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LOGISTICS TERMS & CONDITIONS
ATS LOGISTICS SERVICES INC., DBA SUREWAY TRANSPORTATION COMPANY SHIPPER/BROKER
TERMS AND CONDITIONS
The terms and conditions describe the process which ATS/Sureway will arrange for
transportation services. It is understood that these terms and conditions will
apply to all services provided by ATS/Sureway to Shipper.
ATS/Sureway (Broker) is licensed as a property Broker by the Federal Motor
Carrier Safety Administration (“FMCSA”) in Docket Number MC-186013, or by
appropriate State agencies. ATS/Sureway is defined as a Broker according to 49
USC § 13102(2). As a licensed Broker, Broker arranges for exempt and/or
nonexempt freight transportation by Motor Carrier. Motor Carrier, or Carrier, is
defined by 49 USC § 13102(14). A copy of Broker’s authority is available upon
request.
Shipper, to satisfy some of its transportation needs, desires to utilize the
services of Broker to arrange for transportation of Shipper’s lading.
Broker and Shipper, intending to be legally bound, agree to the following terms
and conditions (Terms) that will apply for all shipments Broker arranges for
Shipper. Only Broker employees or officers with the title of Director or higher
have authority to modify, alter, or suspend these terms. By using Broker’s
services, Shipper agrees to these Terms.
1. Service. Broker agrees to arrange for transportation by Motor Carrier of
Shipper’s lading pursuant to these Terms in all material respects with all
federal, state and local laws and regulations relating to brokerage of the
freight transportation arranged under these Terms. Broker’s responsibility
under these Terms shall be limited to arranging for, but not actually
performing, transportation of Shipper’s lading.
2. No Exclusivity. Shipper is not restricted from tendering cargo to other
brokers, or directly to other transportation providers. Broker is not
restricted from arranging transportation for other persons or entities.
3. FREIGHT CARRIAGE. BROKER warrants that it has entered into, or will enter
into, bilateral contracts with each Motor Carrier it utilizes in the
performance of these Terms. BROKER further warrants that those contracts
comply with all applicable federal and state regulations and shall include
the following provisions:
1. Motor Carrier’s Indemnification. The contract will contain the agreement
of the Motor Carrier to defend, indemnify and hold Shipper harmless from
all damages, claims or losses (other than cargo loss or damage which the
Broker will address with the Motor Carrier consistent with Section 8A)
caused by and resulting from (i) any negligence or intentional
misconduct by the Motor Carrier or its employees or agents or (ii) the
Motor Carriers or its employees’ or agents’ violation of applicable law
or regulation.
2. Motor Carrier Insurance. The contract shall contain the agreement of the
Motor Carrier to monitor at all times during the term of the contract
insurance coverage with limits not less than the following and to
provide certificates of insurance to Broker verifying the following
coverage:
Comprehensive General Liability (including contractual liability)
$1,000,000 (minimum) Comprehensive Automobile/Truckers Liability
(including UIIA and trailer interchange endorsements) $1,000,000
(minimum) Cargo Insurance $100,000 (minimum)
3. Brokers’ Liability to the Motor Carrier for Linehaul Charges. The
contract shall authorize Broker to invoice Shipper for services provided
by the Motor Carrier and declare that (i) Broker is the sole party
responsible for payment of the Motor Carrier’s invoices, and (ii) the
Motor Carrier will not seek payment from Shipper or its consignee or
consignor.
4. Motor Carriers’ Safety Rating. The contract will prohibit the Motor
Carrier, during the term of its contract with Broker, from having an
“unsatisfactory” or a “conditional” safety rating as determined by the
FMCSA. If the Motor Carrier receives an “unsatisfactory” or a
“conditional” safety rating, it is required to immediately notify
Broker. Broker shall not knowingly utilize any Motor Carrier with an
“unsatisfactory” or a “conditional” safety rating in the performance of
these Terms.
5. Subordination of Motor Carrier’s Tariff. The contract will state that
the contract terms and conditions shall apply on all shipments the Motor
Carrier handles for Broker. Any terms in any rules, classifications,
conditions of service or tariffs that are referenced in the contract
between Broker and the Motor Carrier that are inconsistent with such
contract shall be subordinate to the terms of the contract.
6. Carmack Amendment. The contract shall provide that the transportation
provided by the Motor Carrier shall be contract carriage as defined in
49 U.S.C. § 13102(4)(B), and accordingly pursuant to 49 U.S.C. §
14101(b).
7. Equipment. The contract shall require the Motor Carrier to provide safe,
operational equipment and not to supply any trailers or containers that
have been used to transport hazardous wastes (as defined in 40 CFR §
261), trash, or solid or liquid waste, whether or not defined as
hazardous wastes under as described in 40 CFR Part § 261. The
contractual obligation not to supply trailers or containers used to
transport such wastes shall be on a best efforts basis in circumstances
where such Motor Carrier does not own or lease (i.e., have control over)
the trailers or containers.
8. CARB. The contract will provide that if Motor Carrier operates in
California, Motor Carrier warrants that it is in full compliance with
all requirements of the California Air Resources Board (“CARB”) for all
equipment, including motor vehicles and Transport Refrigeration Units
(TRU). Motor Carrier will supply any certificates issued by CARB for
Equipment Registration (ARBER). Motor Carrier will defend and indemnify
BROKER for all claims, costs, expenses, penalties, and damages,
including for reasonable attorney’s fees, incurred by BROKER as a result
of Motor Carrier non-compliance with CARB regulations.
9. FOOD. The contract will provide the following with respect to food
shipments:
1. 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
hereunder 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, and that none of the equipment so
provided has been or will be used for the transportation of any waste
of any kind, garbage, hazardous materials, poisons, pesticides,
herbicides, or any other commodity that might adulterate or
contaminate food, food products or cosmetics.
2. Carrier must ensure that all personnel transporting or handling
freight subject to the Food Safety Modernization Act of 2011 and its
implementing regulations (collectively the “Act”), receive training
required by the Act. Broker will transmit to Carrier, on the Load
Confirmation or separately by email, the shipper’s or consignee’s
protocols and requirements for transporting food shipments subject to
the Act. Carrier must strictly comply with all such protocols and
requirements. Carrier’s failure to comply with such protocols and
requirements will permit the consignor, consignee, or broker to
declare any freight transported on a shipment on which non-compliance
occurred to be rejected and a total loss. In the event Broker does
not transmit protocols and requirements, Carrier must request such
protocols and requirements before transporting freight.
4. Receipts and Bills of Lading. If requested by Shipper, Broker may provide
Shipper with proof of acceptance and delivery of such loads in the form of
a signed Bill of Lading or Proof of Delivery. Either Party, at its option,
may supply any document required by or referenced in these Terms in either
paper or electronic form (including, but not limited to, an electronically
imaged, faxed, photocopied, or online posted version), and any such version
shall be sufficient for all purposes under these Terms. Shipper is
prohibited from inserting Broker’s name on the BOL because Broker is not
the Motor Carrier. If the Shipper inserts Broker’s name on the bill of
lading, that is done solely for the Shipper’s convenience only and shall
not change Broker’s status as a property Broker. The terms and conditions
of any documentation used by Shipper, Broker or a Motor Carrier selected by
Broker shall not be effective to the extent of any inconsistency with these
Terms.
5. Rates and Payments. Broker shall invoice Shipper for its services in
accordance with the previously agreed upon rates and charges. Such rates
and charges shall be considered “written,” and shall be binding, upon
Broker’s invoice to Shipper and Shipper’s payment to Broker.
1. Shipper shall pay Broker net thirty (30) days on Shipper’s receipt of
Broker’s invoice. Broker’s invoice will provide shipment date, invoice
reference number, all applicable Shipper reference numbers, the amounts
calculated in accordance with these Terms, and bill of lading copy. No
offsets may be taken against invoiced charges. Broker shall apply
Shipper’s payment to the amount due for the specified invoice,
regardless whether there are earlier unpaid invoices. Broker may not
assess service charges for any delayed payments.
2. Broker will pay its carriers per the terms of its agreements with
Carrier.
3. If Broker alleges undercharges, or Shipper alleges overcharges,
duplicate payment, or over-collection, notice of such claims or
unidentified payments must be given within twelve (12) months of receipt
of the invoice and a civil action or arbitration proceeding must be
filed within eighteen (18) months of delivery or tender of delivery of
the shipments involved.
6. Shipper’s Obligations.
1. Shipping Instructions. Shipper will provide necessary shipping
instructions and will properly identify all cargo and its actual value
in the bill of lading or other shipping instructions provided to Broker.
Shipper will not tender any commodities restricted under Circulars,
including but not limited to hazardous materials and waste; shipments
valued more than the cargo insurance limits in Section 4B; oversize or
overweight shipments; coiled or rolled products and commodities
requiring protection from heat or cold, without properly identifying
such shipments and making necessary prior arrangements for
transportation thereof.
2. Food Safety Modernization Act (FSMA). Any required documents to be
compliant with the FSMA shall be provided by Shipper to Broker when the
shipment is tendered to Broker. Broker will relay those documents to the
Motor Carrier per the FSMA. If Shipper fails to comply with this
subsection, Shipper will defend, indemnify, and hold Broker and motor
carrier harmless from all fines, penalties, claims, liability, and
damages, including reasonable attorney’s fees and costs of defense as
they are incurred.
3. Count, Load and Seal. Unless Shipper has requested Broker to arrange for
the Motor Carrier to provide driver count services before dispatch and
the Broker performs such driver count services, Shipper is responsible
for causing all contents of shipments moving under these Terms to be
properly counted and recorded and to have a protective seal applied to
the loaded equipment.
4. Inspection of Equipment. Shipper will cause all empty containers or
trailers tendered for loading to be inspected before loading and to
reject any equipment that is not in apparent suitable condition to
protect and preserve the cargo during transportation. Shipper will
promptly notify Broker of any rejected equipment.
5. Use of Equipment. If Shipper requests that Broker arrange for Intermodal
Equipment to be dropped at a location for Shipper’s convenience and left
unattended by the Motor Carrier, Shipper and its consignors or
consignees will not lose, damage or misuse the Intermodal Equipment and
Shipper will pay for loss or damage to the Intermodal Equipment
occurring during or as a result of such possession or use of the
Intermodal Equipment if caused by Shipper or its consignees or consignor
or their agents or employees.
7. Provisions Regarding Handling of Cargo and Cargo Loss and Damage.
1. Liability of the Brokers. Broker will select only Motor Carriers, in the
transportation of cargo hereunder in the United States and Canada, that
agree (1) to assume the liability of a common Motor Carrier for full
actual loss of cargo, subject to the provisions of the 49 U.S.C. 14706
(or successor regulation to such Carmack Amendment), up to a maximum
liability of $100,000 per container or trailer. Motor Carriers will
agree to process and pay cargo claims in accordance with and subject to
49 CFR §1005 and 370, respectively. The Motor Carriers cargo liability
for any one shipment shall not exceed the amounts described above,
unless Broker is notified by Shipper of the increased value prior to
shipment pickup and with reasonable advance notice and Broker and/or the
Motor Carrier have accepted the increased liability and procured the
additional insurance coverage. Cargo liability on shipments in or out of
Mexico, are strictly limited to that portion of the transportation
service performed in the United States.
2. Cargo Liability of Broker. It is understood and agreed that Broker is
not a Motor Carrier or freight forwarder, and Broker shall not be held
liable for loss, damage or delay in the transportation of Shipper's
cargo unless caused by Broker’s negligent acts or omissions in the
performance of these Terms or by Broker’s breach of these Terms. Broker
shall facilitate the filing and/or processing of claims with the
applicable Motor Carrier. Shipper shall assist Broker in the handling of
claims by providing notice of the claim and all relevant documentation
to Broker in time sufficient to allow Broker to adequately present such
claims within the time limits required by law or contract. If Broker
elects to pay a claim to Shipper, Shipper shall assign its rights and
interest in the claim to Broker in writing in a form reasonably
satisfactory to Broker so as to allow Broker to subrogate the loss.
3. Defenses. Neither Broker (to the extent it is otherwise liable) nor the
Motor Carrier will be liable for the following: (1) damage to cargo to
the extent due to packaging, loading, unloading, blocking, bracing or
securing of the cargo (unless the Motor Carrier has provided loading or
unloading services at Shipper’s request, in which case such Motor
Carrier (but not Broker) may be liable for cargo damage caused by such
loading or unloading services); (2) inherent vice or defect in the cargo
transported, including, without limitation, rusting of metals, swelling
of wood caused by humidity, moisture or condensation, or deterioration
of perishable products; (3) act of God or the public enemy; (4) an act
or default of any Shipper, consignor, consignee or beneficial owner of
the cargo; (5) act of a public authority; or (6) any other defense
recognized by statute or common law to broker or carrier liability for
cargo loss or damage claims.
4. Disclaimer of Liability for Certain Types of Damages. In no event shall
Broker or the Motor Carrier be liable to Shipper or anyone else for
special, incidental, or consequential damages that relate to loss,
damage or delay to a shipment, unless Shipper has informed Broker in
written or electronic form, prior to or when tendering a shipment or
series of shipments to Broker, of the potential nature, type and
approximate value of such damages, and Broker specifically agrees in
written or electronic form to accept responsibility for such damages. In
no event shall Broker or the Motor Carrier be liable to Shipper or
anyone else for punitive or exemplary damages that relate to loss,
damage or delay to a shipment.
5. Notification. If a shipment arrives with visible or obvious damage or
loss of cargo, Shipper will note such damage on delivery paperwork and
notify Broker telephonically or in writing advising Broker of the nature
and extent of the loss or damage. The Broker may consider Shipper to
have waived and released the claim if there is a failure to provide
notification. Shipper and its consignee must preserve and make available
to Broker’s or the Broker’s inspectors all damaged cargo, all cargo
received in good condition and all packaging, blocking, bracing and
security devices to assist the inspectors in determining the cause of
the damage or loss. Concealed damages must be reported to Broker within
five (5) days of delivery.
6. Time Limits To File Cargo Claims and Commence Recovery Action. Shipper
may proceed with any claim for cargo loss or damage by filing the claim
with the Broker or directly with the applicable Motor Carrier, and
Broker facilitate the processing of Shipper’s claim by Motor Carrier.
Broker will provide assistance in recovering a cargo loss or damage from
the Motor Carrier on Shipper’s behalf. Shipper must (1) submit the claim
to Broker for damage or loss of cargo occurring during (i) motor
transportation, within eight (8) months of the delivery date or, for
lost shipments, of the expected delivery date. For cargo claims for
which Broker is directly liable under these Terms, as a condition
precedent to recovery, Shipper must submit the claim to Broker for
damage or loss of cargo within eight (8) months of the delivery date or,
for lost shipments, of the expected delivery date and, if the claim is
not voluntarily paid, must commence civil action against Broker to
recover on a claim for damage or loss of cargo occurring during (i)
motor transportation, within twenty-three (23) months from date of the
first disallowance in writing of all or any portion of the claim. After
expiration of these time periods, Broker will have no responsibility to
assist Shipper against the Motor Carrier or any liability for the cargo
loss or damage or payment or processing of the claim.
7. Sealed Shipment. If Shipper loads and seals the cargo in or on the
equipment and the Motor Carrier does not have the opportunity to count
the cargo being loaded and the seal is intact upon delivery, then Broker
and the Motor Carrier shall be absolved from any liability for shortages
or any damage to the cargo except when proximately caused by independent
action of Motor Carrier or the Broker. Such absolution of liability will
also occur if (i) the seal is broken at the direction and under the
supervision of an agent of a governmental authority, or (ii) the
Equipment is preloaded and the Motor Carrier’s representative cannot
practically determine the adequacy of loading or count of the cargo in
or on such Equipment. Broker will direct the Motor Carrier to request
any governmental authority that breaks a seal in connection with an
inspection to reseal the trailer or container and/or make appropriate
notation on the cargo documentation form. Shipper agrees that the Motor
Carrier engaged by Broker may break the seal on a trailer or container
if, upon its determination, it becomes reasonably necessary to do so to
inspect, reposition, or protect the cargo or the transportation
equipment or to comply with federal, state, municipal, or provincial
laws, rules, and regulations.
8. Insurance. Broker agrees to procure and maintain at its own expense and at
all times the following minimum insurance coverage amounts:
1. General Liability insurance $1,000,000 (minimum) (including contractual
liability)
2. Cargo Insurance $100,000
3. Workers Compensation Statutory Limits
Upon request Broker shall submit to
4. Shipper a certificate of insurance as evidence of such coverage and
which names Shipper as “Certificate Holder”
9. Hazardous Materials. Shipper, Broker, and Motor Carrier shall comply with
all applicable laws and regulations relating to the transportation of
hazardous materials as defined in 49 CFR §172.101 (or any successor
regulation) to the extent that any shipments constitute hazardous
materials. Shipper is obligated to inform Broker immediately if any such
shipments do constitute hazardous materials. Shipper shall defend,
indemnify and hold Broker and Motor Carrier harmless from any penalties or
liability of any kind, including, without limitation, reasonable legal
fees, arising out of Shipper’s failure to comply with applicable hazardous
materials laws and regulations.
10. Indemnification.
1. Except for cargo loss, damage or delay which shall be governed solely by
Section 8, Broker shall defend, indemnify and hold Shipper and Shipper’s
employees and agents harmless, up to the dollar amounts set forth in
Section 8, against any claims, liabilities, losses, damages, fines,
penalties, payments, costs, and expenses (including, without limitation,
reasonable legal fees) (collectively, “Losses”) caused by or resulting
from (i) Broker’s or Motor Carrier’s employees’ or agents’ negligence or
intentional misconduct, (ii) its breach of these Terms, including but
not limited to any failure to secure the agreement of the Motor Carrier
(or any re-Broker) to the requirements set forth in Section 4 hereof, or
(iii) Broker’s or Motor Carrier’s employees’ or agents’ negligent or
intentional violation of applicable laws or regulations.
2. Shipper shall defend, indemnify and hold Broker and Motor Carrier’s
employees or agents (which term shall include any Motor Carrier engaged
by Broker) harmless against any Losses caused by or resulting from (i)
Shippers or Shipper’s employees’ or agents’ negligence or intentional
misconduct, (ii) Shipper’s breach of these Terms, or (iii) Shipper’s or
Shipper’s employees’ or agents’ violation of applicable laws or
regulations.
3. In the event such claims, liabilities, losses, damages, fines,
penalties, payments, costs, and expenses (including, without limitation,
reasonable legal fees) are caused by the joint and concurrent negligence
of the Parties, or the Parties and a third party, the indemnity
obligations for such claims, liabilities, losses, damages, fines,
penalties, payments, costs, and expenses (including, without limitation,
reasonable legal fees) shall be borne by each Party in proportion to its
degree of fault. Although Section 8 only imposes insurance requirements
upon Broker, for purposes of this Section 11, those dollar amounts also
shall limit the scope of Shipper’s indemnification obligations as well
as Broker’s indemnification obligations. The obligation to defend shall
include all reasonable costs of defense as they accrue. Any person or
entity indemnified under these Terms shall promptly tender the defense
of any claim to the indemnifying Party. Neither party will offer
settlement in any such claim without the agreement of the other party
(which agreement shall not be unreasonably withheld or delayed) unless
the settlement would not impose any obligations or liability on such
other party.
11. Modifications of Agreement; Re-Brokering.
1. These Terms shall be binding upon and inure to the benefit of the
Parties hereto and their respective successors and assigns. No amendment
or modification of these Terms shall be binding unless in writing and
signed by the Parties.
2. Broker shall not utilize the services of any other broker ("Re-Broker")
to arrange for the transportation services contemplated herein without
Shipper’s consent. If Broker does utilize the services of a re-broker,
Broker will be responsible for all obligations hereunder to the same
extent that Broker would be liable if it performed the transportation
and related services itself.
12. Severability / Survivability. If the operation of any portion of these
Terms is found by a court of competent jurisdiction to be invalid or
unenforceable, the Parties agree that such portion or provision shall be
severable and that the remaining provisions of the Terms shall continue in
full force and effect.
13. Independent Contractor. It is understood between Broker and Shipper that
Broker is not an agent for the Motor Carrier or Shipper and shall remain at
all times an independent contractor. Shipper does not exercise or retain
any control or supervision over Broker, its operations, employees, or the
Motor Carriers.
14. Nonwaiver. Failure of either Party to insist upon performance of any of the
terms, conditions or provisions of these Terms, or to exercise any right or
privilege herein, or the waiver of any breach of any of the terms,
conditions or provisions of these Terms, shall not be construed as
thereafter waiving any such terms, conditions, provisions, rights or
privileges, but the same shall continue and remain in full force and effect
as if no forbearance or waiver had occurred. No waiver of any right, power,
or privilege hereunder shall be binding upon any Party unless in writing
and signed by or on behalf of the Party against which the waiver is
asserted.
15. Notices. All notices under these Terms will be in writing and will be
deemed to be sufficient if (a) delivered personally, (b) sent by facsimile
or e-mail transmission if confirmed by notice sent by one of the other
notice methods permitted hereunder, (c) sent by nationally-recognized,
overnight courier guaranteeing next business day delivery, or (d) mailed by
registered or certified mail (return receipt requested), postage prepaid,
to the Parties.
1. All such notices and other communications will be deemed to have been
given and received (a) in the case of personal delivery, on the date of
such delivery, (b) in the case of facsimile or e-mail transmission that
is confirmed by notice sent on the same day by one of the other methods
permitted hereunder, on the date of transmission if sent on a business
day, (or if sent on other than a business day, on the next business day
after the date sent), (c) in the case of delivery by
nationally-recognized, overnight courier, on the business day following
dispatch if sent by guaranteed next day delivery, or (d) in the case of
mailing, on the third business day following such mailing.
16. Force Majeure. If performance by one Party is affected by any condition
beyond the reasonable control of such Party, including without limitation,
fire, labor strife, riot, war, weather conditions, acts of the public
enemy, acts of God, acts of terrorism, local or national disruptions to
transportation networks or operations, material equipment repairs, fuel
shortages, governmental regulations, or governmental request or requisition
for national defense, and provided that the applicable condition is not
attributable to the acts or omissions of such Party, and such Party is
taking reasonable measures to remove or mitigate the effects of the
applicable condition, then the performance of obligations under these Terms
(other than Shipper’s obligation to pay for services performed) affected by
such condition shall be suspended during the continuance of such condition,
and such Party shall promptly notify the other Party of such condition.
Such period of suspension shall not in any way invalidate these Terms, but
on resumption of operations, any affected performance by such Party shall
be resumed. The Motor Carriers engaged by Broker shall be permitted an
extension period equal to the period of suspension to complete shipments
adversely affected by the suspension. Neither Party will incur any
liability for damages resulting from such suspensions.
17. Choice of Law. All questions concerning the construction, interpretation,
validity and enforceability of these Terms, whether in a court of law or in
arbitration, shall be governed by and construed and enforced in accordance
with the laws of the State of Minnesota, without giving effect to any
choice or conflict of law provision or rule that would cause the laws of
any other jurisdiction to apply.
18. Confidentiality.
1. Publicity. Broker shall not utilize Shipper’s name or identity in any
advertising or promotional communications without Shipper’s written
consent.
Confidentiality. The Parties shall not publish, use or disclose the contents or
existence of these Terms except (1) as necessary to conduct their operations
pursuant to these Terms, (2) to the extent required by a governmental agency,
under a court order or as otherwise required by law, provided that the receiving
Party has notified the other Party of such governmental or court action before
disclosing the Information, (3) to obtain financing, or (4) to auditors retained
for the purpose of assessing the accuracy of freight bills or similar purposes.
Broker will require its Motor Carriers to comply with this confidentiality
clause. These confidentiality obligations will not prohibit or limit the
receiving Party’s use of information (1) previously known to it and not subject
to any confidentiality restrictions, (2) acquired by it from a third party which
is not, to the receiving Party’s knowledge, under an obligation not to disclose
such information, or (3) which is or becomes publicly available through no
breach of these obligations by the receiving Party or its employees or agents of
these confidentiality obligations.
ATS Logistics Services, Inc., dba Sureway Transportation Company, is a
full-service transportation brokerage and subsidiary of Anderson Trucking
Service, Inc.
COMMON ISSUES WITH SHIPPER-BROKER CONTRACT AGREEMENTS [AND HOW TO AVOID THEM]
Read The Article >
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St. Cloud, MN 56301
1-800-633-8287
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