BROKER/CO-BROKER INTERMODAL TRANSPORTATION AGREEMENT

Transcription

1 BROKER/CO-BROKER INTERMODAL TRANSPORTATION AGREEMENT THIS BROKER/CO-BROKER INTERMODAL TRANSPORTATION AGREEMENT ( Agreement ) is made and intended to be effective this day of, 20 by and between, having offices at ( Broker ) and Streamline, LLC, having offices at 222 S. 15 th Street Omaha, Nebraska ( Co-Broker ). Broker and Co-Broker are sometimes individually referred to herein as a Party and together as the Parties. RECITALS A. WHEREAS Streamline is licensed as a property broker by the Federal Motor Carrier Safety Administration ( FMCSA ) in Docket Number MC As a licensed broker, Streamline arranges for intermodal freight transportation by rail and motor carrier. A copy of Streamline s authority is attached as Appendix A and a copy of Streamline s Surety Bond agreement is attached as Appendix B; and B. WHEREAS Broker, to satisfy some of its transportation needs, desires to utilize the services of Streamline to arrange for transportation of freight for Broker (or Broker s customer (described herein as Shipper )). NOW THEREFORE, for and in consideration of the foregoing premises and the mutual agreements and provisions set forth in this Agreement, Broker and Streamline, intending to be legally bound, agree as follows: AGREEMENT 1. Term: The term of this Agreement shall be for a one (1) year period, commencing on the date first mentioned above, and shall automatically renew for successive one (1) year periods; provided, however, that either Party may terminate this Agreement at any time on thirty (30) days written notice to the other Party, with or without cause, or as otherwise provided in this Agreement. 2. Service: Streamline agrees to arrange for intermodal transportation by rail carriers and local transportation by motor carriers ( Motor Carriers and collectively with Rail Carriers, Carriers and each a Carrier ) of Shipper s lading pursuant to the terms and conditions of this Agreement and in compliance in all material respects with all federal, state and local laws and regulations relating to freight transportation arranged under this Agreement. Streamline s responsibility under this Agreement shall be limited to arranging for, but not actually performing, transportation of Shipper s lading. 3. Freight Carriage: When Streamline arranges for transportation with a Motor Carrier, Streamline warrants in each instance (1) Motor Carrier is properly registered with the FMCSA as a motor contract carrier, (2) Motor Carrier has procured and maintained insurance coverage with a minimum $100,000 of cargo insurance, (3) Motor Carrier does not have a conditional or unsatisfactory FMCSA safety rating, and (4) Streamline has a valid contract with the Carrier embracing all usual terms and conditions applicable for such a contract, including, but not limited, to a provision or provisions providing that in the transportation of goods brokered by Streamline, Motor Carrier shall assume liability for the actual loss or damage to the Shipper s goods from the time of receipt by Motor Carrier until proper delivery has been made. 4. No Exclusivity: There is no commitment to ship a minimum volume of freight contemplated by Broker under terms of this Agreement. Broker is not restricted from tendering cargo to other brokers, or directly to motor or rail carriers. Streamline is not restricted from arranging transportation for other brokers, persons or entities.

2 5. Receipts and Bills of Lading: If requested by Broker, Streamline will provide Broker with proof of acceptance and delivery of such loads in the form of a signed Bill of Lading and/or Proof of Delivery, as specified by Broker, in electronic form. Shipper s insertion of Broker s name on the bill of lading shall be for Shipper s convenience only and shall not change Broker s status as a property broker. 6. Payments For Services: Broker warrants that it is authorized to invoice freight charges to Shipper, consignee, or third parties responsible for payment. Streamline shall invoice Broker for Streamline s services in accordance with the rates, charges and provisions that are mutually agreed to between the Parties. Streamline shall not seek to collect transportation charges from Shipper or any other party involved with the shipment. The Parties agree that Broker is the sole party responsible for payment of Streamline s charges. Failure of Broker to collect payment from the Shipper shall not exonerate Broker of its obligation to pay Streamline. Broker agrees to pay Streamline s invoice within fifteen (15) business days of receipt of the bill of lading or proof of delivery, provided Streamline is not in default under the terms of this Agreement. If Broker has not paid or disputed Streamline s invoice as agreed and Streamline has complied with the terms of this Agreement, Streamline may seek payment from the Shipper or other party responsible for payment after giving Broker ten (10) business days advance written notice. Streamline shall not seek payment from Shipper if Shipper can prove payment to Broker. Any other disputes are subject to the terms of Item 18, which provides in part that prevailing parties are entitled to recovery of costs, expenses and reasonable attorney fees. 7. Shippers/Broker Obligations: A. Loading: Unless Shipper or Broker has requested Streamline to arrange for the Motor Carrier to provide loading services before dispatch, Shipper will be responsible for ensuring that cargo is properly and safely loaded and securely sealed. B. Shipping Instructions: Shipper or Broker will provide necessary shipping instructions and will properly identify all cargo in the bill of lading or other shipping instructions provided to Streamline. 8. Cargo Liability of Streamline: It is understood and agreed that Streamline is not a carrier or freight forwarder, and Streamline shall not be held liable for loss, damage or delay in the transportation of Shipper's cargo unless caused by Streamline s negligent acts or omissions in the performance of this Agreement or by Streamline s breach of the terms of this Agreement Streamline agrees to assist Broker or Shipper in the filing and/or processing of claims with the applicable Carriers. Broker and/or Shipper shall assist Streamline in the handling of claims by providing notice of the claim and all relevant documentation to Streamline in time sufficient to allow Streamline to adequately present such claims within the time limits required by law or contract. 9. Disclaimer of Liability for Certain Types of Damages: In no event shall Streamline be liable to Shipper or anyone else for indirect, special, incidental, or consequential damages that relate to loss, damage or delay to a shipment, unless Shipper or Broker has informed Streamline in written or electronic form, prior to or when tendering a shipment to Streamline, of the potential nature, type and approximate value of such damages, and Streamline specifically agrees in written or electronic form to accept responsibility for such damages. 10. Insurance: Streamline agrees to procure and maintain at its own expense, at all times during the term of this Agreement, the following minimum insurance coverage amounts: A. Comprehensive liability insurance (including contractual liability): $1,000,000 B. Contingent Cargo Insurance $250,000

3 If requested, Streamline shall submit to Broker a certificate of insurance as evidence of such coverage and which names Broker as Certificate Holder. 11. Surety Bond: Streamline shall maintain a surety bond or trust fund agreement as required by the FMCSA in the amount of $10,000 and furnish Broker with proof of same upon written request. 12. Indemnification: Each party shall defend, indemnify, and hold the other harmless from and against all loss, liability, damage, claim, fine, cost or expense, including reasonable attorney s fees, arising out of or in any way related to the acts or omissions of the party, its agents, contractors, or employees under this Agreement, including but not limited to any breach of the warranties set forth in Item 3 above. If Broker provides contingent cargo coverage, and if a cargo loss, damage, or delay claim, or any portion is excluded from such coverage for any reason, Streamline shall defend, indemnify, and hold Broker harmless with respect to any excluded amount. 13. Relationship: The relationship of Broker and Streamline is, and shall at all times remain, that of an independent contractor, each to the other. 14. Re-brokering: Streamline shall not utilize the services of any other rail intermodal broker ("Re- Broker") to arrange for the transportation services contemplated herein without Broker or Shipper s prior consent. 15. Agreement: This Agreement is the entire agreement between the parties, superceding all earlier agreements. It cannot be altered or amended except in a writing signed by both of them. It may not be assigned or transferred in whole or in part. If the operation of any part of this Agreement results in a violation of any law, such part shall be severed and the Agreement s remaining provisions shall continue in full force and effect. 16. Back Solicitation: Streamline agrees to refrain from solicitation of Broker accounts and to refrain from handling any direct freight movement by door-to-door Intermodal rail transportation which had previously been handled under this agreement, for a period of 12 months from the date of expiration or termination of this Agreement. 17. Notices. All notices provided or required by this Agreement, shall be made in writing and delivered, return receipt requested, or via overnight courier, to the addresses shown herein with postage prepaid; or by confirmed (electronically acknowledged on paper) fax. The Parties shall promptly notify each other of any claim that is asserted against either of them by anyone arising out of the Parties performance of this Agreement. TO: STREAMLINE LLC. Name: Mrs. Kari Kirchhoefer Title: AVP Streamline LLC Address 222 South 15 th Street, Ste 402-S City/State/Zip: Omaha, Ne Phone No: Fax No: KAKIRCHH@UP.COM TO: BROKER: Name: Title: Broker: Address: City/State/Zip: Phone No: Fax No: Disputes: In the event of a dispute arising out of this Agreement, including but not limited to Federal or State statutory claims, the Party's sole recourse (except as provided below) shall be to arbitration. Proceedings shall be conducted under the rules of the American Arbitration Association (AAA). Arbitration proceedings shall be started within twelve (12) months from the date of delivery or

4 scheduled date of delivery of the freight, whichever is later. Upon agreement of the Parties, arbitration proceedings may be conducted outside of the administrative control of the AAA. The decision of the arbitrators shall be binding and final and the award of the arbitrator may be entered as judgment in any court of competent jurisdiction. The prevailing party shall be entitled to recovery of costs, expenses and reasonable attorney fees as well as those incurred in any action for injunctive relief, or in the event further legal action is taken to enforce the award of arbitrators. Arbitration proceedings shall be conducted at the office of the AAA nearest Omaha, Nebraska or such other place as mutually agreed upon in writing or directed by the acting arbitration association. 19. Confidentiality. In addition to Confidential Information protected by law, statutory or otherwise, the Parties agree that all of their financial information and that of their Shippers, including but not limited to freight and brokerage rates, amounts received for brokerage services, amounts of freight charges collected, freight volume requirements, as well as personal customer information, customer shipping or other logistics requirements shared or learned between the Parties and their customers, shall be treated as Confidential, and shall not be disclosed or used for any reason without prior written consent. IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed in their respective names by their fully-authorized representatives as of the dates first above written. (Broker) STREAMLINE LLC By: Name: Title: Date: By: Name: Title: Date:

5

6

7

8

9

10

11

12 Please return the signed application and executed attachments to Streamline's Finance Group via fax, (402) , or via , within one week of tendering your first load. Thank you for your business. Streamline 222 S 15TH ST STE 402S Omaha, NE (800) x 3 fax (402) Dear Valued Customer: Thank you for choosing Streamline as your intermodal service partner. In order to facilitate this partnership, we are sending the attached credit agreement for your approval and extending an initial line of credit to allow you to tender new business. In lieu of submitting financial information Streamline offers a favorable line of credit for partners who pay via ACH debit when an invoice reaches credit terms. ACH debit is an easy and dependable method of payment. ACH debit allows our bank and your bank to exchange funds electronically according to a schedule agreeable to both partners. For your company to participate in the ACH debit program please fill out the authorization agreement and return with your signed credit agreement. This agreement also ensures that Streamline has the correct information on file for your company. Without a signed agreement, we cannot extend credit beyond the initial level.

13 Streamline 222 S 15TH ST STE 402S Omaha, NE (800) x 3 fax (402) Dear Valued Customer: Thank you for choosing Streamline as your intermodal service partner. In order to facilitate this partnership, we are sending the attached credit agreement for your approval and extending an initial line of credit to allow you to tender new business. In lieu of submitting financial information Streamline offers a favorable line of credit for partners who pay via ACH debit when an invoice reaches credit terms. ACH debit is an easy and dependable method of payment. ACH debit allows our bank and your bank to exchange funds electronically according to a schedule agreeable to both partners. For your company to participate in the ACH debit program please fill out the authorization agreement and return with your signed credit agreement. This agreement also ensures that Streamline has the correct information on file for your company. Without a signed agreement, we cannot extend credit beyond the initial level. Please return the signed application and executed attachments to Streamline's Finance Group via fax, (402) , or via , StreamlineFinance@UP.com within one week of tendering your first load. Thank you for your business. Respectfully, Streamline - Finance

14 STREAMLINE APPLICATION AND CREDIT AGREEMENT Customer Requesting Credit (Use Complete Legal Name) Telephone Number Headquarters Address (For Notice Purposes) Billing Address If Different From Above City State Zip Duns Number Of Customer ( ) Corporation ( ) Partnership ( ) Proprietorship ( ) Other Duns Number Of Parent Primary Commodity To Be Shipped Type Or Nature Of Business State Of Incorporation Date Customer Established Name And Title Of Principal Officer, Partner, Or Proprietor Name And Title Of Contact Concerning Credit Issues Telephone Address Bank Reference - Include City, State, Zip, Telephone, Name Of Contact In submitting this application, Customer agrees to the following: Credit Amount Expected Per Week To pay all undisputed charges billed by Streamline, LLC, hereinafter called Streamline, so that payment in full is received by Streamline within 15 days of the invoice date. Streamline may at its discretion, suspend the Customer s Credit, and either party may cancel this Credit Agreement at any time for any reason, upon notice to the other party. Notice may be written, electronic, or oral if confirmed in writing or electronically, at the place of business noted herein. Customer represents that the information submitted (see attached financial form) by it is accurate and, upon periodic request, will update such information and provide additional information and/or financial statements as Streamline may reasonably request. All financial statements are strictly confidential. Failure to make timely payments to Streamline or its subsidiaries may result in the cancellation of any credit extended or/and the application of finance charges. Streamline may assess a late payment finance charge on any freight transportation charges paid delinquently, at a rate of twelve percent (12%) per year (or, to the extent the rate of such charge is not preempted by federal law and such rate exceeds the maximum rate permitted by applicable law.) Payments shall be deemed delinquent when not made within the credit period. The late payment finance charge shall be assessed for each day beyond the credit period that payment is made This Credit Agreement supersedes any and all other expressed or implied contracts with regards to credit terms, and contains the entire understanding of the parties, has been executed by their duly authorized officers, and may only be waived or modified by a written amendment. Accepted and Agreed Streamline Customer By Date By Date Print Name Print Name Title Title Streamline 222 S 15th St Ste 402S, Omaha, NE Phone (402) Fax (402)

15 AUTHORIZATION AGREEMENT FOR DIRECT PAYMENTS (ACH DEBITS) Customer Name: ( Customer ) hereby authorizes Streamline, LLC, hereinafter called Streamline, to initiate debit entries to its (select one) Checking Account Savings Account indicated below at the depository financial institution named below, hereafter called Depository, and to debit the same to such account. Customer acknowledges that the origination of ACH transactions to its account must comply with the provisions of U.S. law. Depository Name: Branch: City: State: Zip: Routing No.: Account No.: This authorization is to remain in full force and effect until Streamline has received written confirmation from Customer of its termination in such time and in such manner as to afford Customer and Streamline a reasonable opportunity to act on it. BY: NAME: TITLE: DATE:

16 ACH Debit Q&A What is ACH? ACH payments are an electronic method for transferring funds between financial institutions. Unlike a check, an ACH transaction may be either a debt or credit. Clearing is provided electronically rather than through the physical movement of checks or cash. Why is Streamline moving to ACH debit? Streamline is offering an ACH debit option to its customer as a convenience to enhance their current ACH capabilities within the Account on the Web (AOW) system. When will the ACH draws take place? Initiation of ACH draws will take place on the due date for a given invoice. If the due date falls on a day that is not a business day the initiation of the draw will happen on the next business day. How will customers know the ACH has been scheduled? Invoices will be moved to the scheduled tab in AOW two (2) business days prior to the ACH draw. How will the customer be able to obtain invoices and paperwork? All invoices and paperwork will be posted to AOW. Customers will be notified when invoices are posted to their account via . Will Streamline withdrawal funds on invoices that are disputed? Streamline will not withdrawal funds on disputed invoices. If the dispute is accepted a revised invoice will be posted to the customer s account and payment will be scheduled two day prior to the ACH draw. If the dispute is rejected, the customer will be notified of the rejected dispute and payment will be scheduled two days prior to the ACH draw. Can customers choose not to participate in ACH debit? New customers to Streamline must participate in the ACH debit program.

17 Late Payment Finance Charge Policy Q&A Why is Streamline implementing a finance charge on invoices paid past credit terms? Rates are established on the basis that invoices will be paid within the agreed upon credit terms. However, over the past several years, the percentage of invoices paid beyond these credit terms has increased. The late payment finance charge is intended to encourage adherence to credit terms. When does Streamline s new late payment policy go into effect? The new policy is effective for shipments tendered on or after September 1, How is the finance charge calculated? The finance charge will be assessed after payment of an invoice at an annual rate of 12% or % per day for each day the invoice was past due. The date an invoice is due is calculated as invoice date plus credit terms. The days past due will be calculated as due date minus the date funds were received by Streamline. How are the due dates for freight bills determined? The due date for an invoice is calculated from the date the invoice is issued. Will customers receive only one finance charge bill per month? Yes. A summary invoice for the total late payment finance charges for all invoices paid outside of credit terms will be issued each month. Along with the summary, we will also include the line item detail for each invoice paid beyond credit terms. What day of the month will the finance charge bill be issued? A late payment finance charge invoice will be issued by the 10th of the month. The invoice will cover all freight bills paid late during the prior month. If a customer uses a third party to pay freight bills, will they still be subject to a finance charge? Yes. The decision by a customer to use a third party does not eliminate the requirement for the payment to be made within the credit terms. The customer will be responsible for any finance charges that accrue due to the failure of the third party to process payments within Streamline credit terms. If a customer pays their bill through an electronic payment method, will they be subject to finance charges? Yes. Regardless of payment method, all payments made beyond credit terms are subject to the late payment finance charge. How do I dispute a freight bill? Claims and disputes should be made through the Account on the Web