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EXHIBIT 10.7
[FORM OF]
AGENT CARRIER AGREEMENT
This agreement is made and entered into this __th day of _________, 1999 by and
between Central Freight Lines, Inc., of 0000 Xxxx Xxxx Xxxxx, Xxxx, Xxxxx,
00000, hereafter called "Prime Carrier", and ________________________, hereafter
called "Agent Carrier". As used herein the terms Prime Carrier and Agent Carrier
include all employees, agents, servants of said Prime Carrier and Agent Carrier.
1. RESPONSIBILITIES AND DUTIES OF AGENT CARRIER:
1.1 The Agent Carrier shall efficiently, and in a manner satisfactory to
the Prime Carrier, provide handling, pickup, delivery, and other specified
services within its operating area for the Prime Carrier.
1.2 In the performance of the services herein described, the Agent Carrier
shall provide and assume full responsibility for the maintenance and
operation of its vehicles, equipment, and terminal facilities, and for the
direction and control of its employees, agents, and servants, as an
independent contractor.
1.3 The Agent Carrier shall be absolutely liable as an insurer for the
Prime Carrier's freight in its possession and the records of the Prime
Carrier as to the condition of freight when delivered by Prime Carrier to
the Agent Carrier shall be conclusive evidence as between the parties
hereto; the Agent Carrier shall be liable for any and all loss, damage,
delay, or injury to person or property arising during or incident to the
performance of any of the services specified herein and the Agent Carrier
shall procure and maintain, at it's own expense, adequate policies of
insurance as may be required by the Prime Carrier covering the liability
hereby assumed which shall not be limited by the amount of such policies
and that the Agent Carrier shall be fully liable herein. The basis from
which discrepancies arising from the exchange of freight will be settled as
follows. Any deviation from this agreement must have the joint written
consent of all parties:
A. FREIGHT INTERCHANGE
a. All freight moving between the Prime Carrier and the Agent
Carrier will be on a transfer without joint check basis.
b. Tendering carrier, be it the Prime Carrier or the Agent
Carrier, will provide a transfer document (unload report) for
each shipment transferred.
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c. Transfer document(s) will provide all pertinent information
necessary to facilitate delivery of the shipment(s).
d. Receiving carrier personnel will check, count, and inspect
each shipment for proper billing, proper labeling (delivery name
and address), piece count and condition.
e. After counting, checking and inspecting the shipment(s), the
receiving carrier personnel will record discrepancies (OS&D) on
the unload report.
f. Receiving carrier personnel will record discrepancies with
descriptive notations and will legibly note employee name and
identification number, pieces transferred, and date transferred
on the transfer document(s).
g. The original copy of the transfer document(s) will be retained
by the tendering carrier. A copy of the transfer document(s) will
be tendered to the receiving carrier with the shipment(s).
h. No freight will be transferred without proper billing.
i. The receiving carrier must forward via fax message, a copy of
the "Trailer Unload Report" to the tendering carrier, no later
than 12:00 noon local time, following unloading of the trailer
(excluding weekends and holidays).
j. On freight interchanged from the Prime Carrier to the Agent
Carrier, the original delivery receipt will be used to note
exceptions at the time of interchange and a duplicate of the
delivery receipt will be used by the Agent Carrier to note
exceptions at time of delivery.
k. On freight interchanged from the Agent Carrier to the Prime
Carrier the original xxxx of lading will be used to note
exceptions at the time of pickup with a photocopy to be retained
by the Agent Carrier. At time of interchange the Prime Carrier
shall note any subsequent exceptions on the original xxxx of
lading.
B. OVERAGES, SHORTAGES, AND DAMAGE
a. Overages will not be transferred by either carrier without
prior written approval by the shipper. A copy of the shipper's
written approval must be attached to the tendering carrier's
transfer document(s). Overages transferred in error will be
recorded by the
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receiving carrier on the transfer documents and will be stopped
in transit pending disposition from the tendering carrier.
b. Shortages discovered during interchange must be recorded on
the transfer document(s) with a complete description of the
item(s) short when possible. In the interest of providing
service, partial shipments will be accepted by the receiving
carrier and moved to destination for delivery to the consignee.
c. Damages discovered at time of transfer will be recorded on the
transfer document(s) with a descriptive notation of the extent of
damage.
C. INSPECTIONS
a. Inspections will be performed by an independent inspection
agency on all damages, in excess of $350, discovered after
delivery and reported by the consignee.
b. Written notice of waived inspection will be kept on file for
all damages reported by the consignee to be less than $350.
c. Inspection costs will be assumed by the carrier requesting the
inspection, and when necessary, will be adjusted at time of the
claim. If claim is prorated, costs of inspection will be adjusted
accordingly.
D. APPORTIONMENT OF CLAIMS
a. Apportionment of claims for cargo loss, damage or delay will
be determined by exception recorded on the transfer document(s)
for the claim shipment(s). Exceptions recorded on the transfer
document(s) will be the liability of the tendering carrier.
Receiving carrier will be liable for shipment(s) received in good
order but delivered to the consignee with exception.
b. Liability for concealed damage will be shared on a pro-rated
revenue basis.
E. TRANSMITTAL, SETTLEMENT, AND LITIGATION OF CLAIMS
a. The transmittal, settlement and litigation of claims with the
claimant shall be responsibility of the Prime Carrier.
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b. All Agent Carrier claims liability shall be settled with the
Prime Carrier.
1.4 In furtherance of Para. 1.3, the Agent Carrier shall carry cargo
loss and damage insurance in an amount acceptable to the Prime
Carrier. The Agent Carrier shall provide to the Prime Carrier a
current Certified Certificate of Insurance on an ongoing basis. The
Agent Carrier shall also name the Prime Carrier as an additional
insured.
1.5 The Agent Carrier shall indemnify and hold harmless the Prime
Carrier against any and all detention and/or demurrage bills in
connection with units handled exclusively by the Agent Carrier.
1.6 The Agent Carrier shall at all time comply with all applicable
Federal, State, and Municipal laws, ordinances, tax requirements,
rules and regulations and that it shall indemnify and hold harmless
the Prime Carrier against any and all liability resulting from failure
to comply with such laws, ordinances, tax requirements, rules or
regulations.
1.7 The Agent Carrier shall permit examination at any reasonable time
by authorized representatives of the Prime Carrier of any and all
records maintained pertaining to services provided for herein.
1.8 The Agent Carrier Invoice to the Prime Carrier For Services
Rendered: Presentation of invoice for services rendered, on a weekly
basis, to include the Prime Carrier's freight xxxx number, weight,
charges collected, if applicable, and the Agent Carrier's charges for
each delivery or handling; said invoice is to be presented on a per
trailer basis and should be accomplished by the register of shipments,
a copy of the consist, a copy of the Prime Xxxxxxx'x xxxx of lading to
the Agent Carrier, and a copy of the Agent Carrier delivery receipt.
For the purpose of this agreement a week will run from Sunday through
Saturday.
1.9 Collect On Delivery Shipments: No delivery of freight shipped on
Order Bills of Lading or on a COD basis shall be made by the Agent
Carrier until the Order xxxx of lading, properly endorsed, or COD
monies have been surrendered to the Agent Carrier, unless said
shipment is released by the Prime Carrier in writing; the Agent
Carrier shall collect all COD monies in cash, cashier's check or money
order unless otherwise authorized by the Prime Carrier in writing. All
documents and/or monies shall be promptly delivered to the Prime
Carrier's offices. COD fees shall accrue to the delivering carrier. If
for any reason the Agent Carrier is unable to effect delivery, the
Agent Carrier shall immediately contact the Prime Carrier for further
instructions.
1.10 The Agent Carrier shall not assess pricing established by the
Prime Carrier for single-line service nor shall it disclose the Prime
Carrier's joint line pricing
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information to any person other than customers and prospective
customers of the Prime Carrier.
2. EQUIPMENT INTERCHANGE AGREEMENT
2.1 Interchange of trailers or equipment between the parties to this
agreement will be governed by the terms and conditions of separate
written agreements.
3. RESPONSIBILITIES AND DUTIES OF THE PRIME CARRIER
3.1 The Prime Carrier shall provide the Agent Carrier with prompt and
accurate information as to the shipments which are in route to the
Agent Carrier.
3.2 In furtherance of Para. 3.1, the Prime Carrier shall provide the
Agent Carrier with delivery receipts, bills of lading, and such other
documents as may be necessary for the handling and/or delivery of said
shipments.
3.3 Upon receipt of the Agent Carrier invoices for services rendered
under this agreement, the Prime Carrier shall pay the Agent Carrier
the amounts due according to the "Basis for Division of Revenue"
provided in "Appendix A".
3.4 The Prime Carrier will xxxx and collect all transportation charges
from the "xxxx to" party, unless the Prime Carrier delivery document
clearly indicates "Driver Collect", in which case Agent Carrier will
collect and immediately remit freight charges to the Prime Carrier.
3.5 It will be the responsibility of the Prime Carrier to handle and
resolve all freight refusals and on hand freight.
4. DEFAULT
4.1 In the event of default by the Agent Carrier of any of the Agent
Carrier's duties or responsibilities as contained in this agreement,
the Agent Carrier shall be liable to the Prime Carrier for any
damages, including incidental or consequential, which the Prime
Carrier incurs as a result of said default.
5. MISCELLANEOUS CONDITIONS
5.1 Accessorial and/or arbitrary charges shall accrue to the carrier
on whose line the services were performed.
5.2 Fractions of a cent or percent will be omitted if less than one
half of a cent or percent and increased to the next whole number if
one half or more of a cent or percent.
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5.3 It is understood by the Prime Carrier and the Agent Carrier, that
in applying provisions of this agreement revenue accruing to either
the Prime Carrier or the Agent Carrier will not exceed the local
published rate for its portion of the through revenue.
5.4 This agreement will not be construed in any manner , shape, or
form as an exclusive agency relationship, and it is clearly understood
that the Prime Carrier or the Agent Carrier have the absolute right to
enter into similar agreements with any other parties without any
limitations or restrictions whatsoever.
5.5 This contract may be terminated by either party by giving the
other party thirty (30) days notice in writing; or by either party
immediately by written notice to the other party in the event of a
breach by such party of any of the conditions of this agreement.
5.6 This agreement shall not be assignable by either party hereto, nor
shall the performance of any of the duties hereunder be delegable by
either party hereto, without the written consent of the other party.
This agreement shall not be assignable by operation of law.
5.7 Nothing contained in this agreement shall be deemed or construed
by the parties hereto or by any third person to create the
relationship of partnership of joint venture or any association
between any of the parties hereto other than the independent
contracting parties.
5.8 If either party hereto shall bring any suit or action against the
other for relief, declaratory or otherwise, arising out of this
agreement, the prevailing party shall have and recover against the
other party, in addition to all court costs and disbursements, such
sum as the Court may adjudge to be reasonable attorneys' fees.
5.9 Each party shall indemnify and save harmless the other party and
its subsidiaries and affiliates and their respective officers,
directors, and employees (hereinafter collectively referred to as
"Other Party") from and against all liabilities, obligations, losses,
damages, penalties, claims, actions, suits, costs, charges, and
expenses, including without limitation, fees and expenses of legal
counsel and expert witnesses, which may be imposed upon or incurred by
or asserted against the Other Party, or any of them, by reason of: (I)
injury or death to persons (including without limitation, employees of
the Other Party); (II) damage to the property of any person or legal
entity (including without limitation, the property of the Other
Party); or (III) misrepresentation, breach of warranty or other
breaches or defaults by the Other Party as a result of or arising out
of any of the work or services performed under this agreement,
provided, however, this agreement to indemnify and hold harmless the
Other Party shall not be applicable to the extent that such
liabilities, obligations, losses, damages, penalties, claims,
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actions, suits, costs, charges and expenses are attributable to the
sole negligence or intentional conduct of the Other Party.
5.10 Time is of the essence with respect to the performance of each of
the covenants and agreements herein set forth.
5.11 Except to the extent provided in Para. 2 "Equipment Interchange
Agreement", this agreement contains the entire agreement and
understanding of the parties with respect to the entire subject matter
hereof, and there are no representations, inducements, promises, or
agreements, oral or otherwise, not embodied herein. Any and all prior
discussions, negotiations, commitments and understandings relating
thereto are merged herein.
Central Freight Lines, Inc. -----------------
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X.X. Xxx 0000
Xxxx, Xxxxx 00000
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Xxxx Xxxxx
Director of Administration
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Appendices
Appendix A - Basis for the Division of Revenue