The following sets forth the agreed-upon terms and conditions (the “Agreement”) upon which You have engaged DestiNATION Transport, LLC (“DestiNATION”) to provide certain transportation brokerage services (the “Services”) on Your behalf. Please read this Agreement carefully as it constitutes the agreement between You and DestiNATION regarding the provision of Services contemplated hereunder.
When used in this Agreement, the term “You” or “Your” means the shipper, consignee, broker, carrier or similar person or entity and each of its employees, agents or representatives that engages DestiNATION to provide the Services. The person having engaged DestiNATION hereby represents and warrants to DestiNATION that he or she is authorized to act by You and agrees to the terms of this Agreement on Your behalf.
You agree and acknowledge that DestiNATION may, in its sole discretion, unilaterally change or amend this Agreement at any time and without notice to You. Each time You engage DestiNATION, You agree to do so under the then-current version of this Agreement.
You are engaging DestiNATION as an independent contractor to perform the Services. Through this engagement, You and DestiNATION are not principal, agent, joint ventures, or partners.
DestiNATION is a federally authorized transportation property broker, operating pursuant to MC No. 895727 in accordance with applicable statutes and United States Department of Transportation (USDOT) and Federal Motor Carrier Safety Administration (FMCSA) regulations. You have engaged DestiNATION to arrange for the transportation of certain cargo (“Cargo”) with duly licensed and authorized motor carriers (“Carriers”) in accordance with applicable laws and regulations and the terms of this Agreement. DestiNATION will place shipments of Cargo (“Shipments”) with Carriers for the purpose of transporting Cargo with reasonable dispatch and in good order as may be directed or instructed by You or Your agent.
DestiNATION is not a motor carrier or freight forwarder, will not transport the Cargo, and is not an agent of or otherwise affiliated with, nor does it control or otherwise direct the business operations of any Carrier. No Carrier will be, or be considered to be, a subcontractor of DestiNATION. DestiNATION will not act as, or be considered to be, the principal or the agent of any Carrier. DestiNATION will not have, or be considered to have, any control over any Carrier or the drivers, equipment, operations, or activities of any Carrier.
You shall be responsible for providing full and accurate information and instructions for which transportation is being arranged including, but not limited to, an accurate description of the Cargo, correct origin and destination information, correct shipper and consignee information, value of the Shipment, pick-up and delivery instructions, and all other information necessary for DestiNATION to arrange transportation of the Shipment and the selected Carrier to complete the transportation of the Shipment.
You will be responsible for verifying and confirming the identity of the Carrier at origin and prior to the load tender process. You must confirm the Carrier’s equipment is properly placarded. If DestiNATION provides You with the identity of the Carrier in advance of the shipment, then You shall confirm the Carrier’s vehicle markings, name, USDOT number and documentation match the identified Carrier. You are responsible for verifying the driver’s identification and ensuring the driver is proficient in English at the time of load tender.
You agree to pay DestiNATION the rates and charges associated with each Shipment. The rates and charges for services provided hereunder shall apply on all Shipments for which You, Your subsidiaries or related companies are responsible for payment.
DestiNATION shall submit its invoices for the transportation services rendered hereunder within thirty (30) business days from the date of the delivery of the Shipment. All charges are to be billed in U.S. funds unless otherwise expressly and mutually agreed to in writing by the parties. You will pay invoices within thirty (30) calendar days after receipt of said invoice. If any amount that You owe DestiNATION is not received when due, You will pay DestiNATION interest on that amount at the rate of 1.5% per month (or if that rate is unlawful, the maximum rate allowed under applicable law), accruing from the date that amount was due until the date it is received by DestiNATION. The parties agree to use best efforts to expedite resolution of any late payment issues. You shall not have any right or ability to claim an offset or set off against any DestiNATION invoices.
The time limit for filing overcharge and undercharge claims (balance-due invoices) on Shipments moved pursuant to this Agreement shall be one hundred twenty (120) days from date of delivery, except that clerical errors, mathematical errors, extension errors and duplicate payments may be corrected at any time.
The Carrier is responsible for the transportation of each Shipment. Accordingly, the Carrier is responsible for loss, damage, delay, overage or shortage to Cargo pursuant to the Carmack Amendment, 49 U.S.C. §14706. The parties agree to cooperate with the other, and DestiNATION will assist You in the processing, investigation and pursuit of claims relating to loss, damage, delay, overage or shortage to Cargo. DestiNATION will notify You of any incident of loss, damage, delay, overage or shortage within twenty-four (24) hours of DestiNATION becoming aware of any such issue. DestiNATION, as a transportation broker, is not responsible or otherwise liable for any loss, damage, delay, overage or shortage regarding the transportation of Cargo hereunder.
You understand that Shipments placed with Carriers may be subject to the Carrier’s then applicable rules tariffs or classifications. You understand that a Carrier’s tariffs or classifications may limit obligations and remedies with regard to loss or injury to property under the Carmack Amendment.
You shall be obligated to immediately inspect the Shipment upon delivery by the Carrier. You are obligated to immediately report any loss, damage or shortage to DestiNATION upon delivery; provided, however, that for concealed damage, You shall report any such loss, damage or shortage within ten (10) days of the delivery date. In all circumstances, You shall file a claim for loss or damage with the transporting Carrier within thirty (30) days of the delivery date, providing pieces of evidence and documentation.
Shipments booked with DestiNATION may be transported by the Carrier pursuant to a bill of lading, manifest or similar document (collectively “Transportation Document”). You shall be responsible for ensuring the Transportation Document properly identifies the Carrier as the federally authorized motor carrier for the Shipment, shipper, consignee, origin and destination for the applicable Shipment. You shall ensure the Transportation Document contains the proper description, count, and, if applicable, weight of the Shipment. You shall be responsible for providing the Carrier with instructions to ensure the safe loading, securement, transport, delivery and unloading of each Shipment. The Transportation Document may identify DestiNATION as the freight broker or as the Third Party Freight Charges Bill To. The misidentification of DestiNATION as a “carrier” on any Transportation Document, including any bill or lading, shall not serve to modify or alter DestiNATION’s role as a transportation broker.
If a Shipment is covered under any law or regulation governing the transportation of food, including the Food, Drug and Cosmetic Act (21 U.S.C. § 341, et seq.), Food Safety Modernization Act (21 U.S.C. § 2201, et seq.), the Sanitary Food Transportation Act (49 U.S.C. 5701, et seq.), and the FDA’s Final Rule on the Sanitary Transportation of Food for Human and Animal Food (21 C.F.R. § 1.900 et seq.) (collectively, the “Food Safety Laws”), then it shall be Your obligation to specify the applicable body or bodies of law, statutes and/or regulations on the face of the Transportation Document for the Shipment (“Covered Food Shipment”). For the purposes of this Section 8, the term “Shipper” shall mean the shipper from whom the Carrier receives the Cargo for transport, and as that term is further defined or interpreted under 21 C.F.R. § 1.900 et seq.
Prior to loading a Covered Food Shipment, You shall ensure the Carrier is provided with written instructions to be followed by the Carrier to maintain the safety of the Cargo including, without limitation, all temperature control requirements and temperature control documentation requirements, including an operating temperature for the transportation and, when necessary, the pre-cooling phase, all sanitation requirements and sanitation documentation requirements for the Covered Food Shipment, including those for the Carrier’s equipment, and any design specifications and cleaning procedures (the “Written Instructions”).
You shall ensure the shipper shall, prior to loading, inspect and ensure that the Carrier’s equipment meets the shipper’s specifications stated in the Written Instructions to prevent a Covered Food Shipment from becoming unsafe during transportation.
During the term of your relationship with DestiNATION and for a period of twelve (12) months following the end of said relationship, You shall not, directly or indirectly, in any way call on, solicit, request services or products from, tender or do business with or otherwise encourage any Carrier, supplier or vendor to terminate or alter its relationship with DestiNATION. Furthermore, You and DestiNATION agree not to disclose the terms of this Agreement inclusive of any rates and charges agreed upon between You and DestiNATION to any third party unless required by law. You agree and acknowledge that money damages and remedies at law may be inadequate to protect DestiNATION against any actual or threatened breach of this Agreement and, without prejudice to the rights and remedies otherwise available to DestiNATION, you agree to the granting of specific performance, injunctive relief or other equitable relief in favor of DestiNATION without proof of actual damages and to waive any requirement for the securing or posting of any bond in connection with such remedy.
In no event will either party be liable to the other under or in connection with this Agreement or its subject matter for any consequential, incidental, indirect, exemplary, special, enhanced or punitive damages including, but not limited to, lost revenue or profits, loss of production, or diminution in value.
You agree, at Your cost and expense, to indemnify, defend, and hold harmless DestiNATION including each of its subsidiaries, affiliates, members, officers, employees, agents, servants, representatives, successors and assigns (collectively, the “Indemnity Group”) from and against any and all demands, claims, actions, causes of action, losses, damages, judgments, suits, settlements, liabilities, costs and expenses (including, without limitation, interest, penalties, reasonable attorney’s fees and related expenses) which are asserted against, imposed upon, or incurred by, any member of the Indemnity Group, directly or indirectly, by reason of, arising out of or in connection with Your obligations or performance under this Agreement, including negligence, fraud or willful misconduct, directly or indirectly related to this Agreement by You or any of Your subsidiaries, affiliates, shareholders, members, officers, directors, governors, employees, agents, servants, representatives, contractors, successors and assigns.
This Agreement is governed and shall be construed by the laws of the State of Minnesota exclusive of conflicts of law provisions. Any dispute relating to this Agreement shall be brought and resolved exclusively in state or federal courts located in the Hennepin County, State of Minnesota. The parties hereby stipulate the exclusive jurisdiction of the state or federal courts situated in Hennepin County, State of Minnesota over any litigation between the parties arising hereunder. The parties further agree that the sole and exclusive venue for any action arising out of or relating to this Agreement shall be the state or federal courts situated in Ramsey County, State of Minnesota.
If, for any reason, any provision of this Agreement is determined to be unenforceable or invalid, that provision (or the part thereof that is unenforceable or invalid) will be deemed severed from this Agreement, and the remaining provisions of this Agreement will be carried out with the same force and effect as if the severed provision (or part) had not been a part of this Agreement.
No failure by a party to enforce any provision of this Agreement will operate as a waiver of that provision or any violation of that provision. Section headings have been used in this Agreement for convenience purposes only. They are not a part of the provisions to which they relate and they will not limit the scope of the provisions to which they relate.
This Agreement constitutes the entire understanding and agreement between the parties with respect to the subject matter addressed in this Agreement and supersedes all prior or contemporaneous oral or written communications, understandings, or agreements between the parties respect to that subject matter, including, without limitation, all prior versions of this Agreement. No course of dealing, custom, or usage of trade will vary or modify any of the terms of this Agreement. This Agreement may only be altered, amended or modified pursuant to a written document executed by authorized representatives of both parties. Neither party may assign this Agreement without the prior written consent of the other party. DestiNATION shall be additionally entitled to recover all attorney’s fees, costs and disbursements incurred in connection with prosecuting or defending its rights under this Agreement. NO TERM OR PROVISION CONTAINED IN ANY DOCUMENT OR INSTRUMENT THAT YOU SEND TO DESTINATION WHETHER CONSISTENT OR INCONSISTENT, IN WHOLE OR IN PART, WITH THE TERMS OF THIS AGREEMENT WILL BE OR BECOME PART OF THIS AGREEMENT, SERVE TO SUPERSEDE, AMEND OR MODIFY THIS AGREEMENT, OR SHALL OTHERWISE BE BINDING UPON DESTINATION. ALL SUCH TERMS AND PROVISIONS ARE HEREBY EXPRESSLY REJECTED.
END OF TRANSPORTATION BROKERAGE SERVICES TERMS & CONDITIONS AGREEMENT.