PO BOX 4522
Warren, NJ 07059
T: 732-596-9700
F: 732-596-9701
BROKER AGREEMENT
THIS AGREEMENT is made and entered into on ___________________, 2008, by and
between Pioneer Logistics Solutions LLC with an MC # of 619002 (“BROKER”) and
_____________________________ with offices at _____________________________ and with
an MC # of _____________ (“CARRIER”).
1.
TERM. The term of this Agreement (the “Term”) shall be for one (1) year from
the date of this Agreement and shall automatically renew for a successive one (1) year period;
provided, however, that this Agreement may be terminated by either party at any time by giving
at least thirty (30) days prior written notice.
2.
CARRIER'S OPERATING AUTHORITY AND COMPLIANCE WITH
LAW. CARRIER represents and warrants that it is duly and legally qualified to provide the
transportation services contemplated herein, and CARRIER agrees to comply at all times during
the Term with all federal, state and local laws applicable to the provision of such services.
CARRIER represents, warrants and covenants that it has and will maintain at all times during the
Term all permits and other governmental authorizations applicable to the provisions of such
services.
3.
SPECIFIED SERVICES. CARRIER’s services under this Agreement are
specifically designed to meet the distinct needs of BROKER under the specified rates and
conditions set forth herein.
4.
RECEIPTS AND BILLS OF LADING. Each shipment hereunder shall be
evidenced by a receipt in such form as specified by BROKER or, alternatively, by BROKER’s
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customer signed by CARRIER showing the kind and quantity of product received by CARRIER
at origin. The absence or loss of any such receipt shall not relieve CARRIER of its obligations
and responsibilities with respect to any shipment made hereunder. Such receipt shall be prima
facia evidence of receipt of such shipment in good order and condition unless otherwise noted on
the face of such receipt by CARRIER. Upon delivery of each shipment made hereunder,
CARRIER shall obtain a receipt showing the kind and quantity of product delivered to the
consignee of such shipment at the destination specified by BROKER, and CARRIER shall cause
such receipt to be signed by the consignee. In the event of a conflict or inconsistency between
this Agreement and any attachment hereto or the terms or conditions of any of the bill of lading,
manifest or other form of receipt or contract pertaining to this Agreement or CARRIER’s
services hereunder, the terms of this Agreement shall prevail unless the parties explicitly agree in
writing that the conflicting terms of such other document shall prevail. CARRIER shall notify
BROKER immediately of any exception made on the bill of lading, manifest or other receipt.
5.
CARRIER'S OPERATIONS AND EMPLOYEES. CARRIER shall, at its sole
cost and expense: (a) furnish all equipment necessary or required for the performance of its
obligations hereunder (the "Equipment"); (b) pay all expenses related, in any way, with the use
and operation of the Equipment; (c) maintain the Equipment in good repair, mechanical
condition and appearance; and (d) utilize only competent, able and legally licensed personnel.
CARRIER shall have full control of such personnel and shall perform the services hereunder as
an independent contractor and no other relationship is intended, including a partnership,
franchise, joint venture, agency, employer/employee, fiduciary, master/servant relationship, or
other special relationship. Neither party shall act in a manner which expresses or implies a
relationship other than that of independent contractor.
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6.
INDEMNITY. CARRIER shall defend, indemnify, and hold harmless BROKER
from and against all loss, damage, expense, cost, including reasonable attorney fees, fines,
actions and claims for injury to persons (including death) and for damage to property arising out
of or in connection with CARRIER’s failure to comply with the terms of this Agreement or
CARRIER's loading, handling, transportation, unloading, or delivery of any shipments made
hereunder or performance of any other services or other obligations contemplated herein.
7.
INSURANCE. CARRIER shall procure and maintain, at its sole cost and
expense, liability insurance with a reputable and financially responsible insurance carrier
insuring CARRIER against liability for personal injury (including death) and property damage in
an amount not less than $1,000,000.00 per occurrence, and claims, damage or loss of freight in
an amount not less than $100,000.00 per occurrence, and any additional insurance that may be
required by applicable law. CARRIER will cause BROKER to be named as an additional
insured on such insurance, and shall furnish to BROKER written certificates obtained from the
insurance carrier showing that such insurance has been procured, is being properly maintained,
the expiration date, and specifying that written notice of cancellation or modification of the
policies shall be given to BROKER at least (30) days prior to such cancellation or modification.
Upon request, CARRIER shall provide BROKER with copies of the applicable insurance
policies.
8.
FREIGHT LOSS, DAMAGE OR DELAY. BROKER shall submit to
CARRIER written notice of any cargo claim, including loss or expenses resulting from
CARRIER's delay in providing service, within twelve (12) months of the delivery date of this
shipment, or, if no delivery, the date of the occurrence resulting in the claim. The filing,
processing and disposition of all cargo claims shall be governed by 49 C.F.R. 370 et. seq. The
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parties agree that federal common carrier laws of liability (i.e. Carmack Amendment liability)
shall apply to all shipments being transported by CARRIER under this Agreement. In addition,
however, CARRIER shall be liable to BROKER for all economic loss, including consequential
damages that are incurred by BROKER or BROKER’s customers for any freight loss, damage or
delay claim.
9.
WAIVER OF CARRIER'S LIEN. CARRIER shall not withhold any goods of
BROKER’s customer on account of any dispute as to prices or any alleged failure of BROKER
to pay charges incurred under this Agreement. CARRIER is relying upon the general credit of
BROKER and hereby waives and releases all liens which CARRIER might otherwise have to
any goods of BROKER's customers in the possession or control of CARRIER.
10.
PAYMENTS. CARRIER will charge and BROKER will pay for transportation
services performed under this Agreement at the rates and charges as shown on the Schedule of
Rates attached as Appendix A and any written supplements or revisions thereto signed and
agreed by CARRIER and BROKER. Payment by BROKER will be made within thirty (30) days
of receipt by BROKER of CARRIER's freight bill, bill of lading, clear delivery receipt, and any
other necessary billing documents enabling BROKER to ascertain that service has been provided
at the agreed upon charge. In the event service is provided and it is subsequently discovered that
there was no applicable rate in the existing Schedule of Rates or supplements, the parties agree
that the rate paid by the BROKER and collected by CARRIER shall be such rate as shall be
mutually agreed between the parties in good faith. In no event shall BROKER be liable for any
transportation charges for which BROKER did not have primary responsibility for payment
under the circumstances surrounding the involved shipment. CARRIER agrees that BROKER is
solely liable for all freight charges related to the transportation services provided herein, and, as
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such, CARRIER agrees to refrain from all collection efforts against the shipper, receiver,
consignor, consignee, or BROKER’s customers. BROKER may deduct from any payment any
amount CARRIER is indebted to BROKER, including freight loss, damage and delay claims.
11.
CARRIER WILL NOT SOLICIT BROKER’S CUSTOMERS. Neither
CARRIER nor any of its affiliates will, directly or indirectly, obtain, provide, solicit, induce or
attempt to induce any shipping, carrying, transportation or other business (collectively,
“Business”) from any shipper, consignor, consignee or customer of BROKER (each of the
above, collectively with any and all of its affiliates, a “Customer”) where (a) the availability of
such Business or the identity of such Customer first became known to CARRIER primarily as a
result of BROKER's efforts, (b) the Customer was first introduced to CARRIER by BROKER or
(c) the Business of the Customer was first tendered to CARRIER by BROKER. If CARRIER or
any of its affiliates breaches this Agreement and directly or indirectly obtains Business from a
Customer during the Term or for three (3) years thereafter, CARRIER shall be obligated to pay
BROKER a commission in the amount of twenty percent (20%) of all gross revenues received by
CARRIER or any of its affiliates directly or indirectly resulting from Business provided to such
Customer at any time during the period of three (3) years following the date the first such
Business was obtained. The parties hereto acknowledge and agree that such commission is
intended as a reasonable estimate of the damages that would be sustained by BROKER as a
result of a breach of this Section 11 and not as a penalty. CARRIER shall provide BROKER
with all documentation requested by BROKER to verify such transportation revenue. In
addition, during the period for which such commissions are payable and for a period of twelve
(12) months thereafter, BROKER shall have the right to have its representatives, upon
reasonable prior notice and during normal business hours, examine CARRIER’s relevant records
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in order to verify the accuracy of commissions payable by CARRIER hereunder. BROKER
shall bear the full cost of such audit, unless it discloses an actual underpayment of commissions
for the period examined of more than two percent (2%), in which case CARRIER shall bear the
costs of such examination and shall promptly remit to BROKER the amount of any finally
resolved underpayment of commissions plus a late charge in an amount equal to two percent
(2%) of such underpayment.
12.
EFFECT OF TERMINATION; SURVIVAL. The termination of this
Agreement shall not affect any rights which have accrued prior to termination, including
CARRIER’s obligation to complete any shipments for which orders have been submitted
hereunder and BROKER’s obligation to make payments therefor, and shall be without prejudice
to any other legal or equitable remedies to which the terminating party may be entitled by reason
of such rights. The provisions of Sections 6, 8 (last sentence only), 11, 12, 18, 19 and 20 shall
survive termination of this Agreement for a period of twelve (12) months following the date of
termination.
13.
REPRESENTATIONS OF CARRIER. CARRIER hereby represents and
warrants to BROKER that (a) it has the full right, power and authority to enter into this
Agreement and to perform all of its obligations hereunder, (b) no agreement, court order,
injunction or law prohibits it from entering into this Agreement or from performing any of its
obligations hereunder and (c) it is financially capable of undertaking the business operations
which it conducts and of performing its obligations hereunder.
14.
ENTIRE AGREEMENT; CONFLICTS. This Agreement (together with the
appendixes, exhibits and schedules hereto) contains, and is intended as, a complete statement of
all of the terms and agreements between the parties hereto with respect to the matters provided
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for herein and supersedes any previous agreements and understandings among the parties hereto
with respect to those matters, and supersedes all other agreements and all tariffs, rates,
classifications and schedules published, filed or otherwise maintained by CARRIER.
15.
ASSIGNMENT. BROKER shall have the right to assign, transfer or sub-
contract the whole or part of this Agreement or any rights or obligations assumed hereunder.
Neither this Agreement nor any services or obligations hereunder may be delegated,
subcontracted, assigned or transferred in whole or in part by CARRIER and any attempted
delegation, subcontracting, assignment or transfer shall be void. Any transfer, by operation of
law or otherwise, of (a) CARRIER's interest in this Agreement (in whole or in part), (b) a fifty
(50%) percent or greater interest in CARRIER (whether in one or in a series of transactions), or
(c) any interest in CARRIER directly or indirectly to a competitor of BROKER shall be deemed
an attempted assignment of CARRIER's rights and interest under this Agreement to which the
provisions of this Section 15 shall apply. The issuance of equity securities to other than the
existing equity holders of CARRIER shall be deemed to be a transfer of such equity securities
for the purposes of this paragraph.
16.
BENFIT OF AGREEMENT; AMENDMENTS. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their permitted successors and
assigns. The provisions of this Agreement are for the sole benefit of the parties hereto, and shall
not create or be deemed to create any third party beneficiary rights in any person or entity not a
party to this Agreement. Any amendment or other modification of any provision of this
Agreement will be effective only if in writing and signed by the parties hereto.
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17.
SEVERABILITY. In the event that the operation of any portion of this
Agreement results in a violation of any law, the parties agree that such portion shall be severable
and that the remaining provisions of this Agreement shall continue in full force and effect.
18.
WAIVER: CARRIER and BROKER expressly waive any and all rights and
remedies allowed under 49 U.S.C. 14101 to the extent that such rights and remedies conflict with
this Agreement. Failure of BROKER to insist upon CARRIER’s performance under this
Agreement or to exercise any right or privilege, shall not be a waiver of any of BROKER’s rights
or privileges herein.
19.
GOVERNING LAW; JURISDICTION; ATTORNEY’S FEES. This
Agreement shall be governed by and construed in accordance with the laws of the State of New
Jersey without giving effect to the principles of conflicts of law thereof. The parties hereto each
hereby submits itself for the sole purpose of this Agreement and any controversy arising
hereunder to the exclusive jurisdiction of the state and federal courts in the State of New Jersey,
and waives any objection (on the grounds of lack of jurisdiction or forum non conveniens or
otherwise) to the exercise of such jurisdiction over it by any state or federal court in the State of
New Jersey. In addition to any other relief awarded, the prevailing party in any action arising
out of this Agreement shall be entitled to its reasonable attorneys' fees and costs.
20.
NOTICES. Any notice required or permitted to be given by either party under
this Agreement shall be in writing and shall be personally delivered or sent by a reputable
overnight mail service (e.g., Federal Express), or by first class mail (certified or registered), or by
facsimile confirmed by first class mail (registered or certified), to the other party to the attention
of the representative of such party who signed this Agreement at the address provided in the
signature block below, or to such other representative and/or address as it shall designate by
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written notice given to the other party. Notices will be deemed effective (i) three (3) Days after
deposit, postage prepaid, if mailed, (ii) the next day if sent by overnight mail, or (iii) the same
day if sent by facsimile and confirmed as set forth above.
21.
HEADINGS. The headings of the sections of this Agreement are for
convenience only and in no way limit or affect the terms or conditions of this Agreement.
22.
COUNTERPARTS. This Agreement may be executed via fax and in
counterparts, each of which shall be an original, but which together shall constitute one and the
same Agreement.
23.
RIGHTS CUMULATIVE. Any right, power, or remedy provided under this
Agreement to any party hereto shall be cumulative and in addition to any other right, power or
remedy provided under this Agreement, applicable law or in equity, and may be exercised
singularly or concurrently.
24.
FURTHER ASSURANCES. In the event that at any time any further action is
necessary or desirable to carry out the purposes of this Agreement, each party hereto will take
such further action (including the execution and delivery of such further instruments and
documents) as the other party hereto reasonably may request.
25.
ADVICE OF COUNSEL. Each party hereto acknowledges that, in executing
this Agreement, such party has had the opportunity to seek the advice of independent legal
counsel and has read and understood all of the terms and provisions of this Agreement. This
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Agreement shall not be construed against any party by reason of the drafting or preparation
hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed in their
respective names by their duly authorized representatives as of the date first above written.
“BROKER”
Pioneer Logistics Solutions, LLC
“CARRIER”
____________________________
CARRIER NAME
____________________________________
___________________________________
SIGNED
SIGNED
TITLE:
TITLE:
PRINTED:
PRINTED:
ADDRESS:
PO BOX 4522
Warren, NJ 07059
ADDRESS:
PHONE:
732-388-9300
PHONE:
FAX:
732-388-9301
FAX:
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Appendix A
Schedule of Rates
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