question.
(c)     Broker may assist Shippers with claims against Carriers for lost, damaged, delayed or destroyed cargo and Carrier acknowledges and agrees that Broker may likewise ﬁle such claims directly on behalf of Shipper. Shipper and Broker shall have sixty (60) days from the date of delivery of any Load (or, if no delivery, then not less than sixty (60) days months from the date on which delivery should have occurred) during which to ﬁle claims. Subject to Section 21, Shipper and Broker shall have not less than one (1) year from the date of denial of all or any part of any such claim during which to initiate a legal proceeding with respect to such claim. Carrier will pay, deny or oﬀer to settle any claim hereunder within thirty (30) days of submission. Otherwise, 49 C.F.R. Part 370 will govern processing of claims.
(d)     Shipper shall have sole discretion as to whether to allow salvage of any damaged Loads. If no salvage is allowed, Carrier shall not be entitled to a credit for salvage value. Any expenses incurred in preparation of goods for salvage shall be borne by the party at fault for the damaged Load.
(e)     Any attempt to limit Carrier’s liability for lost, destroyed, or delayed Loads shall be deemed null and void. Exclusions in Carrier’s insurance coverage shall not exonerate Carrier from such liability.
8.     Compliance with Instructions. Carrier and Carrier’s drivers shall comply with any and all instructions regarding the handling of the Load which are communicated to Carrier by Shipper and/or Broker, whether pursuant to the Service, on the applicable bill of lading, or via other documentation provided to the Carrier.
(a)     Indemnification of Broker. Carrier agrees to defend, indemnify and hold Broker (and Broker’s oﬃcers, employees, agents, and assigns) harmless, including costs and attorneys’ fees, from any and all damages, claims or losses arising out of Carrier’s performance of this Agreement, to the extent such damages, claims or losses are caused by Carrier or Carrier’s employees’ or agents’ negligence or intentional conduct. Broker reserves the right, at Carrier’s expense, to assume the exclusive defense and control of any matter for which Carrier is required to indemnify Broker. Carrier agrees to cooperate in good faith with Broker in the defense of such claims. Carrier agrees not to settle any matter without the prior written consent of Broker. Broker will use reasonable eﬀorts to notify Carrier of any such claim, action or proceeding upon becoming aware of it.
(b)     Indemnification of Shipper. Carrier agrees to defend, indemnify and hold Shipper (and their oﬃcers, employees, and agents) harmless, including costs and attorneys’ fees, from any and all damages, claims or losses arising out of Carrier’s performance of this Agreement, to the extent such damages, claims or losses are caused by Carrier or Carrier’s employees’ or agents’ negligence or intentional conduct.
Any notice required by or permitted under this Agreement must be in writing. Any notice required by this Agreement will be deemed to be delivered (whether actually received or not) when deposited with the United States Postal Service, postage prepaid, certified mail, return receipt requested, and addressed to the intended recipient at the address shown in this contract. Notice may also be given by regular mail, personal delivery, courier delivery, facsimile or electronic transmission, or other commercially reasonable means and will be effective when actually received. Any address for notice may be changed by written notice delivered as provided herein. Copies of each notice must be given by one of these methods to the attorney of the party to whom notice is given. Accordingly, notices are to be delivered to the parties at the following addresses:
11.     Acknowledgement of Broker’s Role in Transaction. Carrier acknowledges that Broker is not a Motor Carrier and that Broker does not take possession, custody or control of any cargo. Carrier acknowledges that Broker is not subject to the regulatory or legal requirements or liability of a Motor Carrier. Broker has no responsibility or liability for any transportation or motor carrier services provided to any Shipper or any other party using the Services. It is Carrier’s obligation to provide the transportation services under this Agreement. Carrier acknowledges that Broker will never be in possession of any cargo being transported in connection with use of the Service, and that Broker will not be responsible or have any role in the securement of cargo for transportation.
12.     Independent Contractor.
(a) Carrier acknowledges that this Agreement does not make Carrier an agent, legal representative, joint venture, or partner of Broker for any purpose. Carrier acknowledges and agrees that Carrier is an independent contractor of Broker and that Carrier is in no way authorized to make any contract, warranty or representation on behalf of Broker, or to create any obligation express or implied on behalf of Broker. As an independent contractor, Carrier acknowledges that it is not entitled to any plans, distributions, or beneﬁts extended by Broker to its employees.
(b) Carrier acknowledges that: (i) it is solely responsible for screening, selecting, hiring, training, supervising, managing, assigning, and dispatching its drivers; (ii) it is solely responsible for the inspection and maintenance of its motor vehicle equipment and accessories; (iii) it is solely responsible for its compliance with regulatory and safety requirements; (iv) it is solely responsible for the management of its equipment, services, drivers, employees, contractors, agents and servants.; (v) it has the sole duty to provide, maintain, manage and control the equipment, personnel, and expertise required to transport Shipper’s cargo.
13.     Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
14.     Amendment. Subject to Section 1(a), this Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each party hereto.
15.     Assignment. Carrier may not subcontract or assign, whether in writing or orally, any of its rights or obligations under this Agreement or permit the same to be transferred, assigned or encumbered by operation of law or otherwise, without the prior written consent of Broker. Carrier automatically assigns to Broker its rights to collect the Carrier Fee and any other freight charges due and payable from Shipper or any responsible third party.
16.     Transportation Within State of California If Carrier transports any cargo within the State of California, Carrier shall comply with all applicable California regulations, including but not limited to regulations promulgated by the California Air Resources Board.
17.     Safety Rating. Carrier warrants that it does not have an “unsatisfactory” or “conditional” safety rating issued by the FMCSA or U.S. Department of Transportation. Broker shall notify Broker in writing immediately if its safety rating is changed to “unsatisfactory” or “conditional”.
18.     Term. his Agreement will remain in full force and effect until the earliest to occur of the following: (i) Carrier ends its use of the Service and has delivered all Loads; (ii) Carrier ends its use of the Service and has not delivered its final Load booked on the Service due to loss or accident (in such event, the date of Termination shall be the date on which the Load was scheduled to be delivered); or (iii) Broker has terminated this Agreement with Carrier due to Carrier’s material breach of this Agreement or poor performance under this Agreement as determined in Broker’s sole discretion.
19.     Non-Solicitation. During the term of this Agreement, and for a period of one (1) year from its termination, Carrier shall neither initiate nor accept any direct or indirect business relationship with any Shipper where Loads to or from such Shipper were ﬁrst transported pursuant to the Service, or in connection with use of the Service. For purposes of this Agreement, the date of termination of this Agreement shall be either: (i) the date of the successful delivery of the Load; or (ii), in the event the Load is not delivered due to loss or accident, the date that the Load was scheduled to be delivered.
20.     Benefit. his Agreement shall be binding upon and inure to the benefit of the parties and their respective legal representatives, successors and permitted assigns.
21.     Dispute Resolution.
(a)     In the event of a dispute arising out of this Agreement related to claims by or against Broker, a party’s recourse shall be exclusively settled through binding and conﬁdential arbitration. Arbitration shall be subject to the Federal Arbitration Act. The arbitration shall be conducted before one arbitrator from the Transportation ADR Council, Inc. (“TAC”). Arbitration proceedings shall be conducted under the rules of the TAC.
(b)     Upon agreement of the parties, arbitration proceedings may be conducted outside of the administrative control of the TAC. The decision of the arbitrator shall be binding and ﬁnal and the award of the arbitrator may be entered as judgment in any court of competent jurisdiction. The prevailing party shall be entitled to recovery of costs, expenses and reasonable attorney fees as well as those incurred in any action for injunctive relief, or in the event further legal action is taken to enforce the award of the arbitrator.
(c)     Arbitration proceedings shall be conducted in El Paso County, Texas, or at such place as mutually agreed upon in writing by the parties. At any time, either party may apply to a court of competent jurisdiction in El Paso County, Texas for injunctive or other equitable relief. In the event that either party is granted equitable relief, the party against whom judgment is entered shall be liable for all costs and expenses incurred by the prevailing party including, but not limited to, reasonable attorney fees. This paragraph shall not apply to enforcement of an award of arbitration.
22.     Governing Law. his Agreement shall be governed and construed in accordance with the laws of the State of Texas.
23.     Facsimiles, Electronic Mail (e-mail), Counterpart Signatures. A facsimile copy of this Agreement or a copy of this Agreement transmitted by e-mail containing the signature of any party shall be accepted as the original and shall be binding upon the signing party to the same extent as would a copy of this Agreement containing the party’s original signature. Upon request of a party, a party signing and delivering this Agreement by facsimile or e-mail shall deliver to the requesting party a copy hereof containing the signing party’s original signature. Any signatures of the parties may be obtained in two or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument.
24.     Disclaimer. HE SERVICE IS PROVIDED "AS IS" AND "AS AVAILABLE." BROKER EXPRESSLY DISCLAIMS ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED OR STATUTORY, INCLUDING THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON- INFRINGEMENT. BROKER MAKES NO WARRANTY THAT THE SERVICE: (A) WILL MEET CARRIER’S REQUIREMENTS OR EXPECTATIONS; (B) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; (C) WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE; OR (D) RESULT IN ANY REVENUE, PROFITS, OR COST REDUCTION. THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. BROKER IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS. CARRIER AGREES THAT THE ENTIRE RISK ARISING OUT OF CARRIER’S USE OF THE SERVICES, AND ANY SERVICE OR GOOD REQUESTED IN CONNECTION THEREWITH, REMAINS SOLELY WITH CARRIER, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW. BROKER’S SERVICES MAY BE USED BY CARRIER TO REQUEST AND SCHEDULE TRANSPORTATION SERVICES WITH OTHER CUSTOMERS, BUT CARRIER AGREES THAT BROKER HAS NO RESPONSIBILITY OR LIABILITY TO CARRIER RELATED TO THE SERVICES OR ANY TRANSPORTATION SERVICES COORDINATED OR OFFERED OR PURCHASED BY CARRIER THROUGH THE SERVICES OTHER THAN AS EXPRESSLY SET FORTH IN THIS AGREEMENT.
25.     CARRIER ASSUMES ALL LIABILITY AND RISK OF USING THE SERVICES AND COORDINATING AND/OR OFFERING TRANSPORTATION SERVICES. BROKER HAS NO OBLIGATION TO MONITOR DISPUTES BETWEEN CARRIER AND OTHER CUSTOMERS. BROKER DISCLAIMS ALL LIABILITY, REGARDLESS OF THE FORM OF ACTION, FOR THE ACTS OR OMISSIONS OF OTHER CUSTUMERS (INCLUDING UNAUTHORIZED USERS). BROKER ONLY OFFERS TECHNOLOGY THAT ENABLES CARRIERS TO COORDINATE TRANSPORTATION SERVICES. BROKER IS NOT A CARRIER. BROKER IS NOT INVOLVED IN THE ACTUAL TRANSPORTATION OF CARGO. AS A RESULT, BROKER HAS NO CONTROL OVER THE QUALITY OR SAFETY OF ANY VEHICLE, CARGO OR OF THE TRANSPORTATION THAT OCCURS AS A RESULT OF THIS SERVICE; NOR DOES BROKER HAVE ANY CONTROL OVER THE TRUTH OR ACCURACY OF CUSTOMER INFORMATION LISTED ON BROKER’S DIGITAL PLATFORM. BROKER RESERVES THE RIGHT TO CHANGE ANY AND ALL CONTENT, SOFTWARE AND OTHER ITEMS USED OR CONTAINED ON ITS DIGITAL PLATFORM AT ANY TIME WITHOUT NOTICE.
26.     THE DIGITAL PLATFORM MAY BE TEMPORARILY UNAVAILABLE FROM TIME TO TIME FOR MAINTENANCE OR OTHER REASONS. BROKER ASSUMES NO RESPONSIBILITY FOR ANY ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMMUNICATIONS LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, OR ALTERATION OF, USER COMMUNICATIONS. BROKER IS NOT RESPONSIBLE FOR ANY TECHNICAL MALFUNCTION OR OTHER PROBLEMS OF ANY TELEPHONE NETWORK OR SERVICE, COMPUTER SYSTEMS, SERVERS OR PROVIDERS, COMPUTER OR MOBILE PHONE EQUIPMENT, SOFTWARE, FAILURE OF EMAIL OR PLAYERS ON ACCOUNT OF TECHNICAL PROBLEMS OR TRAFFIC CONGESTION ON THE INTERNET OR AT ANY SITE OR COMBINATION THEREOF, INCLUDING INJURY OR DAMAGE TO A CUSTOMER’S COMPUTER, MOBILE PHONE, OR OTHER HARDWARE OR SOFTWARE, RELATED TO OR RESULTING FROM USING BROKER’S DIGITAL PLATFORM.
27.     Limitation of Liability.
(a)     BROKER SHALL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOST DATA, PERSONAL INJURY, OR PROPERTY DAMAGE RELATED TO, IN CONNECTION WITH, OR OTHERWISE RESULTING FROM ANY USE OF THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT BROKER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
(b)     BROKER SHALL NOT BE LIABLE AND SHALL HAVE NO RESPONSIBILITY TO MAKE ANY FILINGS WITH ANY GOVERNMENTAL ENTITIES, INCLUDED BUT NOT LIMITED TO ANY AUTOMATED EXPORT SYSTEM FILINGS OR FILING SWITH ANY CUSTOMS SERVICE. BROKER SHALL NOT BE RESPONSIBLE FOR OR HAVE ANY LIABILITY RELATED TO ANY DELAYS CAUSED BY BORDER CROSSINGS.
(c)     BROKER SHALL NOT BE LIABLE FOR ANY DAMAGES, LIABILITY OR LOSSES ARISING OUT OF: (i) CARRIER’S USE OF OR RELIANCE ON THE DIGITAL PLATFORM OR CARRIER’S INABILITY TO ACCESS OR USE THE DIGITAL PLATFORM; OR (ii) ANY TRANSACTION OR RELATIONSHIP BETWEEN CARRIER AND ANY OTHER CUSTOMER OR ANY THIRD PARTY. BROKER SHALL NOT BE LIABLE FOR DELAY OR FAILURE IN PERFORMANCE RESULTING FROM CAUSES BEYOND BROKER’S REASONABLE CONTROL. IN NO EVENT SHALL BROKER’S TOTAL LIABILITY TO CARRIER IN CONNECTION WITH THE SERVICES AND TRANSPORTATION SERVICES FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION EXCEED THE BROKERAGE FEES PAYABLE TO BROKER.