TRANSPORTATION AGREEMENT
Exhibit
10.3
This
Agreement for transportation of Goods (the “Agreement”) is made and entered into
effective the 28th
day of
Dec., 2005, (the “Effective Date”),
by and
between PILGRIM’S PRIDE CORPORATION, a Delaware corporation (“Shipper”), and XXX
XXXXXXX d/b/a XXX
XXXXXXX FARMS, (“Carrier”).
R
E C I T A L S:
WHEREAS,
Carrier is an independent contractor engaged in the business of transporting
freight in intrastate and interstate commerce and desires to provide motor
contract carrier services to Shipper for the transportation of chickens and
other goods, which are considered general commodities (“cargo” or “Commodities”)
under Federal Highway Administration Permit No. _______________ issued to
Carrier by the Federal Highway Administration Division of the Department
of
Transportation a copy of which is attached hereto as Exhibit “1” and made a part
hereof, and
WHEREAS,
Shipper desires Carrier from time to time to provide motor contract carrier
services of transportation, as set forth in Exhibit A attached hereto and
incorporated by reference herein, to Shipper’s customers of certain Commodities
sold by Shipper.
NOW,
THEREFORE, in consideration of the mutual covenants and conditions hereinafter
set forth, and other good and valuable consideration, the receipt and
sufficiency of which the parties hereby acknowledge; Carrier and Shipper
agree
as follows:
ARTICLE
1
Section
1.1 Subject
to the terms and provisions hereof, Shipper agrees to tender to Carrier an
indeterminable number of Shipments (hereinafter defined) during the term
of this
Agreement, but not less than three (3) per year, and Carrier agrees to provide
Suitable Equipment (hereinafter defined) to transport said Shipments, provided
the booking procedures set forth in Section 1.4 herein are followed and Carrier
agrees to transport such shipments in accordance with the terms and conditions
stated herein.
Section
1.2 A
Shipment shall consist of a full trailer load of Commodities. Suitable Equipment
means (i) a refrigerated trailer that is at least 48 feet long and 102 inches
wide, that will haul a minimum of 45000 pounds gross weight of product, with
each said trailer being clean, insect and rodent free, odor free, water tight
and uncontaminated by prior use, not ever having been used for transportation
or
storage of toxic chemicals of any kind, including, without limitation,
insecticides, rodenticides, and/or hazardous materials, substances or chemicals,
unless otherwise agreed upon in writing by waiver of specified materials
executed by Shipper’s Sr. Vice President of Quality Control and Vice President
of Risk Management, at Shipper’s sole discretion, prior to Shipment; and (ii) a
tractor power unit with sufficient power for towing the trailer, in good
operating condition and repair, and with a driver experienced in handling
the
transportation of Commodities with such a rig and trailer and with a good
driving record.
Section
1.3 Carrier
shall furnish to Shipper a copy of the United States Department of
Transportation General Motor Carrier Safety Administration Form MCS-150,
Form
MCS-90, and Form BMC-91X filed by Carrier as well as subsequent updates for
the
duration of the business relationship.
Section
1.4 When
Shipper desires Carrier to transport a Shipment, Shipper will notify Carrier
by
e-mail, Electronic Data Interchange (EDI), verbally and/or by facsimile,
specifying the load, the destination, and the date by which the load must
reach
the destination. Carrier will either accept or reject the opportunity to
transport the Shipment by return e-mail, EDI, and/or facsimile to the Shipper
in
Section 13.4. If Carrier accepts, Carrier will be bound by the terms of this
Agreement with respect to each such Shipment. If Carrier rejects, the rejected
load will be considered as an allocated load to the Carrier in accordance
with
Shipper obligations to award Carrier primary coverage of said lane.
1
Section
1.5 Time
is
of the essence in Carrier’s performance of its obligations hereunder, and
Carrier agrees to provide timely communication relative to load tenders and
to
transport all Shipments with prompt and reasonable dispatch in accordance
with
scheduled delivery dates set by Shipper and its customers, as communicated
to
Carrier as set forth in Section 1.4 herein, subject, however, to compliance
by
Carrier with applicable laws and regulations and to conditions beyond Carrier’s
control.
ARTICLE
2
Compensation
Section
2.1 Carrier
shall be compensated for each Shipment in accordance with the rates set forth
on
XXXXXxxxxxxxx.xxx, a web-based rate management system, or based on the delivery
destination of the cargo, the total number of tons of cargo hauled by Carrier
and the agreed upon rate as contained in the applicable purchase order. The
fees
paid to Carrier shall be no more favorable than the fees paid by Shipper
to any
other third party carrier. User name and password will be issued by Ilens
Logistics Group at the request of Pilgrim’s Pride. Carrier agrees that “P. C.
Miler v.14” shortest miles option shall be utilized as the basis for computing
the mileage from the point of origination of a shipment to the point of
destination of a Shipment. Any deviation from this aforementioned method
must be
approved in advance in writing by Shipper.
Section
2.2 Carrier
represents and warrants that, during the term of this Agreement, the rates
agreed upon hereunder as may be modified in accordance with the terms hereof
from time to time, together with all charges, surcharges, rebates, discounts,
incentives and allowances agreed upon by the parties (collectively, “Pricing
Terms”), offered to Pilgrim’s Pride under this Agreement, are and will remain as
favorable as, or better than the Pricing Terms offered by Carrier to any
other
shipper shipping similar products in like quantities. In the event that Carrier
at any time agrees, in writing or otherwise, to Pricing Terms with another
shipper that are in any way more favorable than the Pricing Terms agreed
to with
Pilgrim’s Pride, Carrier shall promptly notify Pilgrim’s Pride in writing and
offer such terms to Pilgrim’s Pride. In the event Pilgrim’s Pride accepts such
modified terms, the parties shall promptly prepare and execute an amendment
to
this Agreement reflecting such revised terms. Carrier (or its applicable
subsidiary) shall annually on the anniversary of this Agreement, certify
to
Pilgrim’s Pride that Carrier remains in compliance with this
provision.
Section
2.3 At
the
time the Shipment is fully delivered, an invoice covering that Shipment will
be
generated by Carrier and delivered to Shipper, in accordance with the rates
Carrier places in IBID, or based on the delivery destination of the cargo,
the
total number of tons of cargo hauled by Carrier and the agreed upon rate
as
contained in the applicable purchase order. The invoice will be due and payable
thirty (30) days
from
the date of receipt of the invoice, provided that on or before said date
Shipper
has received from Carrier (i) duly executed receipt(s) from whom delivery
was
made concerning the applicable invoice, and (ii) such other supporting materials
as Shipper may reasonably require.
Section
2.4 Carrier
shall maintain complete and accurate records of each Shipment and all
transactions under this Agreement, including all supporting documentation
and
proof of delivery, and in a manner consistent with generally acceptable
accounting procedures. Within two (2) days notice by Shipper, Carrier shall
provide Shipper and/or its representatives with access to and the right to
examine all records involving any transaction related to the Agreement. Such
right shall be for the period covered by this Agreement and until the expiration
of five (5) years after termination of this Agreement.
ARTICLE
3
Payment
of Rates and Charges
Section
3.1 Within
thirty (30) days after Shipper’s receipt of Carrier’s delivery receipt, Shipper
shall pay Carrier the rates and charges applicable to the shipment of cargo.
In
exchange for Shipper’s guarantee of prompt payment, (i) agrees not to contact
Shipper’s customers, consignors, consignees or any party other than Shipper
concerning payment for transportation services; and, (ii) agrees to indemnify,
defend, and hold Shipper, its customers, consignors, and consignees harmless
from any claim or demand made by any subcontractor of Carrier or other party
for
payment for transportation services related to a shipment of cargo tendered
under this Agreement.
2
Section
3.2 Any
claim
for overpayment or underpayment for transportation services provided pursuant
to
this Agreement shall be presented by the party asserting the claim to the
other
party within sixty (60) days of discovery of the claim, but in no event will
any
such claim(s) be asserted more than one hundred eighty (180) days after the
delivery of the shipment or shipments giving rise to any such claim. Claims
shall be supported by appropriate documentation showing the amount of the
overcharge or the undercharge, as the case may be. The Parties shall pay,
deny,
or make a firm compromise offer within forty-five (45) days of receiving
a
claim.
Section
3.3 Carrier
will pay all licenses, fees, taxes, fuel tax payments, road tax, equipment
use
fees or taxes, equipment license fees, driver’s license fees, tolls and any
other fees and fines that may be assessed on its equipment or its
operations.
ARTICLE
4
Term
Section
4.1 This
Agreement shall be continuously in effect beginning as of the Effective Date,
unless terminated as herein provided.
Section
4.2 Either
party may terminate this Agreement for any reason by giving the other party
at
least thirty (30) days
prior written notice.
ARTICLE
5
Acceptance
of Commodities, Risk of Loss and Claims
Section
5.1 Carrier,
by accepting Shipper’s Commodities for transportation, whether or not by signing
an original Xxxx of Lading or accepting an electronic shipping document in
lieu
of an original Xxxx of Lading, acknowledges that the Commodities are in good
condition except for any exceptions written on these documents. All shipments
shall be transported under the xxxx of lading utilized by Shipper or such
other
documents that Shipper and Carrier may mutually agree in writing to use.
To the
extent the terms and conditions of any xxxx of lading, purchase order, invoice
or other document or instrument conflict with any provision of this Agreement,
the terms of this Agreement will control.
Section
5.2 Handling
procedures for claims
for loss, damage and delays (but specifically not salvage rights as set forth
in
Section 5.3 below and claims handling resolution) will be in accordance with
49
C.F.R. 370. The form for loss/damage claims to be utilized by the parties
shall
be the form attached hereto as Exhibit “2.” For claims purposes hereunder, the
full amount of each invoice generated by Shipper to whom the Commodities
constituting the cargo are being sold, shall be the agreed value of the
applicable cargo.
Section
5.3 Except
with the express written consent of Shipper, Carrier shall not under any
circumstances whatsoever cause, suffer or permit either (i) the sale or disposal
of any Commodities constituting the cargo or (ii) any offer to sell or dispose
of any such Commodities, whether as salvage or otherwise. In the event of
an
accident involving any Commodities being transported by Carrier for Shipper,
the
decision regarding the disposition of such Commodities shall be within the
sole
and absolute discretion and right of Shipper. If the product is determined
to be
salvageable by the Shipper, any salvage or rendering value, less associated
costs, shall be credited to Carrier’s account to offset such loss liabilities.
Title to such Commodities and the right to determine disposition of same
remains
with Shipper during transport and shall pass to Customer upon delivery and
acceptance of such Commodities by Customer without any noted discrepancy.
However, Carrier shall remain liable to Shipper as if Carrier was a common
carrier at common law for the full actual loss, damage or injury to Commodities
occurring while in the custody, possession or control of Carrier hereunder
or
resulting from Carrier’s performance or failure to perform the services provided
for in this Agreement, except to the extent such performance is excused under
Section 13.10 hereof.
Section
5.4 With
regard to Carrier’s liability to Shipper for loss, damage or injury to
Commodities, Carrier shall indemnify and hold harmless Shipper and all of
its
directors, officers, employees and agents (the “Indemnitees”) from and against
any claims, losses, damages, judgments, awards, penalties or other costs
or
expenses (including, but not limited to, any reasonable attorneys’ fees), and
defend, at Carrier’s cost, each Indemnitee against any threatened, pending or
initiated claim, action, litigation, suit, arbitration, mediation or proceeding,
arising out of or connected with any cargo claims. Any such cargo claim
includes, but is not limited to, prepaid shipping costs, storage,
rework/transportation charges as well as the full invoice value of the loss
of,
damage to, or destruction of Commodities, either partial or total, which
occurred while such Commodities were in the custody, possession or control
of
Carrier or parties under its control including, but not limited to, employees,
agents or other representatives of Carrier.
3
ARTICLE
6
Insurance
Section
6.1 Carrier
shall have obtained as of the Effective Date and shall maintain throughout
the
term of this Agreement, insurance according to Shipper’s vendor insurance
requirements policy which has been incorporated by reference and herein attached
as Exhibit “3.”
Section
6.2 Carrier
shall deliver to Shipper, as of the Effective Date and whenever thereafter
reasonably requested by Shipper, certificates of insurance from each applicable
insurer reflecting the effectiveness of the insurance coverages required
in
Section 6.1 herein, providing for at least thirty (30) days
advance written notice to Shipper of the insurer’s intention to cancel or
materially change any of the insurance policies.
Section
6.3 In
lieu
of providing the insurance coverages described above and with the express
approval of Shipper’s Risk Management Department, Carrier may furnish evidence
of its authorization to self-insure.
ARTICLE
7
Indemnification
Section
7.1 CARRIER
SHALL DEFEND, INDEMNIFY, AND SAVE SHIPPER, ITS’ AFFILIATED ENTITIES, AND THE
DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS OF SHIPPER HARMLESS FROM AND AGAINST
ANY AND ALL LOSSES, COSTS, EXPENSES, CLAIMS, DEMANDS, LIABILITIES, SUITS
OR
ACTIONS (INCLUDING ALL REASONABLE EXPENSES AND ATTORNEY’S FEES) ARISING OUT OF
INJURIES TO OR THE DEATH OF ANY PERSON OR PERSONS, INCLUDING THE EMPLOYEES
OF
EACH PARTY HERETO, OR ARISING OUT OF LOSS OF OR DAMAGE TO THE PROPERTY OF
ANY
PERSON OR PERSONS, INCLUDING THE PROPERTY OF SHIPPER (EXCLUDING LOSS AND
DAMAGE
TO CARGO WHICH IS COVERED ELSEWHERE IN THIS AGREEMENT) TO THE EXTENT CAUSED
BY
OR RESULTING FROM THE NEGLIGENCE OF CARRIER OR ANY OF ITS AGENTS,
SUBCONTRACTORS, EMPLOYEES OR PARTIES UNDER ITS CONTROL AND ARISING OUT OF
OR
RELATED TO CARRIER’S PERFORMANCE UNDER THIS AGREEMENT. CARRIER ASSUMES NO
LIABILITY UNDER THIS PARAGRAPH FOR ANY OCCURRENCE THAT IS THE RESULT OF THE
SOLE
NEGLIGENT ACTS OR OMISSIONS OF SHIPPER.
ARTICLE
8
Representations
and Warranties of Carrier
Section
8.1 Carrier
hereby represents and warrants to Shipper, that as of the Effective Date
and as
of the date of each Shipment:
(a) Their
Federal Highway Administration permit is valid and is in full force and effect,
not having been rescinded or affected in any way and Carrier has obtained
and
maintained all other licenses, permits and authorizations and approvals of
whatever kind and nature applicable to Carrier and for the transportation
services provided hereunder.
4
(b) All
applicable federal, state and local laws and regulations or orders have been
and
will be strictly complied with, including, without limitation, (i) no
commingling of Commodities with any hazardous substances or poisons as defined
by the U. S. Department of Transportation, Environmental Protection Agency,
Federal Drug Administration, or any other federal, state, or local governmental
agency or municipality, and (ii) compliance with the requirements of the
Sanitary Food Transportation Act of 1990, as may be amended from time to
time,
and any regulations derived therefrom, including, without limitation, shipping
Commodities only with food and acceptable non- food products as defined in
the
Sanitary Food Transportation Act of 1990.
(c) Carrier
(and if different from Carrier, any driver of a Shipment) has not been and
is
not now under any indictment, or a defendant in any lawsuit, or the subject
of
any administrative or other proceeding instituted by any federal, state or
local
governmental agency or entity, and to the best of its (their) knowledge there
are no such proceedings threatened.
(d) If
Carrier is a corporation, general partnership, limited partnership, joint
venture, trust, or other type of business association, as the case may be,
Carrier (i) if either a corporation duly incorporated or a partnership or
trust,
joint venture or other type of business association duly organized, is validly
existing, and in good standing under the laws of the state of its formation
or
existence, and has complied with all conditions prerequisite to its doing
business in Texas and any other state where Carrier conducts business, and
(ii)
has all requisite power and all governmental certificates of authority,
licenses, permits, qualifications and documentation to operate its trucks
or
trailers and to carry on its business as now being, and as proposed to be,
conducted.
(e) The
execution, delivery, and performance by Carrier of this Agreement (i) is
within
Carrier’s powers and have been duly authorized by Carrier, (ii) will not
violate, be in conflict with, result in a breach of, or constitute (with
due
notice or lapse of time, or both) a default under a violation of any agreement
of Carrier, and (iii) this Agreement constitutes the legal, valid, and binding
obligations of Carrier, enforceable in accordance with its respective
terms.
(f) All
information, financial statements, insurance certificates, and any other
data
and instruments given or to be given to Shipper are, or at the time of delivery
will be, accurate, complete, and correct in all material respects and do
not, or
will not, omit any fact, the inclusion of which is necessary to prevent the
facts contained therein from being materially misleading.
(g) All
federal, state, county, municipal, and City income and other tax returns
required to have been filed by Carrier have been timely filed and all taxes
and
related liabilities which have become due pursuant to such returns or pursuant
to any assessments received by Carrier have been paid in full.
(h) Carrier
has received and continuously maintained a “satisfactory” safety rating as
issued by the U. S. Department of Transportation.
(i) The
insurance coverages required by Section 6.1 herein are in full force and
effect
and will not lapse or be terminated at any time during the term of this
Agreement.
ARTICLE
9
Carrier’s
Operating Authority and Safety Rating
Section
9.1 Carrier
represents and warrants that all transportation performed under this Agreement
shall be contract carriage. To the extent that Carrier performs services
pursuant to this Agreement within, or to or from Canada, it shall procure
and
maintain any and all operating authorities or permits required to be held
by
Carrier under any applicable Federal, Provincial or Territorial laws and
shall
adhere to the Canadian National Safety Code. Without cost to Shipper, Carrier
shall provide and complete all preventive maintenance and ongoing maintenance
including, but not limited to, periodic safety inspections, annual safety
inspections and emissions testing pursuant to the standards set out in any
and
all of the applicable motor vehicle statutes and regulations of the applicable
jurisdiction(s) of operation. Carrier warrants that it shall notify Shipper
in
the event of any suspension, cancellation, termination, or withdrawal of
its
operating authorities, in which event,
Shipper
shall have the right to terminate this Agreement immediately upon written
notice
to Carrier.
Section
9.2 Carrier
further represents and warrants that it shall at all times maintain a U.S.
DOT
safety rating that is “satisfactory”, “conditional”, (subject to Shipper’s
policies as amended from time to time), or “unrated”; and if to the extent that
Carrier performs services pursuant to this Agreement within, or to or from
Canada, comparably, Carrier shall maintain a Canadian “carrier safety rating”
that is “satisfactory”, “conditional” or “satisfactory-unaudited” in accordance
with the Ontario Ministry of Transportation standards pursuant to the Highway
Traffic Act and Regulations and/or any other Provincial or Territorial
equivalent, which has jurisdiction over the Carrier’s operations. Carrier
warrants that it will promptly notify Shipper if Carrier is assessed an
“unsatisfactory” safety rating, or if any equipment is known to be or reported
as defective or which is not in compliance with the applicable Federal, State,
Provincial or Territorial statute or regulation pertaining to vehicle or
highway
safety and Shipper will suspend all service with Carrier and this Agreement
shall be terminated.
5
Section
9.3 To
the
extent that Carrier performs services pursuant to this Agreement within,
or to
or from Canada, Carrier warrants that it holds a valid registration with
the
Commercial Vehicle Operator’s Registration (CVOR) System for transporting goods
through Canada. Carrier shall notify Shipper immediately of any conviction
or
sanction against its CVOR rating.
Section
9.4 To
the
extent that Carrier performs services pursuant to this Agreement within,
or to
or from Canada, Carrier holds a valid license or certificate to operate an
Extra-Provincial truck undertaking, and to engage in the Intra-Provincial
truck
transportation of goods or valid overweight permits pursuant to any applicable
laws if necessary or as issued under the Motor Vehicle Transport Act, 1987
or
any Highway Traffic Act or equivalent as applicable to the jurisdiction of
the
trip/route.
Section
9.5 To
the
extent that Carrier performs services pursuant to this Agreement within,
or to
or from Canada, Carrier is authorized to transact bonded highway carrier
operations in Canada, and warrants that it holds the applicable bonded highway
carrier code as issued by the Canada Border Services Agency
(“CBSA”).
Section
9.6 To
the
extent that Carrier performs services pursuant to this Agreement within,
or to
or from Canada, Carrier has signed Partners in Protection memorandum of
understanding with the CBSA and has been certified and/or validated by the
United States Bureau of Customs and Border Protection (“CBP”) as a participant
in the Customs-Trade Partnership Against Terrorism.
Section
9.7 To
the
extent that Carrier performs services pursuant to this Agreement within,
or to
or from Canada, Carrier warrant that it is an approved carrier under the
CBSA’s
Customs Self-Assessment program, and is a registered participant in the Free
and
Secure Trade (“FAST”) program and that it holds a Standard Alpha Code number as
issued by the National Motor Freight Association (“NMFTA”).
ARTICLE
10
Drivers
and Equipment
Section
10.1 Carrier
shall ensure that he/she and his/her/its drivers are properly trained and
licensed, and are competent and capable of safely handling and transporting
Shipper’s shipments of cargo. Carrier agrees that drivers will be dispatched in
accordance with the maximum available hours of service as provided in rules
promulgated by the FMCSA while in the United States or as provided by any
Canadian authority whose jurisdiction is within Carrier’s route/trip.
Section
10.2 Carrier
shall provide and maintain all equipment required for the services requested
by
Shipper and shall only
use and
provide equipment that is clean, in good operating condition and repair,
in
compliance with any and all Federal and/or State, Provincial/Territorial,
Municipal statutes and regulations, and is suitable and properly configured
to
safely load, transport, and unload the shipments of cargo tendered by Shipper.
Carrier shall ensure that all equipment and all loads are in compliance with
the
environmental standards of any and all jurisdictions on its route and must
act
in accordance with these environmental standards.’ All equipment provided for
the transportation of food or food grade products will comply with the
requirements of The Sanitary Food Transportation Act, or, to the extent that
Carrier performs services pursuant to this Agreement within, or to or from
Canada, the Food and Drug Acts and any/all other applicable statutes and
regulations, including, but not limited to the Ontario Food Safety and Quality
Act, 2001, or any other jurisdiction’s equivalent.
Section
10.3 Drop
Trailer/Interchange. In the event that Carrier participates in a drop trailer
arrangement for the benefit of any of Shipper’s customers or Shipper, Carrier
agrees that it shall address all damage or liability issues directly with
the
responsible customer or Shipper. Carrier agrees that Shipper shall only be
responsible for the direct acts of its employees, and not for the actions
of
customers, lumpers, draymen, other carriers, or any other third party (“Third
Parties”), unless Shipper proximately caused or contributed to the actions of
any of the Third Parties. If Carrier agrees to interchange equipment to another
carrier or to use equipment owned by a third party, Carrier, will address
any
interchange agreement directly with that motor carrier or equipment
owner.
6
ARTICLE
11
Independent
Contractor
Section
11.1 Carrier
shall be an independent contractor with respect to all work performed under
this
Agreement. Neither Carrier nor anyone used or employed by Carrier shall
be
deemed for any purpose to be the employee, agent, servant, or representative
of
Shipper in the performance of such work, or in any matters arising out
of
Carrier’s obligations under this Agreement. Shipper shall have no right of
supervision, direction or control over Carrier, its employees, or agents.
As an
independent contractor, Carrier assumes full responsibility for the payment
of
federal, state and local taxes or contributions or taxes for unemployment
insurance, pensions, worker’s compensation, and related matters with respect to
Carrier’s employees engaged in the performance of its services.
ARTICLE
12
Dispute
Resolution
Section
12.1
If a
dispute arises from or relates to transactions between the Parties, the
Parties
shall endeavor to settle the dispute first through direct discussions and
negotiations. If the dispute cannot be settled through direct discussions,
the
Parties shall endeavor to settle the dispute by mediation under the Mediation
Rules of the American Arbitration Association before recourse to the arbitration
procedures contained in this Agreement. If a dispute has not been resolved
within 90 days after the written notice beginning the mediation process
(or a
longer period, if the Parties agree to extend the mediation), the mediation
shall terminate and the dispute shall be settled by binding arbitration
in
Dallas, Texas or such other location as agreed upon by the Parties. The
arbitration will be conducted in accordance with the procedures in this
document
and the Rules of the American Arbitration Association in effect on the
date of
the engagement letter, or such other rules and procedures as the Parties
may
designate by mutual agreement. In the event of a conflict, the provisions
of this document will control.
Section
12.2 The
arbitration shall be conducted by a single arbitrator as agreed upon by
the
Parties. If the Parties cannot agree on a single arbitrator, the arbitration
will be conducted before a panel of three arbitrators, one selected by
each
Party and the third arbitrator selected by the Parties’ two arbitrators from a
panel provided by the American Arbitration Association. Any issue
concerning the extent to which any dispute is subject to arbitration, or
concerning the applicability, interpretation, or enforceability of these
procedures, including any contention that all or part of these procedures
are
invalid or unenforceable, shall be governed by the agreement between the
Parties
and the Federal Arbitration Act and resolved by the arbitrators. No
potential arbitrator shall be appointed unless he or she has agreed in
writing
to abide and be bound by these procedures.
Section
12.3 The
individual arbitrator or the arbitration panel shall have no power to award
non-monetary or equitable relief of any sort. The arbitrator/panel shall
also have no power to award (a) damages inconsistent with any applicable
agreement between the Parties or (b) punitive damages or any other damages
not
measured by the prevailing Party’s actual damages; and the Parties expressly
waive their right to obtain such damages in arbitration or in any other
forum. In no event, even if any other portion of these provisions is held
to be invalid or unenforceable, shall the arbitrator/panel have power to
make an
award or impose a remedy that could not be made or imposed by a court deciding
the matter in the same jurisdiction.
Section
12.4 Discovery
shall be permitted in connection with the arbitration only to the extent,
if
any, expressly authorized by the arbitration panel upon a showing of substantial
need by the Party seeking discovery.
Section
12.5 All
aspects of the arbitration shall be treated as confidential. The Parties
and the arbitrator/panel may disclose the existence, content or results
of the
arbitration only as provided in the Rules or by the Parties. Before making
any such disclosure, a Party shall give written notice to all other Parties
and
shall afford such Parties a reasonable opportunity to protect their
interests.
Section
12.6 The
result of the arbitration will be binding on the Parties, and judgment
on the
arbitration award may be entered in any court having jurisdiction. The
prevailing Party in any dispute that is resolved by this dispute resolution
process shall be entitled to recover from the other Party reasonable attorneys’
fees, costs and expenses incurred by the prevailing Party in connection
with
such dispute resolution process.
7
ARTICLE
13
Miscellaneous
Section
13.1 All
information and materials with respect to Shipper’s costs, procedures and other
details of Shipper’s business obtained by Carrier in connection with the
performance of services hereunder is confidential and shall not, without
Shipper’s prior written consent, be disclosed by Carrier, its employees, or
agents to any third person.
Section
13.2 More
than
one copy of this Agreement may be executed by the parties hereto. Each
such
executed copy shall have the full force and effect of an original executed
instrument.
Section
13.3 AUDIT:
The Carrier shall keep accurate books of account and records covering all
transactions involving the transportation services provided under this
Agreement. Shipper, or its authorized representative, shall have the right,
during normal business hours, to examine such books and records to the
extent
necessary to determine compliance with the supply of the transportation
services. All such books and records shall be kept available during the
term of
business relationship and for at least three (3) years after their
creation.
Section
13.4 Any
notice or communication required or permitted hereunder shall be given
in
writing, sent by (a) expedited delivery service with proof of delivery
or (b)
United States Mail, postage prepaid, registered or certified mail, addressed
as
follows:
If
to
Shipper: Pilgrim’s
Pride Corporation
0000
Xxx.
000 X
Xxxxxxxxx,
XX 00000
Attention:
Xxxxx Xxxxx Xxxxx
Telephone:
000-000-0000
With
copy
to: Pilgrim’s
Pride Corporation
0000
Xxx.
000 X
Xxxxxxxxx,
XX 00000
Attention:
VP Risk Management
If
to
Carrier: Xxx
Xxxxxxx d/b/a Xxx Xxxxxxx Farms
0000
Xxxx
000
Xxxxxxxxx,
XX 00000
Telephone:
000-000-0000
Attn:
Xxx
Xxxxxxx
or
to
such other address or to the attention of such other person as hereafter
shall
be designated in writing by the applicable party sent in accordance herewith.
Any such notice or communication shall be deemed to have been given either
at
the time of personal delivery or, in the case of delivery service or certified
or registered mail, as of the date of deposit or delivery to the United
States
Mail or expedited delivery service in the manner provided herein, or in
the case
of facsimile, upon receipt. Either party hereto may change the address
for
notice specified above by giving the other party ten (10) days advance
written
notice of such change of address.
Section
13.5 This
Agreement shall be binding upon and inure to the benefit of the parties
and
their respective heirs, legal representatives, and permitted successors
and
assigns. The rights of Carrier under the Agreement are not assignable without
the prior written consent of Shipper.
Section
13.6 This
agreement is entered into in Texas and shall be governed and construed
in
accordance with the laws of the State of Texas. If any matters in dispute
are
required to be settled by litigation, such trials will be decided by a
judge.
THE
PARTIES WAIVE TRIAL BY JURY IN ANY SUCH ACTION(S) AND CONFIRM THAT THIS
WAIVER
IS A MATERIAL INDUCEMENT TO THEIR BUSINESS TRANSACTIONS. For
any such action(s) related to their business transactions or enforcement of
any arbitration, the parties submit themselves to the jurisdiction of the
State
or Federal Courts located in Dallas, Texas.
8
Section
13.7 This
Agreement may not be modified or amended, except by an agreement in writing
signed by an approved representative of Shipper and Carrier. The parties
may
waive any of the conditions contained herein or any of the obligations
of the
other party hereunder, but any such waiver shall be effective only if in
writing
and signed by the party waiving such conditions or obligations.
Section
13.8 Each
person executing this Agreement warrants and represents that he is fully
authorized to do so.
Section
13.9 This
Agreement, including the Exhibits hereto, constitutes the entire agreement
among
the parties pertaining to the subject matter hereof and supersedes all
prior and
contemporaneous agreements and understandings of the parties in connection
therewith. No representation, warranty, covenant, agreement or condition
not
expressed in this Agreement shall be binding upon the parties hereto or
shall
affect or be effective to interpret, change or restrict the provisions
of this
Agreement.
Section
13.10 Shipper
shall not be liable in any respect for failure to tender the minimum number
of
loads set forth in Section 1.1, nor shall Carrier be liable in any respect
for
failure to transport, accept, handle or complete movement of such loads
where
such failures on part of Shipper or Carrier are caused, directly or indirectly,
by war, conditions of war, strikes, lock-outs, explosions, fires, floods,
hurricanes, cyclones, or other acts of God or casualties beyond the control
of
Shipper or Carrier. During the existence of any of these conditions, the
obligations of the parties hereunder shall be suspended for the duration
of
same. Upon cessation of the conditions enumerated, the obligations of the
parties hereunder shall resume and the term of this Agreement shall be
extended
by a period equal to the period during which such obligations were
suspended.
Section
13.11 If
any
provision of this Agreement is held to be violative of any law or regulation,
or
is unenforceable for any reason, such illegality shall not affect the remaining
portions of this Agreement, which shall remain in full force and
effect.
Section
13.12 Carrier
shall be free to accept freight for transportation from shippers other
than
Shipper, and Shipper shall be free to tender freight for transportation
to
carriers other than Carrier.
Section
13.13
Neither
Party will offer or provide to the employees, agents or other representatives
of
the other Party any favors, gratuities, gifts, payments, or anything of
value,
whether or not in an attempt to influence such person’s administration of the
provisions of this Agreement or to otherwise gain unfair advantage individually
and/or relative to competing suppliers/vendors.
Additionally,
each Party will immediately report to the other Party any requests made
for
favors, gratuities, gifts, payments or anything of value by employees,
agents or
other representatives of such Party and will cooperate with respect to
any
inquiry or investigation being conducted related to such activities or
alleged
activities. Pilgrim’s Pride has established its Pride Line with the toll-free
number of 1-888-536-1510 to report any unethical conduct.
Section
13.14 This
Agreement shall be construed as a whole in accordance with the fair and
reasonable meaning of its language, and, regardless of which party co-drafted
this Agreement, this Agreement shall not be construed in favor of or against
either party.
Section
13.15 This
Agreement constitutes the complete and entire agreement between the parties
and
supersedes any prior or contemporaneous agreements or understandings between
the
parties with respect to its subject matter. This Agreement covers and controls
the entire business relationship between the parties including any claims,
disputes or other conflicts which may arise between the parties and which
are
brought or occur after the effective date even if the events or actions
occur in
whole or in part prior to the Effective Date.
9
ARTICLE
14
Carrier’s
Cargo Liability and Claims
Section
14.1 Carrier
shall have the sole and exclusive care, custody and control of the shipments
of
cargo tendered by Shipper from the time Carrier picks up a shipment until
delivery to the customer or consignee. Carrier shall be liable to Shipper
for
actual loss and damage to shipments of cargo, and for delayed deliveries,
arising from Carrier’s performance of or failure to perform the services
required by this Agreement; provided, however, that Carrier shall not be
liable
for loss, damage, or delay to shipments caused solely by an act of God,
public
enemy, acts of war, insurrection, riot, or the negligence of Shipper or
its
customer(s), in which case Carrier has the burden of proving applicability
of
the exception. Any seals applied to trailer are not to be broken or removed
prior to delivery at destination without prior written consent from
Shipper.
Section
14.2 Carrier
shall be liable for the full, actual value of the shipments of cargo tendered
by
Shipper to Carrier. No released value rates, or other limitation of cargo
liability, shall be valid or enforceable against Shipper or its customers
unless
expressly agreed to by Shipper in a signed writing separate from any xxxx
of
lading or other delivery receipt issued by Carrier.
Section
14.3 Shipper
shall file a claim (i) for loss or damage to shipments within three (3)
months
from the date of delivery and (ii) for delay (or non-delivery) within three
(3)
months of the date that delivery reasonably should have been made. Within
ninety
(90) days of receiving a claim from Shipper for loss, damage, or delay,
Carrier
shall pay or deny the claim (in which case the reasons for denial shall
be fully
explained), or make a firm compromise offer.
Section
14.4 To
the
extent that any of the terms of this Agreement are inconsistent with the
Truck
Transportation Act, R.S.O. 1990, c. T.22, as amended, and the Regulations
thereto or similar provincial or territorial legislation having jurisdiction,
and/or the provisions of any xxxx of lading, the terms of this Agreement
shall
prevail.
ARTICLE
15
Bills
of Lading and Delivery Receipts
Section
15.1 Carrier
will issue and sign a standard, uniform straight xxxx of lading or other
receipt
(“Receipt”) acceptable to Shipper and Shipper’s customers upon acceptance of a
shipment of cargo for transportation. If Carrier permits the shipper to
prepare
the xxxx of lading, Carrier warrants that it shall ensure that the xxxx
of
lading properly names Carrier as the “carrier” on the load prior to signing it,
and shall strike through and correct any erroneous designation of any other
person as “carrier” (including Shipper) on the xxxx of lading. Any terms and
conditions written or printed on the Receipt shall have no effect against
Shipper, unless specifically agreed to by Shipper in this Agreement or
in a
separate signed writing apart from the Receipt. Carrier shall submit an
original
copy of the Receipt to Shipper evidencing delivery of the shipment of cargo
unless otherwise instructed by Shipper, in which case Carrier shall retain
custody of the Receipt and provide it to Shipper upon request.
ARTICLE
16
Factoring
Section
16.1 Carrier
shall provide Shipper thirty (30) days prior written notice of any assignment,
factoring, or other transfer of its right to receive payments arising under
this
Agreement and obtain Shipper’s written consent to such assignment, factoring, or
other transfer prior to same taking legal effect. Such written notice shall
include the name and address of assignee/transferee, date, date assignment
is to
begin, and terms of the assignment, and shall be considered delivered upon
receipt of such written notice by Shipper.
ARTICLE
17
Subcontractors
Section
17.1 Carrier
specifically agrees that it shall be the party solely responsible for operating
the equipment necessary to transport cargo under this Agreement and that
it
shall use its best efforts not to sub-contract, broker or tender to any
third
party for transportation any cargo tendered to Carrier pursuant to this
Agreement. In the event that Carrier shall employ any subcontractor or
other
person for the performance of all or any portion of the services required
hereunder to be performed by Carrier, Carrier shall be and remain liable
to
Shipper under the terms of this Agreement including, without limitation,
liability for loss, damage or delay of any shipments of cargo, whether
such
loss, damage or delay occurred while such shipment was in the possession
of
Carrier or such subcontractor or other person. Carrier shall be solely
and
exclusively responsible to pay any charges of any subcontractor or other
person.
10
ARTICLE
18
Recall
Section
18.1 In
the
event any cargo shipped hereunder is recalled pursuant to a Class I Recall
under
regulatory standards promulgated by the U.S.D.A. (“Recall”), whether initiated
by Carrier or by decision, action or order of any governmental authority
due to
the actions of Carrier, Carrier shall notify Shipper via direct telephone
prior
to the implementation of such Recall. Any Recall pursuant to this paragraph
shall be carried out in the name of Carrier, provided, however, that insofar
as
reasonably possible, Carrier shall consult with Shipper as to the necessity
for
and wording of any press release or similar public statement relating to
the
recall or recovery; and Carrier shall be responsible for all costs and
expenses
related to such Recall, including but not limited to shipping expenses.
Section
18.2 In
the
event any cargo shipped hereunder is recalled pursuant to a Class I Recall
under
regulatory standards promulgated by the U.S.D.A. (“Recall”), whether initiated
by Shipper or by decision, action or order of any governmental authority
due to
the actions of Shipper, Shipper shall notify Carrier prior to the implementation
of such Recall via direct telephone prior to the implementation of such
Recall.
Any Recall pursuant to this paragraph shall be carried out in the name
of
Shipper and Shipper shall be responsible for all costs and expenses related
to
such Recall, including but not limited to shipping expenses.
Section
18.3 Any
and
all costs and expenses of cargo inspection and/or testing required by Shipper
to
confirm compliance with this Agreement, or as a result of Recall, shall
be borne
by Carrier.
ARTICLE
19
NO
LIEN
Section
19.1 Carrier
shall have no lien, and hereby expressly waives its right to any lien on
any
cargo, freight, or property of Shipper or any of its customers, consignors
or
consignees.
EXECUTED
on the dates indicated below but effective as of the Effective Date first
above
written.
FOR
CARRIER: FOR
SHIPPER:
XXX
XXXXXXX d/b/a XXX XXXXXXX FARMS PILGRIM’S
PRIDE CORPORATION
By:
/s/
Xxx Xxxxxxx
By:
/s/
Xxxx Xxxxxxxx
Print
Name: Xxx
Xxxxxxx
Print
Name: Xxxx
Xxxxxxxx
Title:
Owner
PPF
Title:
V.P.-Risk
Management
Date:
12-28-05
Date:
1/3/06
/s/
TT
Xxx
Xxxxxx (Initials)
Sr.
V.P.-
Procurement
11
EXHIBIT
A
Carrier
will provide the following transportation services pursuant to the
Agreement:
| 1) |
Hauling
corn and soybean meal from Pittsburg to Mt. Pleasant using Vendor’s
equipment.
|
| 2) |
Hauling
corn and soybean meal from Pittsburg to Mt. Pleasant using Pilgrim’s Pride
equipment.
|
| 3) |
Hauling
flaked corn to Pilgrim’s Pride’s customers using Vendor’s
equipment.
|
| 4) |
Hauling
flaked corn to Pilgrim’s Pride customers using Pilgrim’s Pride’s
equipment.
|
| 5) |
Hauling
sacked feed to Pilgrim’s Pride’s customers using Vendor’s
equipment.
|
| 6) |
Hauling
sacked feed to Pilgrim’s Pride’s customers in Pilgrim’s Pride’s
equipment.
|
| 7) |
Any
other services requested by Shipper and agreed upon by both
Parties.
|
12
EXHIBIT
"1"
FHA
Operating Permit
13
EXHIBIT
"2"
Claim
Form
Standard
Form for Presentation of Loss and Damage Claims
Approved
by the Interstate Commerce Commission; Freight claim Division, American
Railway
Association; National Industrial Traffic League, and the National Association
of
Railway Commissioners.
|
(Name
of person to whom claim is prompted)
|
(Address
of claimant)
|
(Claimant's
Number)
|
||
|
(Name
of Carrier)
|
(Date)
|
(Carrier's
Number)
|
||
|
(Address)
|
This
claim for $
is made
against the carrier named above by Pilgrim's
Pride
for
(Name
of
Claimant)
in
connection with the following described shipments:
(Loss
or
Damage)
Description
of
shipments
Name
and
address of cosignor
(shipper)
Shipped
from : To
(City,
Town or Station) (City,
Town or Station)
Final
Destination : Routed
Via
(City,
Town or Station) (City,
Town or Station)
Xxxx
of
Lading issued by Co:
Date
of Xxxx of Lading
Paid
Freight Xxxx (Pro) Num ; Original
Car Number and Initial
Name
and
address of consignee (whom shipped to)
If
shipment reconsigned en route, state particulars:
DETAILED
STATEMENT SHOWING HOW AMOUNT CLAIMED IS DETERMINED
(Number
and description of articles, nature and extent of loss or damage, invoice
price
of articles, amount of claim, etc.)
Total
Amount Claimed
IN
ADDITION TO THE INFORMATION GIVEN ABOVE, THE FOLLOWING DOCUMENTS ARE
SUBMITTED
IN
SUPPORT
OF THIS CLAIM*
(
) 1. Original
xxxx of lading, if not previously surrendered to carrier
(
) 2. Original
paid freight (expense) xxxx.
(
) 3. Original
invoice or certified copy.
4. Other
particulars obtainable in proof of loss or damage claimed.
Remarks:
The
foregoing statement of facts is hereby certified to as correct: (Signature
of Claimant)
Claimant
should assign to each claim a number, inserting same in the space provided
at
the upper right hand corner of this form. Reference should be made thereto
in
all correspondence pertaining to this claim.
*
Claimants will please place (x) before such of the documents mentioned
as have
been attached, and explain under "Remarks" the absence of any of the
the
documents call for in connection with this claim. When for any reason
it is
impossible for claimant to produce original xxxx of lading, or paid freight
xxxx,
claimant
should indemnify carrier or carriers against duplicate claim, supported
by
original documents.
14
EXHIBIT "3"
PILGRIM’S
PRIDE CARRIER
MINIMUM INSURANCE REQUIREMENTS
All
Carriers providing products or services for Pilgrim's Pride Corporation
are to
have the following minimum requirements on their Certificate of Insurance.
General
Liability
General
Aggregate $2,000,000
Products/Completed
Operations $1,000,000
and/or
Professional Liability $1,000,000
(if applicable)
Each
Occurrence $1,000,000
Automobile
Liability
Combined
Single Limit $1,000,000
Workers
Compensation Statutory
Employers’
Liability
Each
Accident $100,000
Policy
Limit $500,000
Each
Employee $100,000
Pilgrim's
Pride Corporation is to be listed as an Additional
Insured on General
Liability and Auto policies.
A
30-day
notice of cancellation
is also
required. Pilgrim’s Pride Corporation reserves the right to modify these
requirements as deemed necessary for the risk presented to Pilgrim’s Pride
Corporation.
The
certificate holder address should read as follows:
Pilgrim's
Pride Corporation
Attn:
Risk Management
0000
Xxxxxxx 000 Xxxxx
Xxxxxxxxx,
XX 00000
***All
trucking and freight vendors are required to have Motor Truck Cargo with
a
minimum limit of $100,000***
***All
trucking and freight brokers are required to have Contingent Motor Truck
Cargo
with a minimum limit of $100,000***
15
