This Agreement is entered into this day of June 30th, 2020, by and between SLEEK FLEET LLC., a Third Party Logistics company (“3PL”), and a Registered Motor Carrier, (“CARRIER”); collectively, the “Parties”. (“Registered” means operated under authority issued by the Federal Motor Carrier Safety Administration (or its predecessors) within the U.S. Department of Transportation.). In exchange for Carriers agreements, representations, and warranties as set forth herein, 3 PL shall: (1) provide shippers with verification of carrier qualifications, (2) access to and the opportunity to bid on shipper freight loads, (3) immediate notice of successful carrier bids, (4) payment to carrier of 100% of its bid within four (4 ) business hours of receipt by 3 PL of verified proof of delivery.
- CARRIER REPRESENTS AND WARRANTS THAT IT:
- Shall transport the property, under its/his/her own operating authority subject to the terms of this Agreement and has authority to do so.
- Makes the representations herein for the purpose of inducing 3PL to enter into this Agreement;
- Agrees that a Shipper’s insertion of 3PL’s name as the carrier on a bill of lading shall be for the Shipper’s convenience only and shall not change 3PL’s status as a 3PL nor CARRIER’s status as a motor carrier.
- Is in, and shall maintain compliance during the term of this Agreement, with all applicable federal, state and local laws relating to the provision of its services including, but not limited to: transportation of Hazardous Materials, (including the licensing and training of drivers), as defined in 49 C.F.R. §172.800, §173, and §397 et seq. to the extent that any shipments hereunder constitute Hazardous Materials; security regulations; owner/operator lease regulations; loading and securement of freight regulations; implementation and maintenance of driver safety regulations including, but not limited to, hiring, controlled substances, and hours of service regulations; applicable provisions of the Food Safety Modernization Act including but not limited to sanitation, temperature, and contamination requirements for transporting food, perishable, and other products, qualification and licensing and training of drivers; implementation and maintenance of equipment safety regulations; maintenance and control of the means and method of transportation including, but not limited to, performance of its drivers; all applicable insurance laws including but not limited to workers compensation laws and regulations.
- CARRIER will notify 3PL immediately if its federal Operating Authority is revoked, suspended or rendered inactive for any reason; and/or if it is sold, or if there is a change in control of ownership, and/or any insurance required hereunder is threatened to be or is terminated, cancelled, suspended, or revoked for any reason.
- (i) CARRIER shall defend, indemnify and save harmless 3PL, 3PL’s customers, shippers and consignees (hereafter collectively referred to in this Section F as “3PL”) from any and all liabilities, claims, lawsuits, actions, demands and judgments made, threatened or entered against 3PL, and from all costs and expenses (including reasonable attorney’s fees) incurred by 3PL in defending, paying or settling any claims or judgments for personal injury or death to persons, damage to property, loss, damage, theft, or delay to cargo, or civil or criminal penalties that arise directly or indirectly from or as a consequence of any transportation services provided by CARRIER under this Agreement.
(ii) The Parties expressly intend that 3PL’s customers, shippers and consignees are third-party beneficiaries of CARRIER’s indemnification obligation under this Section F.. The obligation to defend shall include all costs of defense as they accrue.
- Does not have an “Unsatisfactory” safety rating issued by the Federal Motor Carrier Safety Administration (FMCSA), and will notify 3PL in writing immediately if its safety rating is changed to “Unsatisfactory” or “Conditional” or “Unfit”.
- Authorizes 3PL to invoice CARRIER’s freight charges to shipper, consignee, or third parties responsible for payment.
- EQUIPMENT: Subject to its representations and warranties in Paragraph 1 above, CARRIER agrees to provide the necessary equipment and qualified personnel for completion of the transportation services required for 3PL and/or its customers. CARRIER will not supply equipment that has been used to transport hazardous wastes, solid or liquid, regardless of whether they meet the definition in 40 C.F.R. §261.1 et. seq. CARRIER will furnish equipment for transporting Perishables which is sanitary, and free of any contamination, suitable for the particular commodity being transported and which will not cause in whole or in part adulteration of the commodity as defined in 21 USCA 342. CARRIER agrees that all shipments will be transported and delivered with reasonable dispatch, or as otherwise agreed in writing
- With respect to cargo intended for human or animal consumption, the owner of cargo may, in its sole discretion, declare a shipment to be a total loss for which CARRIER is liable if the load is delivered without the original seal in-tact, if there are other signs of tampering, or, with respect to cargo requiring controlled temperature transportation, if CARRIER is unable to provide records demonstrating that the trailer was maintained within the required temperature range at all times during transit.
- INSURANCE: CARRIER will have its insurance agent furnish 3PL with Certificate(s) of Insurance, or insurance policies providing thirty (30) days advance written notice of cancellation or termination, and unless otherwise agreed, subject to the following minimum limits: Public liability $1,000,000.00; motor vehicle (including hired and non-owned vehicles)( scheduled vehicles not accepted), $1,000,000.00 ($5,000,000.00 if transporting hazardous materials including environmental damages due to release or discharge of hazardous substances); cargo damage/loss, $100,000.00, workers’ compensation with limits required by law, or opt-out certificates if authorized by law . Except for the higher coverage limits which may be specified above, the insurance policies shall comply with minimum requirements of the Federal Motor Carrier Safety Administration and any other applicable regulatory state agency. Cargo insurance policies shall not exclude coverage for loss due to unattended vehicle, or trailer detached from tractor, infidelity of CARRIER employees, or identity theft. Nothing in this Agreement shall be construed to avoid or limit CARRIER’s liability due to any condition, exclusion, deductible or failure of coverage in any insurance policy. CARRIER’s insurance shall be primary and noncontributory to any insurance provided by 3PL.
- In order to comply with shipper visibility requirements Carrier shall enable load tracking at all times.
- BOOK NOW PRICE: Will include only linehaul and fuel charges when submitting all in pricing for a load. All other accessorial charges (either known at the time of booking or later) will be calculated based on the accessorial table at the time of submitting Book Now Price. Accessorial charges will be paid only with proper documentation.
- TRACKING: CARRIER agrees to enable the Sleek Fleet Driver Interface to track location and provide timely (within 30 minutes of actual event) updates of event notifications through the Driver Interface. Event notifications include but are not limited to: Dispatched and ready to load 3PL Load, Arrived at Shipper, Loaded at Shipper, Arrived at Consignee, Load Complete, and uploading shipment documents. Uploading shipment documents must be completed within 24 hours of actual delivery.
- 3PL RESPONSIBILITIES:
- Provide immediate access to Shipper loads which can be sortable by Carrier location and Carrier equipment available.
- Verify to Shippers that Carrier has passed 3PL qualification requirements.
- Enable Carrier to bid on Shipper loads posted on 3PL website. Notify Carrier immediately if Carrier bid for Shipper freight has been accepted.
- PAYMENT: (1) The Parties agree that 3PL is the sole party responsible for payment of CARRIER’s charges. Failure of 3PL to collect payment from Shipper shall not exonerate 3PL of its obligation to pay CARRIER. 3PL agrees to pay 100% of CARRIER’s electronically accepted bid (including properly documented accessorials) within four (4) hours of receipt of a legible copy of the bill of lading signed by Shipper and consignee, and any other documents required by Shipper pertaining to the load, provided CARRIER is not in default under the terms of this Agreement (and within 7 business days if CARRIER is in default of only section “1-M Tracking” above). CARRIER shall not seek payment from Shipper, consignees, or third parties if any one of them can prove payment to 3PL. All proof of delivery documentation must be submitted to 3PL electronically. Business hours are defined as 9am to 5pm central standard time Monday through Friday except holidays.
- CARRIER agrees that all payments received from 3PL for CARRIER invoices are final and conclusive unless 3PL receives written objection within 15 days of the date payment is mailed (or wired) by 3PL
- LOSS & DAMAGE CLAIMS: 3PL will assist Carrier in the administration of resolving cargo loss, damage, and other claims. Please call 910-420-4295 if you have any issues.
- ASSIGNMENT OF RIGHTS: CARRIER automatically assigns to 3PL all its rights to collect freight charges from Shipper or any responsible third party on receipt of payment from 3PL and will provide 3PL with separate written assignment upon request.
- INDEPENDENT CONTRACTOR: It is understood and agreed that the relationship between 3PL and CARRIER is that of independent contractor. None of the terms of this Agreement, or any act or omission of either Party shall be construed for any purpose to express or imply a joint venture, partnership, principal/agent, fiduciary, employer/employee relationship between the Parties. CARRIER assumes liability for and shall provide the sole supervision and shall have exclusive control over the acts and omissions and operations of its employees, independent owner operators, contractors, subcontractors, agents, as well as all vehicles and equipment used to perform its transportation services hereunder. 3PL has no right to discipline or direct the performance of any driver and/or employees, contractors, subcontractors, or agents of CARRIER. CARRIER represents and agrees that at no time and for no purpose shall it represent to any party that it is anything other than an independent contractor in its relationship to 3PL.
- NON-EXCLUSIVE AGREEMENT: CARRIER and 3PL acknowledge and agree that this contract does not bind the respective Parties to exclusive services to each other. Either party may enter into other agreements with other carriers, 3PLs, or freight forwarders.
- WAIVER OF PROVISIONS
- Failure of either Party to enforce a breach or waiver of any provision or term of this Agreement shall not be deemed to constitute a waiver of any subsequent failure or breach, and shall not affect or limit the right of either Party to thereafter enforce such a term or provision.
- This Agreement is for specified services pursuant to 49 U.S.C. §14101(b). To the extent that terms and conditions herein are inconsistent with Part (b), Subtitle IV, of Title 49 U.S.C. (ICC Termination Act of 1995), the Parties expressly waive any or all rights and remedies they may have under the Act.
- DEFAULT: In the event of a breach by CARRIER of any provisions of this Agreement. 3PL shall have the right to withhold and/or set off any payments owing to CARRIER and/or received from shippers which 3PL is obligated to pay CARRIER. 3PL’s set-off rights include (but are not limited to) the amount of any freight damage, loss or theft claims, penalty, late, and or no-show charges arising out of the transportation of freight under this Agreement by CARRIER, and which are asserted against 3PL by shippers, consignees and/or their assignees and /or subrogees. The right of withholding and/or setoff is not an exclusive remedy and 3PL shall have and may exercise, subject to Paragraph E below, all other remedies it may have at law or in equity against CARRIER.
- DISPUTES: (i) In the event of a dispute arising out of this Agreement, including but not limited to Federal or State statutory claims, recourse (except as provided below) shall be to arbitration or litigation as selected by 3PL. Arbitration proceedings (if selected) shall be for non-perishables, under the rules of the Transportation Arbitration and Mediation PLC (TAM), or the Transportation ADR Council, Inc. (ADR), and for perishables, under DRC Trading Practices, Blue Book Transportation Guidelines, and/or NAPTWG Best Practices upon mutual agreement of the Parties, or if no agreement, then at 3PL’s sole discretion. Arbitration proceedings shall be commenced within eighteen (18) months from the date of delivery or 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 TAM, ADR, or DRC/Blue Book. The decision of the arbitrators shall be binding and final with a written explanation reason for the decision, 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 and shall provide for recovery of legal fees 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 selected arbitration association nearest Chicago, Illinois or by teleconference or video conference upon agreement of the Parties, or such other place as mutually agreed upon in writing or directed by the acting arbitration association. Provided, however, either Party may apply to a court of competent jurisdiction for injunctive relief. Venue for any such action shall be in the state in which the relief is sought. Unless preempted or controlled by federal transportation law and regulations, the laws of the State of Illinois shall be applied and controlling notwithstanding applicable conflicts of laws rules. The arbitration provisions of this paragraph shall not apply to enforcement of the award of arbitration.
- In the event litigation is selected, the prevailing party shall be entitled to recover costs, expenses, and reasonable attorney’s fees, including, but not limited to, any incurred on appeals, and/or incurred in any action for enforcement of a judgment.
- Venue, controlling law, and jurisdiction in any litigation proceedings shall be in the State of Illinois, Cook County and CARRIER waives all objections to venue, in Cook County, Illinois.
- In addition to Confidential Information protected by law, statutory or otherwise, the Parties agree that all of their financial information and that of their customers, including but not limited to freight and 3PL rates, amounts received for 3PL 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 the event of violation of this Confidentiality paragraph, the Parties agree that the remedy at law, including monetary damages, may be inadequate and that the Parties shall be entitled, in addition to any other remedy they may have, to an injunction restraining the violating Party from further violation of this Agreement in which case the prevailing Party shall be liable for all costs and expenses incurred, including but not limited to reasonable attorney’s fees.
- The limitations of liability for cargo loss and damage as well as other liabilities, arising out of the transportation of shipments, which originate outside the United States of America, may be subject to the laws of the country of origination.
- MODIFICATION OF AGREEMENT: This Agreement may not be amended, except by mutual written agreement.
- DRIVER VERIFICATION: I hereby agree and give my consent to 3PL to perform a one time inquiry for my driver record on my behalf from the FMCSA via the Pre Employment Screening Program (PSP). 3PL agrees to keep this information confidential and to only use it for the purpose of verifying my identity. 3PL will provide a copy to CARRIER at CARRIER’s request.
- All notices provided or required by this Agreement, shall be electronically made and confirmed to the addresses shown herein.
- 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.
- Notices sent as required hereunder, to the addresses shown in this Agreement shall be deemed sent to the correct address, unless the Parties are notified in writing of any changes in address.
- CONTRACT TERM: The term of this Agreement shall cover single loads and/or multiple loads. Multiple load agreements may be terminated with or without cause, by either Party at any time, including the initial term. In the event of termination of this Agreement for any reason, the Parties shall be obligated to complete performance of any work in progress in accordance with the terms of this Agreement.
- SEVERANCE: SURVIVAL: In the event any of the terms of this Agreement are determined to be invalid or unenforceable, no other terms shall be affected and the unaffected terms shall remain valid and enforceable as written. The representations, rights and obligations of the parties hereunder shall survive termination of this Agreement for any reason.
- COUNTERPARTS: This Agreement may be executed in any number of counterparts each of which shall be deemed to be a duplicate original hereof.
- CARRIERS SIGNATURE: CARRIER’S electronic signature constitutes CARRIER’s agreement to all terms and conditions of this Agreement as of the date accepted.
- ENTIRE AGREEMENT: Unless otherwise agreed in writing, this Agreement contains the entire understanding of the Parties and supersedes all verbal or written prior agreements, arrangements, and understandings of the Parties relating to the subject matter stated herein. The Parties further intend that this Agreement constitutes the complete and exclusive statement of its terms, and that no extrinsic evidence may be introduced to reform this Agreement in any judicial or arbitration proceeding involving this Agreement.
Sleek Fleet, LLC
525 W. Monroe St. Ste. 1900
Chicago, IL 60661-3693
Where applicable, the following Trailer Interchange Terms will also apply to this agreement:
In consideration of the mutual undertakings of the parties hereto, as set forth herein, it is agreed that User may interchange owned, leased or controlled trailers (“Equipment”) subject to the following terms and conditions.
- EQUIPMENT: The term Equipment as used herein shall refer to any trailers owned, leased or controlled by 3PL.
- POINTS OF INTERCHANGE: The specific points of interchange shall be at the points mutually agreed upon between the parties. At the time of interchange, an authorized representative of each party shall execute, in multiple copies, as the parties may require, an Interchange Receipt and Inspection in the form and manner prescribed by 3PL.
- USE AND RETURN: User agrees that the Equipment will be utilized only for transportation to complete promptly and expeditiously the motor vehicle movement and return the Equipment to 3PL in the city and at the terminal where received, unless otherwise specified by 3PL. User shall be responsible for the safe and timely return of the Equipment to 3PL, ordinary wear and tear excepted. User agrees not to interchange Equipment obtained from 3PL hereunder with third parties.
- USER’S RESPONSIBILITIES: User shall accept responsibility for all owner operators and their leased power units as if they were User’s own employees and vehicles. Proper identification on tractors is mandatory and is an obligation of the User. User shall have complete control and supervision of such Equipment, and such Equipment shall be operated under its authority while in its possession, and 3PL shall have no right to control the detail of the work of any employee or agent operating or using said Equipment during such time. Any person operating, in possession of, or using said Equipment after parties hereto sign an Inspection Report and until proper form is signed returning the Equipment to 3PL, is not the agent or employee of 3PL for any purpose whatsoever.
- TAXES: User shall bear the cost of all federal, state or municipal taxes, fines, fees or charges levied or imposed or arising out of the use of the Equipment while in its possession, until its proper return to 3PL.
- INDEMNIFICATION: User agrees to indemnify, defend and hold 3PL harmless from and against any and all loss, damage, liability, cost or expense, including but not limited to, attorney’s fees, suffered or incurred in connection with injuries or death of any person, or loss of or damage to any property, arising out of use, operation or maintenance of said Equipment until such Equipment has been returned to 3PL and receipt issued therefor. The obligations assumed by User pursuant to this paragraph shall apply regardless of any contributing act or omissions, whether negligent or not, on 3PL’s part.
- INSURANCE: Not withstanding the requirements of the Sleek Fleet Broker Carrier Agreement, Before commencing any work hereunder, User shall procure, and shall thereafter maintain in force during the period of this Agreement, all of its own insurance, with insurance companies satisfactory to 3PL, covering all of the work and services to be performed hereunder by User and each of its subcontractors:
- User agrees to maintain for the duration of this Agreement, insurance coverage for owned and hired automobile liability including bodily injury and property damage, with coverage of at least $1,000,000 combined single limit or the equivalent.
- User agrees to maintain for the duration of this Agreement, insurance coverage for physical damage insurance for loss or damage to Equipment while in the care, custody and/or control of the User. Such coverage may be written on an actual cash value basis per unit, but in no event less than $20,000.
- User agrees to maintain for the duration of this Agreement, insurance coverage for cargo loss insurance for loss and damage to lading contained in the Equipment while in the care, custody and/or control of the User. Such coverage shall be in the minimum amount of $100,000.
- All certificates of insurance must provide 3PL a minimum of thirty (30) days notice of cancellation.
- CHARGES: User agrees to pay 3PL $75 for each day or portion thereof Equipment interchanged hereunder is in User’s possession. 3PL will bill User for said charges on a monthly basis. User must submit billing disputes to 3PL within thirty (30) days of invoice date. In the even User fails to pay all uncontested amounts due within thirty (30) days of invoice date, this Agreement shall be subject to immediate suspension by 3PL without formal notice to User. 9.
- MAINTENANCE OF EQUIPMENT: Ordinary maintenance and other service adjustments on Equipment, tires excluded, occasioned by ordinary use will be:
- Absorbed by the User when costs thereof do not exceed $50.00, exclusive of service charge.
- Billed to and borne by 3PL in its entirety when costs thereof would exceed $50.00; provided, however, that 3PL’s authorization is obtained prior to commencement of repairs when the costs thereof is estimated to exceed $100.00. 3PL will not be responsible for any other 3 consequential costs. Bills against 3PL for ordinary maintenance of Equipment shall be tendered within thirty (30) days from the date the repairs were completed, unless otherwise agreed upon.
- TIRES: 3PL shall furnish Equipment with tires and tubes of proper size at the time of interchange. Thereafter, until the Equipment is returned to 3PL, repairs to tires and tubes shall be made by and at the expense of User. When an unserviceable tire or tube is replaced, it must be with a new tire/tube or newly recapped tire. When a tire is replaced, the empty tube should be reapplied if serviceable. User shall return the blown-out or unserviceable tire to 3PL.
- DAMAGE OR LOSS TO EQUIPMENT: The User shall be responsible for all damages and losses, occurring while in its possession, to the Equipment of 3PL. In the event of total loss of Equipment, User shall pay to 3PL the commercial value of the trailer at the time it was interchanged.
- DISPUTE RESOLUTION: If any suit shall be brought against either party and a judgment recovered which such party will be compelled to pay and the other party shall, under the provisions of this Agreement, be solely liable therefore, such other party on demand shall promptly repay the party paying the same all money which it (the party paying the same) is required to pay, including damages, costs, fees, or other expenses. Neither party shall be bound by any judgment at law or in equity against the other party unless it has had reasonable notice from such other party requiring it to appear in an action or suit and make defense thereto for its own account or jointly with the other party. If such notice shall have been given by either party to the other party and the party receiving the same shall fail to appear and make defense, thereupon it shall be bound by the judgment or decree in the suit. In the event any charge due hereunder remains unpaid more than sixty (60) days from invoice date and 3PL thereafter refers collection of such charge to an attorney, User agrees to pay, in addition to said charge, an amount equal to 25% of said charge to represent attorneys’ fees and collection expenses.
- MISCELLANEOUS: The laws of the State of OHIO shall govern this Agreement in all of its aspects, including execution, interpretation, performance and enforcement. This Agreement together with all exhibits shall constitute the entire agreement between the parties, and no oral amendment or modification thereof shall be permitted.
- TERM AND TERMINATION: This Agreement is in effect from the date shown herein, and shall continue to in effect until terminated by either party giving the other party ten (10) days advance notice of termination, in writing, addressed to the other party. Any Equipment in possession of the User on the date of termination must be returned to 3PL within seventy-two (72) hours. If Equipment is not returned by User and it becomes necessary for 3PL to have the Equipment returned, User shall bear all expenses for return of Equipment.