BROKER-SHIPPER TERMS & CONDITIONS

 

Foothills Logistics(“FOOTHILLS”) holds authority from the U.S. Federal Motor Carrier Safety Administration (“FMCSA”), as a property broker under FMCSA License Number MC 727277 and is hereinafter referred to as “Broker.” Broker’s services for its customers (“Shipper(s)”) include, but are not limited to, arranging for the transportation of full truckload (“FTL”), less than truckload (“LTL”), and intermodal (via a combination of motor carrier and rail) transportation shipments for its Shippers by contracted motor carriers (“Carrier(s)”).

Broker and Shipper (also sometimes referred to individually as a “Party”, and collectively as the “Parties”) agree that their relationship with respect to shipments tendered to Broker by Shipper (their “Agreement”) shall be governed by the following terms and conditions:

1. Tender of Shipments. Shipper agrees to tender and/or cause to be tendered by Shipper on its own behalf and/or as agent for and on behalf of Shipper’s customer(s) one or more shipments to Broker for the purpose of having Broker arrange the transportation of the shipments by Carriers to be selected by Shipper and Broker agree that this Agreement does not restrict Shipper from tendering shipments to other property transportation brokers or directly to motor carriers.
2. Brokerage Services. For all shipments tendered by Shipper to Broker and accepted by Broker, Broker agrees to arrange for the pick-up, transport, and delivery of the shipments, as Shipper may reasonably request, exclusively by Carriers that hold the proper government authority to perform the requested service(s). In arranging transportation services for Shipper, Broker shall not be responsible for packaging, handling or loading of shipments – which shall instead be the responsibility of Shipper and/or the underlying Carrier selected by Broker to transport the Every shipment handled by Broker for or on behalf of Shipper while this Agreement is in effect will be deemed tendered to Broker under this Agreement. Broker has the sole right to select the Carriers used to perform the transportation services, and Broker is solely authorized to make the necessary transportation arrangements with regard to each shipment tendered by Shipper to Broker. In performing brokerage services for Shipper, Broker shall only select Carriers that meet the following criteria:
   1. FMCSA Authority. Carriers selected by Broker shall have and maintain proper and necessary authority from the FMCSA and any applicable state agency to perform transportation services in intrastate, interstate and/or foreign commerce.
   2. Broker shall only select a Carrier to transport a shipment if: (i) at the time the shipment is to be transported, the Carrier has a safety rating or determination from the U.S. Department of Transportation (“U.S. DOT”)/FMCSA that is either “Satisfactory,” “Unrated,” “None,” “Continue To Operate” or similar safety rating issued by the FMCSA, or (ii) the Carrier has an FMCSA safety rating or fitness determination of “Conditional” or the equivalent, but has furnished evidence satisfactory to Broker regarding corrective action taken by the Carrier to fully correct the safety deficiency(ies) which resulted in the Carrier receiving such rating. Broker shall only select a

 

 

Carrier to transport a shipment if the Carrier has agreed to perform transportation of the shipment in full compliance with all applicable safety laws and requirements.

 

1. Cargo Loss or Broker shall require that Carriers selected by Broker agree to be liable to Shipper for damages, including cargo loss or damage, as provided in Section 11 of this Agreement.
2. Shipment Schedules. Carriers selected by Broker shall be required to perform timely and reliable pick-up and delivery of all shipments in accordance with reasonable schedules communicated in writing by Shipper to Broker and/or Broker’s arranged Carriers providing the actual, physical transportation of such shipments.
3. CARB Compliance. To the extent that a shipment subject to this Agreement is transported within the State of California in refrigerated equipment, Broker shall require its selected Carrier to warrant to Broker and Shipper that the Carrier will only utilize equipment that is in full compliance with the California Ari Resources Board (“CARB”) Transport Refrigerated Unit (“TRU”) Airborne Toxic Control Measure (“ATCM”) in-use regulations. Such Carrier shall be liable to the Parties for any penalties or other liabilities imposed on them by the carrier’s use of non-compliant equipment.

3. Performance of Broker will arrange the dispatch and transport of each shipment tendered to it by Shipper promptly upon tender of the shipment by Shipper. Broker will provide Shipper with prompt notification by telephone or electronic communication when this obligation cannot be met for any reason. Broker will communicate to each Carrier that it engages to transport Shipper’s shipments any schedule for delivery provided by Shipper for a particular shipment. Broker will require that its selected Carriers perform the actual physical transportation of the shipment, and agree not to “double broker” such transportation to another motor carrier.
4. Independent Contractor. Broker’s relationship to Shipper is that of an independent contractor, not an agent or employee, and nothing in this Agreement shall be construed as establishing an employment relationship, partnership or joint venture between the parties. Broker shall make arrangements it deems appropriate for the transportation of shipments tendered by Shipper under this Agreement. Shipper is not and will not be responsible for any debts or obligations incurred by Broker in the performance of its business. Neither Party shall be liable for any obligation incurred by the other, except as is expressly provided in this Agreement.
5. Compensation to Broker and Payment Terms. Compensation for Broker’s services shall be paid by You to Broker for all shipments tendered by You to Broker in accordance with rates and/or charges agreed to by Broker and You through written agreement, email correspondence, facsimile transmission, text message, other electronic transmission or verbal communication. The payment terms applicable to You shall be those included on the Credit Application executed and delivered by You to Broker, or net thirty (30) days, whichever is later.
6. Bill of Lading and Receipt. Bills of Lading and Other Shipping Documents. Your insertion of Foothills Logistics’ name on any bill of lading or shipping document will be for Your convenience only and will not change Foothills Logistics’ status as a broker. The terms and conditions of any documentation used by You, any shipper, or a Carrier will not supplement, alter, or modify the terms of these Terms and Conditions, except as expressly provided herein.

 

 

7.       Cargo Liability.

1. Liability Limits. The Carrier arranged by Broker (and not Broker) shall have liability for cargo loss or damage. Except as otherwise provided in this Section 12 of this Agreement, recovery (as opposed to liability) for cargo loss or damage may be limited to a maximum of One Hundred Thousand Dollars and 00/100 ($100,000.00) per shipment or per consolidated shipments – unless insurance coverage for increased cargo value has been requested by Shipper, and Broker has advised Shipper in writing prior to tender of the shipment(s) that it has arranged higher cargo loss or damage coverage. To the extent that multiple shipments or consolidated shipments are tendered by Shipper at the same time and at the specific written request of Shipper are transported at the same time and in the same vehicle, such multiple shipments or consolidated shipments shall be considered a “single shipment” for the purposes of this Section.

B.      Liability of Carrier.

1. The Carrier arranged by Broker to transport Shipper’s property shall be liable as a motor carrier under 49 U.S.C. § 14706 and as a common carrier to Shipper with respect to damages for loss of or damage to any shipment tendered by Shipper pursuant to this
2. The Carrier arranged by Broker shall not be liable for any loss or damage caused by an act of God, the public enemy, the authority of law, the act or omission of Shipper, or due to the inherent vice of the goods shipped.

370. Processing of Cargo Loss or Damage In processing of cargo loss or damage claims, the Carrier arranged by Broker shall comply with 49 C.F.R. § 370.1, et seq. and any amendments and/or any other applicable regulations adopted by the U.S. DOT/FMCSA, or any applicable state regulatory agency, for processing loss or damage claims.

8. Cargo Liability for Shipments Originating in Canada. Carrier’s liability shall be governed by the Carrier’s tariff or the applicable contract of carriage; or b) 2 SDR (SDR = IMF Special Drawing Right) per kilo of the gross weight of the goods that are the subject of the claim; or c) 666.67 SDR per enumerated package of goods that are the subject of the claim; or d) 75,000 SDR per transaction, whichever is less, provided however that where a higher limitation of liability is mandatorily applicable by law then that higher limitation of liability shall apply. You must file claims for cargo loss or damage with Foothills or Carrier within 45 days from the delivery date or, in the event of non-delivery, the scheduled delivery date. You must file any civil action against Carrier in a court of law within 2 years from the date of the shipment of the Goods from the point of origin. In no event will Foothills or Carrier be liable to You or any other party for special, incidental, or consequential damages for any reason whatsoever.
9. Broker shall require all Carriers which it uses to transport a shipment tendered to Broker by Shipper to have and maintain public liability and property damage insurance in the amount of One Million Dollars ($1,000,000.00) and cargo loss or damage insurance in the amount of One Hundred Thousand Dollars ($100,000.00) per shipment. Broker agrees to maintain a complete and up to date file of all Certificates of Insurance evidencing public liability and property damage insurance policies, and cargo loss or damage insurance policies of all Carriers that it contracts with regarding transportation arranged for or on behalf of Shipper.

 

 

10. Indirect, Incidental, Consequential, Special or Punitive Damages. Neither Party shall be liable to the other for any indirect, incidental, consequential, special or punitive damages (such as, but not limited to, loss of profits, loss of market, loss of customer goodwill, shutdown, or punitive or exemplary damages) without prior written notification of the risk of loss and its approximate financial amount, and the written agreement of the Party to assume such responsibility.
11. Any notice and other communication relating to this Agreement shall be in writing and be sent: (a) by certified mail, return receipt requested, postage prepaid, (b) by nationally recognized overnight courier service to the addresses stated above, (c) by fax, with proof of receipt by the intended recipient, (d) by email with proof of receipt by the intended recipient, or (e) in such other manner or to such other address as shall have been designated by the Party to which such notice or other communication is to be given. All such notices and other communications will be deemed to have been given and received (1) in the case of personal delivery, on the date of such delivery, (2) in the case of facsimile or e mail transmission 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), (3) in the case of delivery by nationally recognized overnight courier service, on the business day following dispatch if sent by guaranteed next day delivery, or (4) in the case of mailing, on the third business day following such mailing.
12. Force Majeure. If either Party is prevented from performing its obligations under this Agreement because of fire, earthquake, flood, explosion, wind, water, strike, lockout, acts of terror, or any other cause beyond the control of the affected Party, such Party shall immediately give notice of such prevention to the other Party, and shall be excused from the performance of any and all its obligations under this Agreement for the duration of such specified circumstances. No liability for any loss, damage or delay with respect to freight shipped or transported shall accrue on account of the occurrence of any such special circumstance absent the actual negligence of Broker.
13. 1. As part of the business relationship between You and Foothills Logistics, either Party may be in or come into possession of information or data that constitutes trade secrets, know-how, confidential information, marketing plans, pricing, or anything else otherwise considered proprietary or secret by the other (“Confidential Information”). In consideration of the receipt of such Confidential Information and potential business, each Party agrees to protect and maintain such Confidential Information in the utmost confidence, to use such Confidential Information solely in connection with their business relationship, and, to take all measures reasonably necessary to protect the Confidential Information.
    2. You agree that Foothills Logistics’ costs for services is confidential and need not be disclosed to You. You specifically waive any rights You may have under 49 CFR § 371.3.
    3. Notwithstanding anything to the contrary, you acknowledge that Foothills may access, disclose, or allow third-parties access to the data, information, or content you provide to Foothills to comply with the law or to respond to requests or legal processes.
14. Choice of Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Ohio except to the extent any mandatory federal law is applicable to this Agreement and all actions brought to enforce the terms of this Agreement or other disputes between the Parties shall be brought in the courts situated in Hamilton County, Ohio.
15. Entire This Agreement cancels and supplants any and all other written or oral agreements and understandings for property transportation broker services between Broker and Shipper. This Agreement may not be amended except in a written amendment executed by Shipper and Broker.
16. Any headings or numbering of paragraphs or articles of this Agreement are for organizational convenience only, and all terms and conditions of this Agreement are intended to take precedence over any such heading or numbering. If any part, term, paragraph or provision of this Agreement is found or declared to be invalid or unenforceable for any reason, the remainder of this Agreement shall remain in full force and effect.

 

17. The failure of a Party to object to or take action with respect to any breach of any term of this Agreement by the other Party shall not be construed as a waiver of any rights under this Agreement by the non-objecting Party, nor of any claims, past, present or future, for any breach of this Agreement.

 

18. Jurisdiction and Venue. These Terms and Conditions are governed by and construed in accordance with the applicable federal laws of the United States, or, alternatively, and depending on jurisdiction, the laws of the State of Tennessee. The parties agree to jurisdiction and venue in a United States Federal District Court located in Knox County, Tennessee, or if federal jurisdiction is not available, then in a State Court located in Knox County, Tennessee.

 

 

In order to comply with the recordkeeping requirements of 21 C.F.R. § 1.912(d), both Parties shall retain copies of these terms and conditions in written or electronic form for not less than twelve (12) months .

Foothills Terms and Conditions 2024 Updated