INDEPENDENT CONTRACTOR AGREEMENT
This INDEPENDENT CONTRACTOR AGREEMENT ("AGREEMENT") is entered into
this ____ day of _________________, 19__ by and between Transport Corporation of
America, Inc. a Minnesota corporation ("CARRIER") and _____________________ of
__________________________________, (the "CONTRACTOR"), each individually, a
"party"; collectively, the "parties."
RECITALS
WHEREAS, the CARRIER, wishes to obtain transportation through an
agreement with CONTRACTOR; and
WHEREAS, the CONTRACTOR is engaged in the business of transporting
freight by motor vehicle for common carriers; and
WHEREAS, the CARRIER and CONTRACTOR desire to enter into this
Agreement to carry out the foregoing;
NOW, THEREFORE, in consideration of the promises and mutual covenants
contained herein, the parties agree as follows:
1. TERM AND TERMINATION
The term of this Agreement shall be for an initial period of 190 days,
commencing on the date set forth above, and shall automatically renew for three
(3) successive thirty (30) day periods, unless otherwise terminated (a) by
either party upon three (3) calendar days' written notice prior to the
expiration of the initial or any renewal term, or (b) in accordance with the
provisions of Section 9, but, in any event, CONTRACTOR shall complete the
performance of all services being performed on the date of termination.
2. CONTRACTOR OBLIGATIONS
2.1 General Duties. CONTRACTOR shall provide transportation
services to CARRIER on an as-requested basis. CONTRACTOR and its employees and
representatives shall perform those duties on behalf of or for CARRIER and only
as requested by CARRIER.
2.2 Equipment. CONTRACTOR agrees to use the following
described Equipment, specifically, a TRACTOR, bearing:
UNIT NO. YEAR MAKE SERIAL NO. STATE LICENSE
together with drivers and all other necessary labor to transport, load and
unload on behalf of CARRIER (or on behalf of such other certificated carriers as
CARRIER may designate through authorized "trip lease" or interchange agreements)
such commodities as the CARRIER may from time to time make available to
CONTRACTOR, and CONTRACTOR may accept for hauling.
2.3 Compliance with Standards. CONTRACTOR shall comply and
ensure that all of its employees and representatives assigned to provide
services to CARRIER shall comply, with all CARRIER policies, rules and
regulations, including, but not limited to CARRIER's Standard Operating
Procedures, as they may be in effect from time to time, which Standard Operating
Procedures have been separately provided and which CONTRACTOR acknowledges
receipt from CARRIER as they are currently in effect.
2.4 Regulatory Requirements. CONTRACTOR recognizes that
CARRIER's business of providing motor carrier transportation services to the
public is subject to regulation by the Federal Government acting through the
Department of Transportation, and by various state and local governments.
CONTRACTOR shall have the responsibility to CARRIER of satisfying these
regulatory requirements, subject at all times to verification by CARRIER, by:
a. Maintaining or causing the Equipment to be maintained
in the state of repair required by all applicable
regulations;
b. Operating the Equipment in accord with all applicable
regulations;
c. Hiring to operate the Equipment only those drivers
who are qualified under all applicable regulations
(any such driver shall have at least one year's
experience in substantially similar work, shall be at
least 22 years old and shall have obtained a Safety
Clearance from CARRIER's Safety Department, which
Safety Clearance must be in effect at all times
driver is assigned by CONTRACTOR to drive any
equipment on behalf of CARRIER); and
d. Doing all other things necessary to conduct the
transportation services provided in this Agreement in
accord with all applicable regulations.
2.5 Method and Means of Performance. CONTRACTOR shall
determine the means and methods of the performance of all transportation
services undertaken by CONTRACTOR under the terms of this AGREEMENT. CONTRACTOR
has and shall retain responsibility for:
a. Hiring, setting the wages, hours and working
conditions and adjusting the grievances of,
supervising, training, disciplining and firing all
drivers, driver's helpers and other workers necessary
for the performance of CONTRACTOR's obligations under
the terms of this Agreement, which drivers, driver's
helpers, and other workers are and shall remain the
employees of CONTRACTOR;
b. Selecting, purchasing or leasing, financing and
maintaining the Equipment;
c. Selecting all routes; and
d. Paying all operating expenses, including but not
limited to, all expenses of fuel for Equipment, fines
for parking, moving violations, license plates, base
plates and any unused portions thereof, Federal
highway use taxes or any other levies or assessments
based upon the operation of the vehicle, unless
specifically identified in Exhibit A to this
Agreement.
At all times, CONTRACTOR shall exercise all diligent efforts to conduct his
operations under this Agreement to assure continued customer satisfaction.
2.6 Personnel Screening. CONTRACTOR shall ensure compliance
with statutory background screening requirements of all its personnel who
perform services for CARRIER. CONTRACTOR will provide proof of such compliance
upon execution hereof and thereafter upon request by the CARRIER.
2.7 License. CONTRACTOR warrants that it has and will maintain
all- necessary licenses, permits, certificates and accreditation's in good
standing during the terms of this Agreement to the extent required by the law.
3. CARRIER DUTIES
3.1 Use of Services. CARRIER agrees to make loads available
from time to time for transportation by CONTRACTOR and CARRIER shall exercise
every reasonable effort to make sufficient loads available so that CONTRACTOR
shall be able to keep the Equipment in reasonably regular use under the terms of
this Agreement, although this shall not be construed as an agreement by CARRIER
to furnish any specific number of loads or pounds of freight for transportation
by CONTRACTOR at any particular time or any particular place.
3.2 Fines. Except when a violation results from the act or
omission of CONTRACTOR, CARRIER assumes risks and costs of fines for (i)
overweight and oversized trailers when the trailers are pre-loaded, sealed or
the load is containerized, or when the trailer or loading is otherwise outside
CONTRACTOR's control and (ii) improperly permitted overweight and over dimension
loads; carrier shall reimburse CONTRACTOR for any fines paid by the CONTRACTOR
on account of overweight or over dimension loads handled at the direction of the
CARRIER.
3.3 Government Identification. CARRIER will provide all
identification required by any governmental agencies to be affixed to Equipment,
and CONTRACTOR agrees that such identification shall be removed and returned to
CARRIER upon termination of this Agreement. Such identification shall be
consistent with signage used by CARRIER and must be approved by CARRIER.
4. BILLING AND COMPENSATION
4.1 Compensation. For the full and proper performance of each
trip made by the CONTRACTOR under the terms of this Agreement, the CARRIER
agrees, with such exceptions as agreed to between CARRIER and CONTRACTOR and
specifically provided for on CARRIER's prenumbered trip record issued to
CONTRACTOR or his driver for each trip, to pay CONTRACTOR in accordance with a
schedule issued by CARRIER, attached hereto as Exhibit A and made a part hereof.
CARRIER may revise such schedule from time to time, and the rates set forth in
any such revised schedule shall become effective when the schedule is issued to
CONTRACTOR. In the case of any trip in which CONTRACTOR is paid a percentage of
gross revenue received by CARRIER, CARRIER shall, at the time of settlement with
CONTRACTOR, give CONTRACTOR a copy of the rated freight xxxx. CARRIER's tariff
may be inspected by CONTRACTOR at CARRIER's office at 0000 Xxxxxx Xxxxxx Xxxx,
Xxxxx, XX 00000.
This amount shall constitute full payment to CONTRACTOR for use of the Equipment
and for the services of CONTRACTOR's driver, including all payments for pick-up,
delivery, and transportation between points of origin and destination. Any
amounts overpaid by CARRIER for pick-up, delivery, overpayments on previous
loads and similar items shall be deducted from this amount.
4.2 Settlement. CARRIER shall settle with CONTRACTOR on a
weekly basis after the successful completion of his assignment. Submission by
CONTRACTOR by mail or in person of those documents showing full and proper
performance of the terms of this Agreement on each trip is required and CARRIER
shall have the right to suspend making loads available to CONTRACTOR until such
documents are received. The required documents shall include Bills of Lading,
Daily Logs required by the Department of Transportation and those documents
necessary for the CARRIER to obtain payment from the shipper customer. CARRIER
shall settle with CONTRACTOR in all cases within fifteen (15) days after the
submission of the above-described documents by CARRIER. No final settlement
shall be made until CONTRACTOR has returned to CARRIER all required documents
referred to in the preceding sentence, as well as all identification required by
government agencies, as provided in Section 3.3 hereof, and has returned to
CARRIER all CARRIER property in the condition as it was received.
4.3 Deductions. In any case where CONTRACTOR has secured an
advance of any kind from CARRIER, or if there shall be any other amounts due to
CARRIER from the CONTRACTOR or CONTRACTOR's authorized agents or employees, the
CARRIER shall be authorized to deduct the amount of such advance or other
amounts due to the CARRIER from the CONTRACTOR in settling with the CONTRACTOR
under the terms of this Agreement. CONTRACTOR shall be advised as to the method
of computation used to arrive at the amount of each deduction. CONTRACTOR shall
be afforded copies of those documents which are necessary to determine the
validity of the deduction. In addition, the CARRIER shall have a period of
fifteen (15) days after termination of this Agreement to verify the account of
the CONTRACTOR and to make appropriate adjustments before final settlement.
CARRIER shall be under no obligation to make such final settlement unless and
until CONTRACTOR has returned the identification described in Section 3.3 to
CARRIER.
5. NATURE OF ARRANGEMENT
This Agreement shall be interpreted as furnishing to CARRIER the
exclusive possession, control and use of the equipment, as those terms are used
in the Department of Transportation Regulation on Lease and Interchange of
Vehicles. CARRIER assumes complete responsibility for the operation of the
Equipment under the terms of such regulations for the duration of this
Agreement.
6. INSURANCE
6.1 CONTRACTOR Liability. CONTRACTOR shall be responsible and
liable to CARRIER and agrees to pay for shortage of, loss of, or damage to cargo
transported by CONTRACTOR in the event that such shortage, loss or damage is
caused directly or indirectly by the operations of CONTRACTOR or its employees
or agents. CONTRACTOR shall further be responsible and liable to CARRIER for the
first $500 in damage or loss on account of fire, theft, collision or upset to
any equipment of CARRIER used by CONTRACTOR in pursuance of this Agreement. Any
such payments due from CONTRACTOR under this Section 6.1 shall be deducted from
any monies due CONTRACTOR under this Agreement only after a written explanation
and itemization of the deduction has been furnished CONTRACTOR by CARRIER.
6.2 CONTRACTOR Coverage. CARRIER shall in no way be liable for
any damage which may occur to the Equipment of CONTRACTOR. CARRIER shall
maintain at its own expense public liability, property damage, required state
insurance, and cargo insurance coverage as concerns shippers and the general
public; however, CONTRACTOR shall indemnify and be liable to CARRIER for any
loss or damage to third persons or property, including any equipment of CARRIER
which results from negligent operations of CONTRACTOR, its agents or employees.
CONTRACTOR shall, throughout the term of this Agreement, purchase and keep in
force bobtail coverage, and shall furnish CARRIER with a certificate of
insurance satisfactory to CARRIER evidencing such coverage.
7. INDEPENDENT CONTRACTOR RELATIONSHIP
7.1 Independent Contractor. It is understood and agreed that
CONTRACTOR, including its employees, agents and representatives, is an
independent contractor and nothing herein to the contrary is intended nor shall
be construed to create an employer/employee, partners of partnership or joint
venture relationship between CONTRACTOR and the CARRIER, between CONTRACTOR and
any CARRIER employee or between CARRIER and any CONTRACTOR employee, agent or
representative. CONTRACTOR agrees and acknowledges that neither it nor any of
its employees, agents or representatives has any right or authorization, express
or implied to act for the CARRIER or incur, assume or create any obligation,
responsibility or liability on behalf of the CARRIER or make any representations
or warranties concerning the CARRIER or the services in the name of or on behalf
of the CARRIER or bind the CARRIER in any manner whatsoever. In no event shall
either party be liable for the debts or obligations of the other except as
otherwise specifically provided in this Agreement.
7.2 Contractor Responsible For Taxes. CONTRACTOR and each of
its employees and representatives will be solely responsible for and will pay
any income, Social Security, Medicare, unemployment, Workers' Compensation or
Federal highway use assessments or taxes with respect to any amounts paid to
CONTRACTOR hereunder. Payment of any taxes or other amounts shall be directly
made by CONTRACTOR, and CONTRACTOR will file all required forms or documents
with the Internal Revenue Service or any state. CARRIER shall not be responsible
for and will not withhold on behalf of CONTRACTOR or its employees and
representatives any sums for income tax, unemployment insurance, Social Security
or any other withholdings pursuant to any law or requirement of any governmental
body. Neither CONTRACTOR not its employees or representatives shall have any
claim under this Agreement for pension or retirement benefits, social security,
workers compensation, health, disability, professional malpractice, or
unemployment insurance benefits of any kind. CONTRACTOR will indemnify and hold
harmless the CARRIER from any and all loss or liability, including attorneys
fees and costs (at all levels including appeal), arising from its failure to
make such payments, withholdings and benefits, if any.
8. RESTRICTIVE COVENANT
8.1 Restrictive Covenants. During the term of this Agreement
and for a period of one (1) year after its termination by either party for any
reason, with or without cause, CONTRACTOR hereby agrees that it will not,
directly or indirectly, for itself or any person, firm, corporation, partnership
association or other entity divert business from the CARRIER or solicit any
customer of the CARRIER with whom such CONTRACTOR has had any contact whosoever
of any nature or kind as a result of this engagement.
8.2 Remedies. CONTRACTOR further acknowledges that it would be
very difficult or impossible to measure the damages resulting from any breach of
Section 8.1. CONTRACTOR further acknowledges that the restrictions contained
herein are reasonable and are reasonably necessary for the protection of the
CARRIER'S business. A violation by CONTRACTOR or any of its employees or
representatives of such covenant will constitute irreparable damage to the
CARRIER. Therefore, CONTRACTOR hereby agrees that any breach or threatened
breach by it or any of its employees or representatives of any provision of
Section 8.1 shall entitle CARRIER, in addition to any other legal remedies, to
apply to any court of competent jurisdiction to enjoin such breach or threatened
breach. If the restrictions contemplated in Section 8.1 shall for any reason be
held by a court of competent jurisdiction to be excessively broad, such
restrictions shall be construed to be so limited or reduced so as to be
enforceable. CONTRACTOR understands and agrees that each provision and
restriction agreed to by CONTRACTOR in Section 8.1 shall be separable and
divisible from every other provision.
9. TERMINATION
9.1 Immediate Termination. Unless otherwise provided herein,
this Agreement may be terminated immediately by the CARRIER by providing the
notice required by Section 10 hereof, if
a. CONTRACTOR commits a material breach of any term of
this Agreement and CARRIER may hold CONTRACTOR liable
for damages as a result of such breach; or
b. CONTRACTOR fails to notify CARRIER of any
modification or cancellation of licensure,
certification or insurance as required herein, or
takes any action or fails to take any action which
action or failure could result in an adverse
modification or cancellation of that license,
certification or insurance; or the permanent
cessation of CONTRACTOR'S business; or if CONTRACTOR
is adjudicated as bankrupt or insolvent, files a
voluntary petition in bankruptcy or petition or
answer seeking reorganization or other relief under
any insolvency law.
9.2 Continuing Obligations. Anything to the contrary
notwithstanding, this Agreement shall remain in effect after the date of
termination with regard to those covenants contained herein that are expressly
made to the extent beyond the term of this Agreement or which may be necessary
to allow for the resolution of all pending matters as of the date of
termination. Upon termination by either party, the CARRIER shall have no further
obligation to pay the CONTRACTOR any compensation except for compensation to
which CONTRACTOR is entitled for services performed prior to the actual date of
termination.
9.3 Completion of Services. If for any reason, CONTRACTOR
shall fail to complete transportation of commodities in transit, or abandons a
shipment or otherwise subjects CARRIER to liabilities to shippers or
governmental agencies on account of the acts or omissions of CONTRACTOR en
route, CONTRACTOR expressly agrees that CARRIER shall have the right to complete
performance using the same or other equipment, and hold CONTRACTOR liable for
the costs thereof and for any other damages. CONTRACTOR hereby waives any
recourse against CARRIER for such action and agrees to reimburse CARRIER for any
costs and expenses arising out of such completion of such trip, and to pay to
CARRIER any damages for which CARRIER may be liable to shipper arising out of
such breach of contract by CONTRACTOR.
10. NOTICES
All notices or other communications required or permitted hereunder
shall be in writing and shall be delivered in person, or by means of certified
or registered mail, postage paid, return receipt requested, to such party at its
address as set forth below. All such notices shall be deemed given upon delivery
if delivered by hand, on the third business day after mailing if mailed as
aforesaid.
A. If to CONTRACTOR:
B. If to CARRIER: Transport Corporation of America, Inc.
0000 Xxxxxx Xxxxxx Xxxx
Xxxxx, XX 00000
Attention: Director of Independent
Contractor Services
11. MISCELLANEOUS
11.1 Entire Agreement. This Agreement constitutes the entire
agreement between the parties hereto with respect to the subject matter hereof.
It supersedes all prior negotiations, letters and understandings relating to the
subject matter hereof.
11.2 Assignment. This Agreement may not be assigned by the
CONTRACTOR without the prior written consent of the CARRIER.
11.3 Choice of Law. This Agreement will be interpreted,
construed and enforced in accordance with the laws of the State of Minnesota.
11.4 Effect of Waiver. The failure of any party at any time or
times to require performance of any provision of this Agreement will in no
manner affect the right to enforce the same. The waiver by any party of any
breach of any provision of this Agreement will not be construed to be a waiver
by any such party or any succeeding breach of that provision or a waiver by such
party of any breach of any other provision.
11.5 Severability. The invalidity, illegality or
unenforceability of any provision or provisions of this Agreement will not
affect any other provision of this Agreement, which will remain in full force
and effect, nor will the invalidity, illegality or unenforceability of a portion
of any provision of this Agreement affect the balance of such provision. In the
event that any one or more of the provisions contained in this Agreement or any
portion thereof shall for any reason be held to be invalid, illegal or
unenforceable in any respect, this Agreement shall be reformed, construed and
enforced as if such invalid, illegal or unenforceable provision had never been
contained herein.
11.6 Binding Nature. This Agreement will be binding upon and
will inure to the benefit of any successor or successors of the parties hereto.
11.7 No Third-Party Beneficiaries. No person shall be deemed
to possess any third-party beneficiary right pursuant to this Agreement. It is
the intent of the parties hereto that no direct benefit to any third party is
intended or implied by the execution of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as the day
and year first above written.
CARRIER
TRANSPORT CORPORATION OF AMERICA, INC.
By: _____________________________________
Its: _________________________________
CONTRACTOR
____________________________________
a _____________________ corporation
By: _____________________________________
Printed Name: ____________________________
Title: ___________________________________
EXHIBIT A
COMPENSATION
