EXHIBIT 10.31
Please print this agreement and complete the necessary information.
Sign the completed agreement and fax it to POWER2SHIP at 000-000-0000.
If you have any comments or questions, please contact Customer Service
toll-free at 0-000-000-0000.
POWER2SHIP, INC.
APPLICATION SERVICE PROVIDER / SHIPPER SERVICES AGREEMENT
This Application Service Provider Agreement, dated as of ____________,
200__, is by and between Power2Ship, Inc., a Nevada Corporation with its
principal place of business at 000 Xxxxx Xxxxx Xxxx, Xxxx Xxxxx, Xxxxxxx 00000
(hereinafter referred to as "ASP"), and ___________________, a _________________
Corporation with its principal place of business
___________________________________________ at _________________________________
(hereinafter referred to as "SHIPPER").
WITNESSETH:
WHEREAS, SHIPPER desires ASP to provide online access and transportation options
for commodities sold by SHIPPER; and
WHEREAS, ASP desires to provide user name and password access to the Power2Ship
MobileMarket to SHIPPER for freight tendering by SHIPPER to Power2Ship Member
Carriers; and
WHEREAS, ASP holds Property Broker Permit No. MC-467847 issued by the Federal
Motor Carrier Safety Administration and assumes the Broker of record for
shipments transacted through the ASP;
NOW, THEREFORE, in consideration of the mutual and dependent promises contained
herein, SHIPPER and ASP agree as follows:
1. Transportation Service. ASP will:
(a) provide available P2S MEMBER CARRIER capacity with transportation
charges from which SHIPPER can select a P2S MEMBER CARRIER for
transportation services,
(b) process electronic load tender to SHIPPER's selected P2S MEMBER
CARRIER, and P2S MEMBER CARRIER's electronic acceptance or decline to
SHIPPER.
(c) provide SHIPPER with status and location updates from selected P2S
MEMBER CARRIERS.
(d) provide single source for delivery information to be viewed by
SHIPPER based on MEMBER CARRIER data input on shipments tendered
through Power2Ship.
(e) process freight invoices for "signed clear" transportation
transactions to SHIPPER.
(f) process freight payment to the P2S MEMBER CARRIER on terms of
membership agreement with ASP in accordance with CARRIER'S membership
agreement.
(g) Notify SHIPPER and P2S MEMBER CARRIER of any freight claims or
exceptions noted upon delivery for CARRIER, SHIPPER, and P2S Customer
service resolution; resulting in P2S adjusted settlement from SHIPPER
and P2S adjusted settlement to CARRIER.
(h) assure SHIPPER service are consistent with:
(1) SHIPPER'S policies, reasonable rules and regulations as to
safety and load security, based on SHIPPER'S pre-defined
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requirements as loaded by SHIPPER into the Power2Ship Shipper
Profile referring to the type of equipment, insurance, and
KPI's (Key Performance Indicators).
(2) State and federal regulations and statutes applicable to
highway transportation and property brokerage services.
2. Contract Motor Carrier Service.
(a) Motor Carrier Contract. ASP will display P2S MEMBER CARRIER
capacity to SHIPPER anonymously unless the P2S MEMBER CARRIER has been
identified as a "Favorite Carrier" in the SHIPPER settings, in which case the
P2S system will identify the P2S MEMBER CARRIER name as well as selection
criteria. The "CHOOSE" feature from available capacity will initiate the ASP to
contract with the P2S MEMBER CARRIER at the agreed upon rate and the SHIPPER
will see the charges that they will be billed for the service of moving the
shipment.
(b) Contract Motor Carrier Selection. ASP as part of the P2S MEMBER
CARRIER qualification and membership sign-up, will collect and retain on file
carrier insurance, Certificate of Operating Authority, and equipment profile
information to determine appropriate P2S MEMBER CARRIER capacity criteria for
SHIPPER to select from. P2S MEMBER CARRIER capacity that is displayed for
SHIPPER selection will be based on total carrier performance to include, but not
limited to, the following:
(1) adherence to the Department of Transportation carrier
requirements
(2) ability to fulfill SHIPPER's service requirements based on
profile,
(3) equipment availability,
(4) compliance with SHIPPER's rules and regulations, and
(5) transportation rate.
(c) Shipping Documents. SHIPPER will populate the ASP system with
origin (Consignor) and Destination (Consignee), shipping quantity of described
packaging units to be shipped, and any special instructions not identified in
the profile of the shipping or receiving location. This collected information is
populated into the ASP and a Xxxx of Lading is generated electronically for the
P2S MEMBER CARRIERS who may have the GPS / PDA. Due to Department of
Transportation laws, a paper Xxxx of Lading is required to exchange hands and
accompany the shipment which is the SHIPPER's responsibility to obtain sign off
from the carrier at the origin, to accept transfer of goods to the P2S MEMBER
CARRIERS asset. ASP can generate the Xxxx of Lading as an attachment to an email
and send it to the SHIPPER for execution with the P2S MEMBER CARRIER.
(d) Contract Motor Carrier Insurance. The Carrier Contract will require
each motor carrier to maintain in full force and effect the following policies
of insurance:
(1) Each P2S MEMBER CARRIER is required to provide their
insurance limits, substantiated by a current Certificate of
Insurance, which ASP maintains on file. This information is
used to match qualified MEMBER CARRIERS to SHIPPER
requirements. Such insurance shall be primary and not
contributory to any coverage available to SHIPPER under
similar insurance policies, or carrier may provide a
certificate of self-insurance, in the hereinafter referred to
amounts, issued by a state or federal agency.
(I) A basic automobile liability insurance policy as
required in the jurisdictions in which the vehicles
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are operated, covering liability for bodily injury,
death, and property damage arising out of the use and
operation of the vehicles, with a combined single
limits of at least $750,000.00 per occurrence.
(II) A cargo loss or damage insurance policy covering
all cargo transported in the vehicles, with a minimum
limit of $100,000.00 per occurrence.
3. Payment of a Freight Charge. SHIPPER and ASP agree to the following:
(a) Freight Collect Shipments. ASP will not process any Freight Collect
Shipments.
(b) Freight Prepaid Shipments. If the SHIPPER designates the shipment
to be freight prepaid then the SHIPPER and ASP will have the following
responsibilities:
(1) Payment to ASP. The total charge due from SHIPPER for each
shipping transaction shall be the charges associated with the
P2S MEMBER CARRIERS capacity selected by the SHIPPER. SHIPPER
agrees to pay ASP within fifteen (15) days after receipt of
electronic invoice for freight charges. SHIPPER agrees that in
the event an electronic invoice is used, the electronic
signature and GPS location is proof of delivery and further
agrees to not require a paper copy of the signed proof of
delivery or xxxx of lading be attached to the electronic
invoice.
(2) Invoicing of SHIPPER. ASP shall have the exclusive right
to xxxx all freight charges to SHIPPER for shipments handled
pursuant to this Agreement. Contract Motor Carrier will be
instructed to xxxx only ASP.
4. Cargo Claim.
(a) Notice of a Cargo Claim. ASP agrees to notify SHIPPER at the
earliest date and time afterreceipt of notice of loss or damage.
(b) Processing of Cargo Claim. ASP after notification of a cargo claim,
must receive from SHIPPER a documented loss or damage statement noted on
original Xxxx of Lading. ASP will file on behalf of SHIPPER a cargo loss or
damage claim, and will thereafter investigate, document, manage, process, assist
in litigation at SHIPPER'S expense, and/or settle with the approval of SHIPPER
the cargo loss or damage claim. ASP will not be liable for cargo loss, damage or
delay.
(c) Filing of a Cargo Claim. So long as SHIPPER has properly notified
ASP within the hereinafter referred to time limit, ASP shall be deemed to have
filed with the Contract Motor Carrier, on behalf of SHIPPER, a cargo claim in a
timely manner by mailing of a claim within the time limit of nine (9) months,
from date that empty time and date are entered into ASP system. Claims shall be
governed by the Federal Motor Carrier Regulations at 49 C.F.R. 1005.
(d) Filing Suit to Collect a Cargo Claim. The time limit for SHIPPER
filing a suit against a Contract Motor Carrier for a loss or damage claim shall
be two (2) years from the date ASP or SHIPPER receives a written disallowance
from such Contract Motor Carrier.
5. ASP/SHIPPER Relationship. The relationship between ASP and SHIPPER shall be
that of an Independent Contractor.
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6. Force Majeure.
(a) Non-Liability. ASP or SHIPPER shall not incur any liability to the
other for failure to perform any obligation under this agreement caused or
contributed to by events beyond such parties reasonable control, such as (by way
of example, and not limitation), war, fire, governmental regulations, labor
disputes, equipment shortages attributed to embargoes, work stoppages or
slowdowns by entities controlling equipment and acting in concert, diesel fuel
shortages, computer failure or acts of God (collectively, "FORCE MAJEURE").
(b) Extension of Time. ASP and SHIPPER agree that if a party's
performance of its obligations under this agreement is excused because of FORCE
MAJEURE, the term of this Agreement shall automatically be extended by a period
of time equal to the period of time such party's performance was so excused. ASP
and SHIPPER further agree to use due diligence in curing any FORCE MAJEURE
event, except that the settlement of any labor dispute, strike, work stoppages,
slowdowns or embargoes shall be within the sole discretion of the party affected
thereby.
(c) Termination due to FORCE MAJEURE. ASP and SHIPPER agree that if
service is interrupted for more than thirty (30) consecutive days, either party
may immediately terminate this Agreement without liability by providing written
notice to the other.
7. Confidentiality. SHIPPER hereby recognizes and acknowledges that the systems,
methods, computer programs and software, programs, practices, processes, rates,
customer lists, all trade secrets, know-how and information relating to ASP's
business, forms, products, processes, developments, sales and promotional
systems and operations ("Confidential Matters"), is a valuable, special and
unique asset of the business of ASP. SHIPPER agrees that it will not, during or
after the term of this Agreement, disclose ASP's Confidential Matters or any
part thereof to any person, firm, corporation, association, or other entity for
any reason or purpose whatsoever. In the event of any breach or threatened
breach by SHIPPER of this Paragraph, ASP shall be entitled to an injunction
restraining SHIPPER from disclosing, in whole or in part, Confidential Matters,
restraining it from contacting, subsequent to rendering any services to any
person, firm, corporation, association, or other entity to whom such list, in
whole or in part, has been disclosed or aid to be disclosed. Nothing hereunder
shall be construed as prohibiting ASP from pursuing any remedies available to
ASP at law or in equity for such breach, including the recovery of monetary
damages from SHIPPER.
8. Covenant Not to Solicit ASP's Carriers. SHIPPER agrees not to directly
solicit the services of ASP's Carriers introduced to Shipper by ASP that it
utilized as a result of the usage of the Power2Ship application under this
Agreement. Should SHIPPER breach the provision in this paragraph, it is
understood between the parties that damages to ASP would be hard to calculate.
Therefore, the parties have stipulated and agreed that should SHIPPER breach the
above provision, that the ASP will be entitled to the following:
(a) ASP will be entitled, in addition to any other rights and remedies,
to an injunction or restraining order restraining SHIPPER from
committing or continuing to commit any breach of these provisions, and
SHIPPER hereby consents to the issuance of such injunction or
restraining order or other equitable relief without bond or other
security and without the necessity of actual damage to ASP.
(b) SHIPPER shall pay ASP a commission of fifteen percent (15%) of the
transportation or revenue received on the movement of traffic.
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9. Indemnification. ASP agrees to defend, indemnify, and hold SHIPPER harmless
from and against any loss, damage, cost, claim (except cargo claim), liability,
or expense resulting from bodily injury, death or property damage caused by
ASP's negligence or willful acts or omissions in the performance of ASP's
obligations pursuant to this Agreement; provided however, that notwithstanding
anything contained in this Agreement to the contrary;
(a) ASP is not obligated to defend, indemnify, and hold SHIPPER
harmless from and against any claims arising out of the negligence or
willful acts or omission of SHIPPER or its agents, service, employees,
contractors, or consignees ; and (b) ASP is not obligated to defend,
indemnify, or hold SHIPPER harmless from or against any claims relating
to loss, damage, or injury to commodities of SHIPPER.
10. Fees and Term of this Agreement.
(a) Monthly Fees. The monthly P2S membership fee will be at a rate of
$_________ per month, and will include unlimited usage and access for
SHIPPER.
(b) Initial Term. The initial term of this Agreement shall commence on
the date of this Agreement and continue for a period of one (1) year.
(c) Renewal. Upon expiration of the initial term of this Agreement, it
shall be automatically renewed in additional one (1) year (commencing
on the date of which the initial term ends and ending one (1) year from
the date, unless earlier terminated) increments, unless either party
shall have given the other written notice that it intends not to so
renew this Agreement no later than thirty (30) days prior to the date
on which the initial term ends.
(d) Open Termination. ASP and SHIPPER agree that either party may
terminate this Agreement without cause by giving the other written
notice of such termination at least thirty (30) days prior to the date
of termination.
11. Entire Agreement. It is understood that this Agreement contains all of
the matters agreed upon and no verbal statement can add to, vary, or
void the effect of any of its terms.
12. Jurisdiction. This Agreement shall be deemed to have been drawn under
Florida law and this Agreement shall be construed in accordance with
the laws of the State of Florida.
13. Arbitration. Except as set forth in Paragraph 7 of this agreement,
(a) If a dispute arises out of or relates to this Agreement, or a
breach thereof, and if said dispute cannot be settled through direct
discussions, the parties agree to first endeavor to settle the dispute
in an amicable manner by mediation under the Commercial Mediation Rules
of the American Arbitration Association before resorting to
arbitration. Thereafter any unresolved controversy or claim arising out
of or relating to this agreement or a breach thereof shall be settled
by arbitration in accordance with the rule of the American Arbitration
Association, and judgment upon the award rendered by the Arbitrator may
be entered in any court having jurisdiction thereof.
(b) The situs of the arbitration shall be Palm Beach County Florida.
(c) In the event that dispute results in arbitration, the parties agree
that the prevailing party shall be entitled to reasonable attorneys
fees to be fixed by the arbitrator.
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IN WITNESS WHEREOF, SHIPPER and ASP have executed this Agreement in duplicate,
each copy for all purposes to be deemed an original, as of the date first above
written.
ASP: Power2Ship, INC.:
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------
Xxxxxxx X. Xxxxxx
President, Power2Ship, Inc.
SHIPPER:
Signature: _________________________________________
Name: _________________________________________
(please print)
Title: _________________________________________
(please print)
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