EX-10
5
mcagree.htm
EXHIBIT 10.8
MOTOR CARRIER TRANSPORTATION AGREEMENT
This Motor Carrier Transportation Agreement ("Agreement") is entered into
as of this 28th day of February, 2005 by and between Swift &
Company, Inc., a Delaware Corporation, with principal offices located at 0000
Xxxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000 ("Shipper") and the following named
carrier ("Carrier"):
Name: LOAD SOURCE LOGISTICS
Address: 0000 XXXXX XXXX XXX
000
Xxxx, Xx, Xxx XXXXXXXX, XX 00000
Tel. No.: 0000000000
Fax No.: 0000000000
Contact Person: XXXXXXX XXXXX
Title:
E-mail:
NMFTA SCAC: 1063
R E C I T A L S
A. Shipper, through its operating divisions
and subsidiaries, desires to utilize the services of Carrier to transport
certain of its goods ("Shipments") in accordance with its needs as described in
this Agreement.
B. Carrier is fit, willing, and able to provide
motor carrier transportation as required to fulfill the needs of Shipper
described in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and understandings of
the parties and on the conditions hereunder expressed, the parties hereby
mutually covenant and agree as follows:
TERMS AND CONDITIONS
Term and Termination. This Agreement shall become
effective on the date first written above, shall remain in full effect for one
(1) year from its effective date, and shall be automatically renewed from year
to year thereafter; provided, that either party may terminate this Agreement at
any time upon thirty (30) days' written notice to the other party.
Notwithstanding the foregoing, Shipper may terminate this Agreement immediately
upon written notice to Carrier in any of the following
events:
Carrier loses any authority lawfully
required by any governmental agency (whether foreign, Federal, State or local)
to perform its obligations under this Agreement;Carrier receives written notice
from Shipper of a specific defect in authority necessary to perform Carrier's
obligations under this Agreement;Carrier breaches any covenant, obligations,
condition or requirement imposed upon it by this Agreement, and such breach
continues for a period of five (5) days after written notice thereof to
Carrier;Shipper becomes, for any reason, insecure about Carrier's financial
condition; orCarrier does not maintain any of the insurance coverages or provide
certificates of insurance specified in Appendix E, or any such insurance is
cancelled, materially changed or not renewed for any reason.Carrier fails to
comply in any material respect with applicable federal, state and local laws in
performing its duties under this
Agreement.
Authorizations.
Carrier
represents and warrants to Shipper that it is a motor carrier in interstate,
intrastate, or foreign commerce registered with the U.S. Department of
Transportation ("DOT") pursuant to 49 U.S.C. §13902 in Docket Number MC-
and sub numbers thereunder, is fully authorized to transport Shipper's goods by
motor vehicle between all points covered by this Agreement, and its operations
are in compliance with all aspects of all applicable foreign, Federal, State and
local laws. True, correct and complete copies of the documents evidencing
Carrier's currently effective registration with DOT are attached hereto as
Appendix X.Xx the extent that this Agreement provides for extra-provincial
contract carrier service to, from or through any Canadian Province and/or
Mexican state that requires Carrier to obtain a document evidencing that it is
authorized and qualified to provide such service, true, correct and complete
copies of such documents are attached as Appendix X.Xx the extent that this
Agreement provides for intrastate or intraprovincial contract carrier service in
any State or Province that requires Carrier to obtain a document evidencing that
it is authorized and qualified to provide such service, true, correct and
complete copies of such documents are attached hereto as
Appendix C.
Shipments. In its sole and
absolute discretion, Shipper shall tender Shipments to Carrier as Shipper's
needs require for transportation by Carrier between points within the United
States or within, to or from Canada and Mexico. Notwithstanding anything
contrary in this Agreement, Shipper shall not be required to tender any Shipment
to Carrier. Each Shipment accepted for transportation shall move pursuant to a
Uniform Xxxx of Lading or such other document specified by Shipper or required
by law; provided that, if there shall be a conflict between the terms of any
such Xxxx of Lading or other document and the terms of this Agreement, the terms
of this Agreement shall control. All Shipments shall be subject to stop-off for
loading or unloading and no additional charge shall be assessed by Carrier for a
stop-off privilege except as set forth in this Agreement.
Service To Be
Performed.
During the term of this Agreement,
Carrier agrees to accept and transport pursuant to the terms of this Agreement
all Shipments tendered to it by Shipper. For purposes of this Agreement,
Carrier will deem Shipments to be that of Shipper and subject to the scope of
this Agreement when tendered by or in the name of (i) Shipper, (ii) third
parties for delivery to facilities of Shipper, or (iii) third parties when
Shipments are made from the premises (plant or warehouse) of, or utilized by,
Shipper and freight charges for such Shipments are billed to Shipper. Shipments
transported under the terms of this Agreement may be billed prepaid, collect
(inbound only) or third party wherein the billed party is identified as Shipper,
as specified by Shipper. Wherever used in this Agreement, the term "Shipper"
shall be construed to include all of Shipper's operating divisions and
subsidiaries.All transportation performed within, to or from the United States
by Carrier for Shipper during the term of this Agreement shall be deemed to be
contract carriage performed pursuant to 49 U.S.C. §14101 and Carrier's
contract carrier authority. Shipper and Carrier expressly waive any rights or
remedies under 49 U.S.C. Subtitle IV, Part B to the extent that they are
inconsistent with the provisions of this Agreement. Notwithstanding anything
to the contrary in this Agreement, in no event shall any transportation
performed by Carrier for Shipper pursuant to this Agreement be deemed to be
common carriage.All transportation performed by Carrier for Shipper within, to
or from Canada or Mexico during the term of this Agreement shall be performed
pursuant to the operating authority required to be held by the Carrier under
applicable foreign, Federal, Provincial, State and local law.Carrier agrees,
upon receipt of each Shipment from Shipper or third parties specified in Section
4(a)(ii) and (iii) to give Shipper or such third persons a written receipt for
the Shipment signed by Carrier or Carrier's agent. The receipt shall be prima
facie evidence of the receipt of the Shipment by Carrier in good order and
condition, unless otherwise noted on the face of the receipt. Carrier further
agrees to transport the Shipment without delay and deliver such property in like
good order and condition to the consignee at destination with reasonable
dispatch. Carrier shall obtain signed receipts from consignee or other
appropriate persons designated by Shipper upon delivery. Such receipts shall
show the actual time of delivery of the Shipment. Carrier assumes full
responsibility and is liable to Shipper and/or consignee as their respective
interests may appear for any and all loss of or damage to tendered Shipments
while in Carrier's possession or control or resulting from Carrier's performance
of, or failure to perform, its obligations under this Agreement. If Carrier
believes that it will be unable to complete with reasonable dispatch and without
loss of, or damage to, any Shipment, any service which it has agreed to perform
under the terms of this Agreement, Carrier shall immediately notify Shipper.
Upon such notification Shipper shall have the right to direct Carrier to turn
over the Shipment to a carrier designated by Shipper for completion of
transportation. Delivery of the Shipment to the carrier designated by Shipper
shall relieve Carrier of any further obligations for transportation of the
Shipment and Shipper of any obligation to pay any charges to Carrier with
respect to the Shipment. If Shipper elects to allow Carrier to retain custody
of the Shipment, Carrier shall retain responsibility for delivering the Shipment
to the consignee as soon as reasonably practicable under the circumstances.The
following Appendices and all other Appendices attached hereto and referenced in
this Agreement are hereby incorporated into this Agreement and made a part of
this Agreement for all purposes as if fully set forth in this
Agreement:
Appendix D - Fuel Surcharge
PolicyAppendix E - Liability and Insurance Coverage ProvisionsAppendix F -Claims
Collection and Resolution ProceduresAppendix G - Special RulesAppendix H -
Special ServicesAppendix I - Lane Rate ListAppendix J - Specific Price
ListAppendix K -Mileage Matrix Price List
All defined or capitalized terms used in any Appendix shall have the same
meaning as assigned in this Agreement. To the extent that any provision of any
Appendix modifies or is inconsistent with any provision contained in this
Agreement the provisions in the Appendix shall take precedence.
Freight Rates and
Charges.
Appendix I is the Lane Rate List,
which contains per mile and flat rates for determining point-to-point freight
costs. Appendix K is the Mileage Matrix Price List, which contains a
revenue per mile price guide for determining freight rates from a state or zip
code to destinations designated by zip codes. Appendix J is the Specific
Price List, which contains other freight rates mutually agreed between the
parties to this Agreement. In the event of conflict, freight rates contained in
or calculated by reference to Appendix J shall take precedence over freight
rates contained in or calculated by reference to Appendix I, which shall in
turn shall take precedence over freight rates contained in or calculated by
reference to Appendix K. Shipper and Carrier acknowledge that this
Agreement is a form agreement used by Shipper in contracting for transportation
services from numerous carriers, and Shipper and Carrier may agree not to
include Appendix I or Appendix J in this Agreement. However, the same
order of precedence shall apply to such Appendices as are attached.
Notwithstanding anything to the contrary in this Agreement, Appendix I flat
rates only apply to one origin/one destination Xxxxxxxxx.Xx used in this
Agreement, the term "freight rates" shall refer to line haul transportation
prices determined in accordance with Appendices I, J or K
(as applicable) and the term "freight charges" shall refer to the total amount
to be paid by Shipper to Carrier for the transportation services provided under
this Agreement, including freight rates plus any ancillary or accessorial
charges (such charges as set forth on Appendix J).The mileage used in
determining freight rates under this Agreement, shall be based on the Rand
XxXxxxx Household Goods Mileage Guide #18 (and successive issues thereof) when
the transportation movement is between points listed in the Key Point City
Index, and on the Rand XxXxxxx Milemaker via shortest route of movement in all
other cases.
Amendments To Freight
Charges.
In the event that Shipper or Carrier
desires to amend any of the lists contained in Appendices I, J or K, either by
addition of new origins or destinations or by reductions or increases in prices,
or to amend any ancillary or accessorial charges, Shipper and Carrier shall
negotiate in good faith in accordance with the procedures set forth in this
Section 6. Amendments to freight charges may be negotiated between the Director
of Transportation of Shipper and the following representative(s) of Carrier:
XXXXXXX XXXXX, Title:_____________________ or _____________________,
Title:_____________________. Amendments to freight charges will be effective
from the date mutually agreed to by Shipper and Carrier and shall remain in
effect until such time as the freight charges are renegotiated.Shipper shall,
within seven (7) days of negotiation of an amendment to a freight rate or
charge, send Carrier written notice of such amendment. Such notice shall
indicate in a clear and systematic manner the new rate or charge and effective
date. The amendment shall be effective upon execution by authorized
representative of Shipper and Carrier.
Payment Of
Freight Charges. Carrier will present freight bills for freight charges to the
freight payables address specified on the xxxx of lading or other document
provided by Shipper. Payment by Shipper of all undisputed freight charges shall
be made within fifteen (15) days of receipt of invoices from Carrier. Shipper
shall not be responsible for payment of freight bills tendered to persons other
than those specified by the Shipper. Carrier agrees that upon receipt by it of
payment in accordance with the terms of this Agreement all rights of the Carrier
to any freight charges for transportation of the Shipment shall be automatically
and irrevocably extinguished. Carrier agrees that if any claim is asserted by
it or anyone purporting to act on its behalf or as its successor in interest or
assignee against Shipper for charges in addition to those specified in this
Agreement or against any consignor or consignee of any Shipment for any charges
of any kind, then Carrier or its successor in interest or assignee shall
reimburse Shipper and consignor or consignee for all costs of defending against
any such claim, including reasonable attorneys fees. Carrier agrees that
assignment of any rights under this Agreement or with respect to any claim
relating to transportation of any Shipment will be subject to the provisions of
this Section 7 and that any attempt by Carrier to assign any such right or claim
other than subject to the provisions of this Section 7 will automatically
extinguish any such right or claim. In consideration of Shipper's commitment
to make prompt payment of freight charges, Carrier hereby waives any lien that
it might have on any Shipment. If, notwithstanding this waiver, Carrier or
anyone purporting to act on its behalf or as its successor in interest or
assignee should attempt to assert any such lien, Carrier or such other party
shall reimburse Shipper for its costs, including reasonable attorneys fees,
incurred in obtaining release of the lien. 49 CFR §378, which covers
procedures for overcharges, is hereby incorporated by reference. If any portion
of 49 CFR §378 conflicts with any portion of this Agreement, then the
provisions contained in this Agreement shall take
precedence.
Equipment.
Carrier shall, at
its sole cost and expense, furnish the required number and types of motor
vehicle equipment ("Equipment") required to provide transportation service
requested by Shipper. The Equipment shall be suitable for Shipper's use and in
good operating condition and appearance and in compliance with all applicable
federal, state and local laws and regulations. Carrier shall also provide,
supervise and control all drivers, dispatchers, maintenance and supplies
necessary for the proper operation of the Equipment. Carrier agrees to use
either company-owned equipment or permanently leased equipment to transport the
Shipments. Carrier agrees not to broker Shipments or use trip-lease equipment
with respect to any Shipment without prior approval from Shipper's logistics
department.The Equipment shall be well maintained, clean, empty, water tight,
and insect, rodent and odor free. Carrier agrees that, when transporting
Shipments which contain food products intended for human or animal consumption,
it will not utilize any trailer which has been previously utilized for the
transportation of Hazardous Materials within the meaning of 49 U.S.C. §5102
or Solid Waste within the meaning of 42 U.S.C. §6903 or which otherwise is
not fully suitable for use in the transportation of any Food, Food Additive,
Drug, Cosmetic or Device within the meaning of those terms as used in 21 U.S.C.
§321. Furthermore, the Carrier represents and warrants and will ensure
that all Equipment used in connection with Shipper's Shipments complies with the
Sanitary Food Transportation Act of 1990 and the regulations promulgated
thereunder. Equipment shall be rejected at no cost to Shipper if it does not
pass Shipper's inspection standards or otherwise meet Shipper's requirements.
The acceptance and loading of any Equipment by Shipper shall not constitute a
waiver of any claims by Shipper for (x) damage to any Shipment or (y) any other
breach of this Agreement.
Costs And Expenses Of
Operation. Carrier shall bear all of the costs, expenses, and liabilities of
providing the services and supplies required for the operation, maintenance, and
repair of Equipment, all labor costs and expenses and all costs and expenses for
the procuring and maintaining of all insurance, operating authorities, licenses
and permits as may be required for the performance of transportation service
under the terms of this Agreement.
Routing. Carrier has the right to
select the actual routes it will follow in transporting Shipments but, to the
extent that mileage rates apply to the movement, the computation of such rates
shall be determined by application of the shortest available mileage as
reflected in the most current edition of the Rand XxXxxxx Household Goods
Mileage Guide as provided in Section 5(c).
Load And Count. Shipper
reserves the right to load Carrier's Equipment. If Shipper or any third party
specified in Section 4(a)(ii) or (iii) exercises its option to load Carrier's
Equipment, Carrier shall be responsible for verifying the quantity of the
Shipment loaded. Shipments from Shipper's facilities will be "Shipper Load and
Count". Shipments from Shipper's Cold Storage Facilities will be "Carrier Load
and Count".
Standard of Performance. This Agreement provides for
performance of transportation service that is designed to meet the distinct
needs of Shipper. Carrier agrees to use utmost care and diligence as to the
prompt and safe transportation of all freight entrusted to its care by and for
the account of Shipper. Carrier agrees to deliver all shipments tendered to it
with reasonable dispatch, which shall be the number of days necessary to
transport the shipment from origin to destination in compliance with all
applicable safety regulations giving due consideration to weather and road
conditions.
Indemnification. Carrier shall protect, indemnify, defend and
hold Shipper and its owned, controlled, affiliated, associated, interrelated and
operated companies, the stockholders, directors, officers, agents, employees and
representatives of each such company, and any third party specified in Section
4(a)(ii) or (iii) (each an "Indemnified Party") harmless, from and against any
and all thefts, damages, liabilities, costs, attorneys' fees, or any other fees,
costs and expenses whatsoever sustained by an Indemnified Party under, arising
out of, or in connection with Carrier's performance of its obligations under
this Agreement.
Force Majeure. Except as otherwise provided in this
Agreement, the obligations of the parties in this Agreement shall be temporarily
suspended during any period(s) in which either of the parties is unable to
comply with the requirements of this Agreement by reason of: the acts of God or
the public enemy; fire; flood; labor disorder; civil commotion; government
interference (excluding, however, any failure by Carrier to comply with all
applicable foreign, Federal, State and local laws); inability of Shipper to
purchase, produce or market sufficient goods for transportation by Carrier; or
other contingencies similar or dissimilar to the foregoing beyond the reasonable
control of the affected party.
Compliance With Foreign, Federal, State,
Provincial And Local Laws. All transportation conducted by Carrier hereunder
shall be performed in full compliance with all applicable foreign, Federal,
State, Provincial and local laws, ordinances, regulations, orders and
permits.
Compliance With Safety Practices. When on the premises of
Shipper or of any third party specified in Section 4(a)(ii) and (iii), Carrier,
its employees, subcontractors and agents shall comply with the safety practices
and procedures established for those premises. Any person refusing to comply
with such practices and procedures may be excluded from the premises and the
Carrier shall be responsible for the consequences of such exclusion including,
but not limited to, delays, damage or spoilage of the
Shipment.
Severability. In the event that the operation of any portion of
this Agreement results in a violation of any foreign, Federal, State, Provincial
or local law, the parties agree that such portion shall be severable as to
service performed in the jurisdiction in which the operation would result in a
violation and that the remaining provisions of this Agreement shall continue in
full force and effect.
Independent Contractor Status. It is the intention
of the parties that Carrier shall be an independent contractor with respect to
Shipper, and nothing contained in this Agreement shall be construed as
inconsistent with such status. Carrier shall have the sole and exclusive (i)
control over its employees in performing the transportation service provided for
hereunder and (ii) obligation to ensure that all Equipment complies with
applicable federal, state and local laws, and Carrier shall have the right to
engage and employ such individuals as it may deem necessary in connection
herewith, it being understood and agreed that said individuals shall be
considered employees or agents of Carrier only, and shall be subject to
employment, discharge, discipline and control solely and exclusively by
Carrier.
Taxes And Assessments. Carrier shall have full responsibility
for, and shall pay, all foreign, Federal, State, Provincial and local taxes,
assessments, insurance (including, but not limited to, workers compensation,
unemployment compensation, disability, old age pension and social security
insurance) and other financial obligations arising out of the performance of its
obligations under this Agreement.
Assignment. Carrier may not assign or
transfer this Agreement without the prior written consent of
Shipper.
Controlling Law. Interpretation and enforcement of this
Agreement shall be governed by the laws of the State of
Colorado.
Notices.
Except for routine communications in the course of performance of this
Agreement, which may be transmitted in accordance with any procedures
established by agreement or acquiescence of the parties, all notices under the
terms of this Agreement shall be in writing and delivered by fax, certified mail
or overnight courier. Notices transmitted by fax shall be deemed to be received
as of the date and time of acknowledgment of receipt as reflected in the
sender's fax records maintained in the ordinary course of business. Notices
transmitted by certified mail or overnight courier shall be deemed received as
of the date and time signed for by recipient. Notices shall be addressed as
follows:
If to Shipper:
Director of Transportation
Swift & Company, Inc.
0000 Xxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Fax: 000-000-0000
If to Carrier:
LOAD SOURCE LOGISTICS
0000 XXXXX XXXX XXX 000
XXXXXXXX, XX 00000
9727229998
Non-Waiver. The failure of either party to insist upon the performance
of any of the terms, covenants, or conditions of this Agreement or to exercise
any right or privilege herein, or the waiver by either party of any breach of
any of the terms, covenants, or conditions of this Agreement, shall not be
construed as thereafter waiving any such terms, covenants, conditions, rights or
privileges, but the same shall continue and remain in full force and effect as
if no forbearance or waiver had occurred.
Confidentiality. Each party acknowledges that this
Agreement, including the Appendices hereto, and any and all information
emanating from the other's business is considered to be proprietary and
confidential, and each party agrees it will not, during or after the term of
this Agreement, permit the duplication, use or disclosure of such information
except as may be required by law. Each party shall be responsible for any
unauthorized disclosure made by any of its employees, servants or agents and
shall take reasonable precautions to prevent such disclosures. For the purpose
of this Agreement, the term "proprietary and confidential" does not include any:
(i) information which, at the time of disclosure, is generally known by the
public; (ii) information disclosed to the other party by third parties having
the right to do so and who have not imposed upon the party obligations of
confidentiality in respect thereof; and (iii) information which is known to the
disclosing party prior to the disclosure other than as an incident to the
performance of this Agreement. Carrier shall be prohibited from using Shipper's
name or the names of Shipper's products or the existence of the relationship
Carrier has with Shipper in any of Carrier's publicity or promotional efforts,
without the prior written consent of Shipper.
Mutual Cooperation. It is
understood by both parties that they must cooperate in order to insure the best
and most economical transportation service. The parties therefore agree to
cooperate with each other in all matters relating to the services to be rendered
by Carrier to Shipper hereunder and the costs thereof.
Cumulative
Remedies. The remedies of Shipper herein provided are cumulative and shall not
affect in any manner any other remedies that Shipper may have by reason of the
default or breach by Carrier of its obligations under this
Agreement.
Third Party Beneficiaries. With the exception of the parties
to this Agreement and the Indemnified Parties, and their respective permitted
successors and assigns, there shall exist no right of any person to claim a
beneficial interest in this Agreement or any rights occurring by virtue of this
Agreement.
Entire Agreement; Amendment. This Agreement, together with any
Appendices and Exhibits attached to this Agreement or incorporated by reference
in this Agreement, contains all the terms, agreements, covenants, conditions,
and provisions upon which the parties have agreed and merges and supercedes all
prior agreements, understandings, and representations relating to the subject
matter of this Agreement. This Agreement may not be modified or amended except
by a writing executed by both parties and filed, if required by applicable law,
with the required governmental agency or commission. Amendments to the freight
charges shall be accomplished as provided in Section 6.
[Signature page follows]
IN WITNESS WHEREOF, the parties have set their hands the day and year above
written.
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SHIPPER:
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CARRIER:
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Swift & Company, Inc.
0000 Xxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
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LOAD SOURCE LOGISTICS
0000 XXXXX XXXX XXX 000
XXXXXXXX, XX 00000
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By:
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By:
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Signature
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Signature
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Xxxxxxx Xxxxxxxx
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Print Name
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Print Name
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Director of Transportation
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Title
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Title
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APPENDIX A
INTERSTATE OPERATING AUTHORITY
APPENDIX B
CANADIAN/MEXICAN OPERATING AUTHORITY
APPENDIX C
INTRASTATE OR INTRAPROVINCIAL LICENSES OR PERMITS
APPENDIX D
FUEL SURCHARGE POLICY
The following surcharge policy shall apply to all Shipments that Shipper tenders
Carrier under the terms of this Agreement.
Fuel adjustments will be based on the scale set out below. Adjustments
will be determined each Monday (Tuesday will be used if Monday is a Federal
holiday) (such date the "Determination Date") based on the U.S. Department of
Energy ("DOE") diesel hotline (000) 000-0000, national average fuel index.
Adjustments will be applied to all Shipments beginning the Monday following the
Determination Date. The fuel surcharge will be increased by $0.01 (one cent)
per mile for each increase of $0.05 (five cents) per gallon in the DOE fuel
index on the Determination Date above $1.20 per gallon. The fuel surcharge will
be decreased by $0.01 (one cent) per mile for each decrease of $0.05 (five
cents) per gallon in the DOE fuel index on the Determination Date below $1.099
per gallon.
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Weekly Fuel Price per Gallon (Dollars and Cents)
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Surcharge (Per Mile)
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Continuing at $0.05 decrements
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Continuing at $0.01 decrements
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0.850 to 0.899
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-4 cents
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0.900 to 0.949
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-3 cents
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0.950 to 0.999
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-2 cents
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1.000 to 1.049
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-1 cents
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1.050 to 1.099
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0 cents
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1.100 to 1.149
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0 cents
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1.150 to 1.199
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0 cents
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1.200 to 1.249
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0 cents
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1.250 to 1.299
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+1 cents
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1.300 to 1.349
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+2 cents
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1.350 to 1.399
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+3 cents
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1.400 to 1.449
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+4 cents
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1.450 to 1.499
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+5 cents
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1.500 to 1.549
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+6 cents
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1.550 to 1.599
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+7 cents
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1.600 to 1.649
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+8 cents
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1.650 to 1.699
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+9 cents
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Continuing at $0.05 increments
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Continuing at $0.01 increments
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Fuel surcharges must be shown as a separate line item on Carrier's freight
invoice. It is the Carrier's responsibility to reflect this surcharge on freight
bills. Shipper will not add fuel surcharge to Carrier's freight invoices and
will not be responsible for payment of any fuel surcharge that is not included
in Carrier's freight invoice at the time that it is issued to Shipper.
APPENDIX E
LIABILITY AND INSURANCE COVERAGE PROVISIONS
Carrier hereby assumes the liability of an insurer for the prompt and safe
transportation of all Shipments entrusted to its care and shall be responsible
to Shipper for all loss or damage of whatever kind and nature and however caused
to any Shipment entrusted to or in control of Carrier, or of any other person to
whom Carrier may have entrusted Shipment and before such Shipment is delivered
to the consignee or returned to Shipper. Carrier agrees to procure and maintain
in force continuously throughout the term of Agreement the coverages as
specified in this Agreement. Carrier agrees to name Shipper as additional named
insured under policies one, two and three listed below. Prior to the time that
Shipments are transported by Carrier, Carrier shall furnish to Shipper a
certificate or certificates evidencing the insurance policies and endorsements.
If Carrier cannot provide such certificates to Shipper prior to the time of the
first Shipment, then in lieu of such certificates Carrier's insurance carrier or
authorized insurance agent may provide evidence of such insurance by facsimile
or other form of written communication actually delivered to Shipper prior to
loading of the first Shipment, and Shipper shall be entitled to rely on such
facsimile or other form of written communication. If Shipper accepts such a
facsimile or other written form of evidence, Carrier or its insurance carrier
shall furnish the actual certificate or certificates within five (5) days of the
date of this Agreement. Prior to cancellation or non-renewal of, or material
change in, any policy or endorsements upon renewal or otherwise, Carrier and its
insurance carrier shall furnish Shipper with thirty (30) days' advance written
notice thereof, and Carrier's insurance carrier shall indicate on the
certificate provided to Shipper its promise to comply with this notice
provision. Carrier shall maintain and provide Shipper with evidence of the
following coverages:
COMPREHENSIVE GENERAL LIABILITY INSURANCE
Carrier shall procure and maintain Comprehensive General Liability Insurance, in
accordance with the requirements of 49 U.S.C. § 13906(a)(1), including
blanket contractual coverage, for bodily injury and property damage in the
amount of one million dollars ($1,000,000.00) combined single limit per
occurrence.
AUTOMOBILE BODILY INJURY AND PROPERTY DAMAGE
INSURANCE
Carrier shall procure and maintain Automobile Bodily Injury and Property Damage
Insurance protecting against claims for bodily injury, including accidental
death, and loss of or damage to property in the amount of one million dollars
($1,000,000.00) per occurrence.
ALL-RISK CARGO INSURANCE
Carrier shall procure and maintain All-Risk Cargo Insurance with a per unit
liability limit sufficient to cover Shipments having a minimum value of $100,000
and a maximum value of up to $300,000. In the All-Risk Cargo Insurance shall
include coverage for refrigeration unit breakdown.
WORKER'S COMPENSATION
Carrier shall procure and maintain workers compensation insurance as required by
applicable law or regulation.
If any foreign, Federal, State, Provincial or local government regulatory body
prescribes minimum amounts of insurance in excess of the amounts prescribed
herein, such required insurance minimums will take precedence and shall be
required of Carrier.
Depending on the type of service performed or work being done by the Carrier,
the required limits may vary and other coverage(s) may be required. Any
different or additional coverages will be specified in this Appendix.
All certificates shall be issued (as additional insured) to:
Swift & Company, Inc.
Attn: Logistics Department
0000 Xxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
If Carrier has any questions regarding insurance requirements, it should
contact Swift & Company Logistics Department.
APPENDIX F
SWIFT & COMPANY
CLAIMS COLLECTION AND
RESOLUTION PROCEDURES
Carrier Liability. 49 CFR §370, which sets
forth procedures for loss and damage claims, is hereby incorporated by
reference. If any portion of 49 CFR §370 conflicts with any portion of
this Agreement, then the provision in this Agreement shall take precedence. For
purposes of a loss or damage claim, the value of Shipper's goods shall be the
price at which the goods were sold prior to shipment, or if goods are being
transported for purposes other than to satisfy a purchase contract, the
replacement cost of the lost or damaged goods at the location at which the
Shipment was received by Carrier.
Verification of Discrepancy. Carrier
agrees to verify any discrepancy in the physical count between Shipper's
documents and delivery receipt. Carrier agrees to report the discrepancy as
soon as possible to Shipper's claims department during normal business hours.
Failure of Carrier to report the discrepancy may result in a freight claim being
filed against Carrier.
Claims. A claim for loss, damage or delay to cargo
must be submitted by Shipper, in writing, within nine (9) months of notification
of loss, damage or delay of cargo. Carrier will acknowledge receipt of each
claim, in writing, within thirty (30) days of receipt. Carrier will pay or
decline, in writing, the claim within sixty (60) days of receipt of the claim
from Shipper. If Carrier is unable to make final disposition within sixty (60)
days, Carrier must notify Shipper immediately, in writing, of the reason for the
delay and the status of the claim. Shipper shall have the right to offset
monies owed on a valid claim from Carrier freight charges
if:
Carrier does not pay any valid claim within
one hundred-twenty (120) days from the date it receives the claim from Shipper;
orCarrier files for or is the subject to a petition for bankruptcy.
APPENDIX G
SWIFT & COMPANY SPECIAL RULES
Delay in Transit. The date by which each Shipment
must be delivered will be specified in the xxxx of lading or other shipping
document furnished to Carrier at the time Shipment is tendered. Carrier will
also be required to call the consignee of each Shipment to obtain a delivery
appointment time on the delivery date, if delivery time is not furnished to
Carrier at the time the Shipment is tendered to it. If the Carrier believes
that it will be unable to comply with the specified delivery date and time, it
will so advise Shipper and specify the date and time by which it estimates that
it will be able to deliver the Shipment. Damage to Shipper as a result of
Carrier's failure to deliver a Shipment with reasonable dispatch shall be
determined on the basis of the delivery date and time specified by Shipper
unless Carrier has notified Shipper prior to acceptance of the Shipment that it
cannot make delivery by that date or time, in which case damage for failure to
deliver with reasonable dispatch shall be determined on the basis of the
delivery date and time estimated by the Carrier. If the original requested
delivery date and time on the Shipment changes for any reason, consignee
requested or otherwise, the Carrier must immediately contact Shipper's Customer
Service Representative and notify him/her of the change.
Accidents. In
the event of an accident while a Shipment is in Carrier's possession, Carrier
will notify Shipper immediately by telephone and confirm in writing the known
details of the accident.
Application of Rates. Except as otherwise
provided herein, rates and charges named herein apply on Shipments tendered by
Shipper to Carrier on one day, on one shipping order or document, for delivery
to one consignee at one destination. Where more than one pick-up or delivery is
performed, separate shipping orders or documents may be used for each pick-up or
delivery, on each of which appropriate cross reference must be made to
definitely establish its identity as part of the aggregate weight composing the
prescribed truck load or volume minimum.
Intermediate Rule. From or to
any point not named herein (from or to which Carrier is lawfully permitted or
authorized to operate) which is intermediate to a point from or to which
specific rates are named herein, the rate from or to the next more distant point
named herein will apply.
Minimum Weight. When and where foreign, Federal,
State, Provincial or local laws prescribe maximum gross weights which prevent
Shipper or intermediaries from loading the minimum weight provided in Appendices
I, J or K, such shipment will be transported by Carrier in accordance with rates
applicable to the minimum weight that would be loaded but for the legal
restriction and without penalty to the Shipper.
APPENDIX H
SWIFT & COMPANY SPECIAL SERVICES
Truckload or Volume Rates. Truckload or volume rates
apply on shipments (tendered to Carrier by Shipper on one shipping order or
document) equal to or exceeding the specified minimum weight or on shipments on
which charges are paid on basis of minimum weight.
Mixed Truckloads.
Except as otherwise provided in this Agreement, mixed Shipments will be
transported at the respective truckload or volume rates applicable as contained
in Appendices J, K or L.
Alternative Application of Weight Rates. In no
case shall the charge for any Shipment be greater than the charge for a greater
quantity of a like kind of freight at the rate and weight applicable to such
greater quantity of freight.
Pick-Ups. Minimum truckload or volume
Shipments may be made up of combined Shipments loaded at one or more plants,
warehouses or docks owned or operated by Shipper and at other points designated
by Shipper under conditions specifically provided in this Agreement.
Split
Deliveries. Split deliveries of truckload or volume shipments may be made to
two or more consignees under the conditions provided in this
Agreement.
Stop-Offs. Truckload Shipments may be billed to stop in
transit to complete loading or partially unload at intermediate points from or
to which Carrier is lawfully permitted or authorized to operate under conditions
provided in this Agreement. With respect to Shipments
stopped-in-transit:
All freight charges must be
paid in full at one time by Shipper.Only one xxxx of lading and shipping order
shall be issued for the entire Shipment.The xxxx of lading and shipping order
shall show, in the place provided, the name of the consignee and delivery
address.The names of the places and addresses at which vehicles are to be
stopped for completion of loading or partial unloading may be shown either in
the body of the xxxx of lading and shipping order or on a separate writing which
shall be attached to and considered a part of the shipping documents.The freight
price shall be calculated using the appropriate mileage for the total miles
traveled via the shortest route of movement from origin to final destination
through all stop-off points. The final destination shall govern which mileage
rate or scale to use and the mileage rate or scale used must also correspond to
the initial point of xxxxxx.Xx addition to the basic freight price in
subparagraph (e), Shipper shall pay a stop-off charge of $50.00 for each stop
(excluding pick-up(s) and final
delivery).
Loading and Unloading. If Carrier is
required to perform or pay for loading or unloading, it will be fully reimbursed
by Shipper. Carrier shall not charge lumper fees unless Carrier is prohibited
from unloading by consignee and unless Carrier has obtained prior telephone
authorization from Shipper's logistics department. If proper authorization is
received by Carrier from Shipper, Carrier will be paid for unloading only after
submission of a verifiable receipt from the consignee for services performed.
Shipper will be responsible for loading charges at origin shipping facilities.
Carcass Unloading Charges. Notwithstanding paragraph 7, Shipper shall
reimburse Carrier for carcass unloading charges billed by consignee to Carrier,
provided Carrier submits receipts or other satisfactory evidence of such charges
to Shipper. This provision applies to carcass shipments only.
Documents
Accompanying Shipment. Rates and charges named herein include forwarding, in
the same truck, of shipping documents, invoices, assembly and operating
instructions pertaining to the goods transported.
Protective Service.
Carrier will provide adequate protection for preservation of perishable goods
against heat or cold, and will provide temperature-controlled Equipment capable
of operating at temperatures between thirty-six (36) degrees Fahrenheit and
minus ten (-10) degrees Fahrenheit. Carrier will operate the Equipment at the
temperature instructed in writing by Shipper or third parties specified in
Section 4(a)(ii) or (iii) of the Agreement and the rates and charges named
herein include the cost of providing such equipment and
protection.
Pallets. Unless otherwise provided in Appendices I, J or K,
pallets which are the property of Shipper or any third party specified in
3(a)(ii) or (iii) of the Agreement are used by Carrier to facilitate
transportation, will be considered and treated as part of the Equipment, and the
rates and charges named herein include an equal exchange of like pallets at the
time of each loading and unloading. Pallet rates will be as specified in
Appendices I, J or K.
Goods Descriptions. Goods subject to this Agreement
include, but are not limited to perishable food products, processed meats and
raw meats.
Drop Trailers. Carrier agrees to provide "drop" trailers as
requested by Shipper at designated origins/destinations in order to support
Shipper's business requirements.
Shipment Tracing System. Carrier shall
establish and maintain a driver call-in system and procedure for Shipment
tracing purposes, including actual arrival times. For each Shipment received
for transportation, Carrier shall be able to provide daily transit information
(Shipment location, time of check call and estimated time of
arrival).
Driver Teams. Carrier will provide two-driver teams or relay
teams where the scheduled delivery time would not otherwise allow delivery
within DOT hours of service regulations or for other reasons known to Carrier
such as Carrier caused late pickup.
Meat Hooks. Carrier shall provide the
required number of long and/or short meat hooks necessary for the type of
carcass meat loads tendered by the Shipper. In the event excess hooks are
tendered for the Shipment, such hooks may be removed and will be credited to the
account of Carrier on Shipper's Hook Accounting System and, in the event of
insufficient hooks to handle the Shipment, hooks may be added to the trailer and
such hooks will be debited to Carrier's account on such system. Carrier shall
be liable to Shipper for all net debit balances to Shipper as recorded in such
system.
Reconsignment or Diversion. Shipments may be diverted or
reconsigned subject to the following terms and
conditions:
The term "diversion" or
"reconsignment" means:
A change in the consignee
and/or the destination with respect to a Shipment, orAny other instructions
given by Shipper necessary to effect delivery and requiring an addition or
change in billing or additional movement of the Equipment, or
both.
In the event of reconsignment or diversion
due to Carrier's negligence or other causes attributable to Carrier, Carrier
shall transport the Shipment to the diverted or reconsigned point (including
points short of the original destination). In such case, the freight rate shall
be the price applicable from origin to original destination or from origin to
the diverted or reconsigned point by the shortest direct route, whichever
produces the lowest freight rate.Reconsignment or diversion involving a change
in destination or change in consignee which is requested by Shipper will be
handled in the following manner. The freight rate to apply to a diverted or
reconsigned shipment will be the price found using the revenue per mile rate
from the appropriate Appendix for the total miles traveled via the shortest
route of movement from origin to final destination through all stops,
reconsignment, or diversion points. The final destination shall govern which
State's mileage rate or territorial mileage scale shall apply. In addition,
Shipper shall pay a reconsignment or diversion charge of $50.00. Carrier will
not be paid a diversion or reconsignment charge if delivery is accomplished
within the same city (or its commercial zone) as originally billed. There will
be no diversion charge paid on Mexican and Canadian shipments if stop(s) are
required for broker and/or government inspections. (Additional stop charges
will be paid.) No additional charges relating to reconsignment or diversion
will be paid unless authorized or requested by Shipper's traffic or claims
personnel.If there is a reconsignment or diversion requested by Shipper, Shipper
shall pay demurrage of $15.00 per hour for delaying Equipment at the original
destination longer than the first two hours of free time; provided, however, the
total charge for reconsignment or diversion per twenty-four (24) hour period,
including such demurrage and the reconsignment or diversion charge referred to
in subparagraph (c), shall not exceed $150.00.When it is necessary to return to
the Shipper refused, rejected or undelivered shipments transported under rates
and provisions provided in this Agreement, Carrier will return such Shipments to
a Shipper facility or a cold storage within 75 miles of a Shipper's facility for
$1.10 per mile.When billing for additional charges pertaining to reconsignment,
diversion, or demurrage, Carrier must show on its freight xxxx the approval
number issued by Shipper representative who authorized the additional
charges.Carrier must comply with all security agreements including but not
limited to Continuous Seal Policy, and all safety requirements in place at
Shipper's facilities. Carriers must maintain a complete and continuous seal
record on "Shipper load and count" movements that show notations of seals
intact, the actual seal numbers, and the reseal numbers on multiple stop
Shipments. This record should be signed and dated by receiver(s). It is the
Carrier's responsibility to provide seals for multiple stop Shipments. Carrier
must immediately notify Shipper's logistics department or claims department if a
customer refuses to comply with this procedure. Failure to follow these
procedures will result in a freight claim filed against the Carrier in the event
of product shortages.
Extraordinary Costs.
Carrier agrees that any additional costs caused by Shipper, or extraordinary
occurrences that are not specifically addressed in this Agreement and which are
beyond the control of Carrier, shall be negotiated with the Director of
Transportation of Shipper's logistics department on a case-by-case basis and
both parties will make every reasonable effort to achieve a fair and equitable
resolution.
Load Tender Response
. Shipper and Carrier acknowledge and agree that if Shipper tenders a request
to Carrier to provide services pursuant to this Agreement for a Shipment,
Carrier shall have three (3) hours from the receipt of such request to accept
such request by oral or written confirmation to the Shipper's freight planner.
If such request is not validly accepted within three (3) hours from the receipt
of such request, Shipper and Carrier agree that Shipper shall have no obligation
(including, without limitation, obligations to tender the Shipment or pay
freight changes or costs relating to the Shipment) to Carrier under this
Agreement with respect to such Shipment and may tender a request to another
carrier with respect to such Shipment.
Obligations
. If requested by Shipper, Carrier will transmit to Shipper via electronic data
exchange, world wide web, computer image format (i.e., .pdf file or .tif file)
or other reasonable means the following, but not limited to: appointments,
delivery dates, order information, claim data or proof of delivery information.
Such information shall be provided to Shipper at no additional charge.
