MIKE BENBEN INC. SERVICE TERMS AND CONDITIONS
TRANSPORTATION OF PRODUCE
Upon request of Shipper and as directed by it, Vendor agrees for the compensation to be agreed in writing prior to dispatch, to arrange and provide transportation services designed to meet Shipper's needs in strict accordance with the duties and obligations set forth herein.
1. Load Confirmation Sheet . Each shipment tendered by Shipper to Vendor shall be initiated by a load confirmation sheet, (in the absence of other agreed arrangement), in form and substance to the document attached hereto as Appendix A. The origin, destination, commodities and compensation to be paid Vendor shall be reflected thereon as well as any special service conditions or pickup and delivery schedule requested by Shipper. Vendor shall accept the load tender by assigning and returning via fax or electronically the executed load confirmation sheet confirming its contractual obligation to provide service and acceptance of the compensation agreed by the parties. At the time of booking, and no later than prior to pickup, Vendor shall specify on the load confirmation sheet or by separate writing, the identity of any carrier, if other than Vendor, retained by Vendor to make pickup. Compliance with this requirement by Vendor is essential in order to ensure compliance with chain of security requirements imposed by the FDA, to avoid billing dispute and to ensure that the carrier providing service is licensed, authorized and insured as well as Vendor's agent in fact for assuming the obligations set forth herein.
The failure of Vendor to identify any party other than the named Vendor prior to pickup shall result in Vendor accepting full responsibility for the acts or omissions of any carrier, driver or personnel in possession of a load tendered by Shipper to Vendor who acts with apparent authority as Vendor's agent.
2. Vendor's Warranties . Vendor warrants that any carrier in possession and control of shipper's product under this contract will be properly authorized, licensed and insured by the FMCSA and enjoy a safety rating of not less than satisfactory, no FMCSA rating, OR have a conditional rating but have filed a status upgrade request form (pursuant to 49 C.F.R. §385.17 Change to safety rating based on corrective actions ). In the event Vendor's request for a safety change rating is denied by the FMCSA the Vendor warrants that it will notify the shipper immediately regarding the denial. Vendor further warrants that it and/or any service provider retained by it will provide service from origin to destination in accordance with all FDA health and U.S. DOT safety requirements with respect to the transportation of goods in interstate commerce and perishable foodstuffs in particular. Service will be provided with reasonable dispatch and Vendor warrants that transit times set by appointments will be kept to the extent possible. Vendor agrees to contact Shipper in the event of any delay in transit and Shipper will assist Vendor in re-setting delivery times without penalty where delays are not beyond the reasonable control of Vendor and any subcontracted service provider.
Vendor agrees TO INDEMNIFY AND HOLD HARMLESS SHIPPER, ITS OFFICERS AND DIRECTORS, FROM ANY CLAIM, LIABILITY, INCLUDING PERSONAL INJURY TO THIRD PARTIES AND EMPLOYEES AND AGENTS OF VENDOR AND PROPERTY DAMAGE (INCLUDING CARGO), ARISING OUT OF THE ACTS OR OMISSIONS OF VENDOR AND ITS RETAINED SERVICE PROVIDERS IN THE PERFORMANCE OF TRANSPORTATION SERVICES rendered pursuant to this contract.
As additional indemnity, Vendor shall indemnify and hold Shipper and its customer harmless from any demand for payment from any service provider it retains and shall waive all liens.
3. Cargo Claims . Vendor warrants that all services provided will be rendered in appropriate trailer equipment including refrigerated trailer equipment which meets all requirements for the sanitary transportation of foodstuffs. Vendor warrants that all shipments will be pulped and/or inspected to its driver's satisfaction at time of pickup and that the execution of a bill of lading shall be acceptance of all shipments in good order and suitable for transport. Vendor warrants that it and any carrier retained by it has all risk cargo insurance in the amount of not less than $100,000 per occurrence and that such insurance has no exclusion which would preclude the payment of a cargo claim coextensive with the liability imposed upon common carriers of regulated commodities coextensive with the Carmack Amendment, 49 U.S.C. 14706.
Vendor and any subcontracted carrier retained by it shall immediately notify Shipper in the event of any delay, rejection of shipment by consignee or issuance of a delivery receipt to which exceptions are taken. Shipper shall direct the salvage and/or reconsignment in its sole discretion subject to its duty to reasonably mitigate damages. Shipper reserves the right to offset cargo claims against freight charges due to Vendor until such time as the claim is adjusted or settled.
Any claim not amicably resolved within 30 days may, at Shipper's request, be submitted to binding arbitration before the Transportation Lawyers Association ADR Council, to be held in Racine County , Wisconsin .
4. Insurance . Vendor warrants that any carrier under possession and control of a shipment pursuant to this contract shall have the following insurance:
(a) Auto liability insurance in the amount of not less than $750,000 (Form BMC-91X on file with the FMCSA).
(b) Commercial general liability insurance in the amount of $1,000,000 per occurrence.
(c) Worker's compensation insurance as required by state law.
(d) All risk motor cargo insurance coextensive with carrier's obligation under this contract in the amount of $100,000 per occurrence.
To the extent Vendor acts as a truck broker in any transaction, it warrants that it also maintains coverage required by (b) and (c) above and contingent liability and cargo insurance in the amount required by (a) and (d) above, all of which shall inure to Shipper's benefit.
5. Shipping Documents . All shipments shall move from origin to destination subject to the terms and conditions of the exempt Shipper's bill of lading attached hereto as Appendix B. The issuance of any non-conforming document by Vendor or its retained carrier shall serve as an additional delivery receipt only. Vendor warrants that the temperature designated by Shipper on the bill of lading at time of pickup shall be maintained during transit and that the shipment will be tendered to the identified consignee in good order and like condition.
6. Payment Terms . Subject to the right of offset, Shipper will promptly pay Vendor after receipt of the actual proof of delivery, after final processing of paperwork and after resolution of any load issues, if any. Vendor shall look solely to Shipper for payment of freight charges and warrants that neither it nor any service provider retained by it will assert any lien on a shipment as a pre-condition for payment or otherwise demand payment from any customer of Shipper. Vendor warrants that all payments due to third party trucking service providers will be paid by the Vendor; no payments are due from the Shipper to the trucking service provider. Vendor agrees to defend, indemnify and hold Shipper harmless from any claim by any trucking service provider retained by the Vendor for lack of payment after Shipper has paid Vendor for shipment. If a Truck Broker has arranged for carriage of the property listed on the face of this Bill of Lading, then all parties acknowledge and agree that Mike Benben, Inc. shall pay all transportation charges to the Truck Broker AND THAT THE CARRIER SHALL LOOK SOLELY AND EXCLUSIVELY TO THE TRUCK BROKER FOR PAYMENT OF ITS SERVICES.
7. Independent Contractor Status . Vendor warrants that it is an independent contractor and a separate and distinct trade or business from Shipper and that Vendor is solely responsible for the transportation services provided to Shipper including the selection of all subcontracted motor carriers.
8. Driver check call required . In order to meet our customers' request for progress reports, we require drivers to contact us each morning to advise their location and estimated time of arrival by calling the instructed phone number or the driver may be fined up to $200 for each failure to call.
9. Double brokering . Double brokering is forbidden and vendor warrants pickup and delivery by it or in the case of a truck broker, its retained carrier.
10. Integration Clause . This Agreement shall constitute the entire understanding between the parties and may not be changed or modified unless otherwise agreed.
11. Law and Forum . General principles of federal transportation law and the laws of the State of Wisconsin shall apply. The parties agree that any litigation involving this agreement shall be maintained before a court of proper jurisdiction in Racine County , Wisconsin .