RAPIDCO’S CARRIER TERMS AND CONDITIONS
The following Carrier Terms and Conditions, which supplement the Transportation Contract, if any, govern the motor carrier services provided to RapidCo.
1.Carrier’s Operating Authority. The carrier shall provide RapidCo with copies of Carrier’s operating authorities, and its safety rating, if any, prior to performing transportation services to RapidCo. Moreover, Carrier agrees to immediately notify RapidCo in the event its operating authorities are suspended or revoked. Carrier further agrees to notify RapidCo in the event a safety audit results in less than a satisfactory safety rating, or a score lower than the thresholds established under CSA 2010. The carrier shall not have an unsatisfactory safety rating issued from the U.S. Department of Transportation, and Carrier shall immediately notify RapidCo in writing in the event Carrier becomes deficient in any of the seven CSA safety improvement categories and/or receives a warning letter or notice of violation from the Federal Motor Carrier Safety Administration. Carriers with conditional safety ratings will not be used without the prior written approval of the shipper.
2.Performance of Motor Carrier Services. Carrier agrees to only accept shipments it can transport to points in the United States, Canada and Mexico, pursuant to its operating authorities, and in accordance with its Transportation Contract with RapidCo, if any, these Terms and Conditions, any pickup and delivery schedules, and the instructions provided by RapidCo and/or its customers and in full compliance with the Federal Motor Carrier Safety Regulations. In the performance of the transportation services contemplated hereunder, irrespective of the existence of a written contract, Carrier owes RapidCo a duty to and shall exercise the standard of care required by the various regulatory requirements and established industry practices to properly safeguard any freight tendered by RapidCo. Carrier further agrees that it will not broker or otherwise tender any load tendered by RapidCo to another carrier, without RapidCo’s prior approval, and in the event Carrier breaches this prohibition, against brokering a shipment tendered by RapidCo, Carrier acknowledges and agrees that (a) RapidCo shall be relieved of all responsibility for compensating Carrier for the load, (b) Carrier will reimburse RapidCo for all costs, liabilities and expenses incurred by RapidCo as a result of Carrier's breach of this prohibition, and (c) Carrier shall be and remain liable to RapidCo, and its customer, pursuant to these Terms and Conditions, and the Transportation Contract, if any, including, but not limited to, liability for loss, damage or delay whether such loss, damage or delay occurred while the shipment was in the possession of Carrier or such other third party carrier. Moreover, in the event Carrier (or the third party carrier) fails to complete the transportation of any shipment in accordance with the terms pursuant to which Carrier accepted the shipment, i.e., delivering the shipment in accordance with the scheduled delivery appointment, Carrier shall reimburse RapidCo all amounts RapidCo may be liable for to the shipper or consignee arising out of Carrier’s (or third party carrier’s) failure to perform. Nothing in this provision, or in the Transportation Contract, shall be construed to limit, remove or compromise any right or remedy which RapidCo may have, in law or in equity, against Carrier and/or such other third-party carrier.
3.Calculation of Mileage Charges. Unless otherwise agreed to in writing, any rates based on mileage shall be governed by the current edition of Rand McNally Household Goods Mileage Guide, Shortest Miles Version.
4.Accessorial Charges. All rates agreed upon between RapidCo and Carrier are deemed to be all-inclusive. Accordingly, the assessment of additional or accessorial charges is subject to prior notice to and written consent from RapidCo. *
*Rail shipments are subject to specific intermodal pricing.
5.Carrier Invoicing. Carrier agrees to look solely to RapidCo for the payment of its compensation hereunder, and under no circumstances shall Carrier seek payment directly from the shipper or consignee. Any violation of this billing condition shall result in the forfeiture of fifty (50%) percent of the freight charges on the shipment incorrectly billed.
6.Method of Payment. RapidCo’s standard payment terms are thirty-five (35) days from receipt of invoice and proof of delivery, which can be sent via facsimile (see above) or e-mail to accounting@rapidcogroup.com or mail to the business address. However, the following payment options are available: A. Immediate Quick Pay Option. In and for consideration of a five (5%) percent discount on the freight Charges, RapidCo may, in its sole discretion, advance payment of some or all of the freight charges via Check or e transfer upon receipt of the bill of lading signed by the Shipper demonstrating pick up of the shipment. B. Quick Pay Option. In and for consideration of a five (5%) discount on the freight charges. RapidCo will tender payment of the balance via ACH only upon receipt of the bill of lading or other delivery receipt signed by the consignee. C. Regular Pay. Net 35 days from receipt of invoice and the bill of lading or other delivery receipt signed by the consignee via ACH Direct Deposit (No Fees) or via paper check sent cross border through the Canadian postal service, subject to a processing fee. The immediate Quick Pay Options are not available on the first shipment Carrier moves for RapidCo Carriers may choose the quick pay option they would like to use on an invoice by invoice basis. Carriers choosing a quick pay option are instructed to forward the Quick Pay option desired, together with the invoice including RapidCo’s order number and the bill of lading or delivery receipt signed by the consignee, via facsimile. Additionally, Carriers selecting the Immediate Quick Pay Option must include its contact information.
***Required: Include signed Rate Confirmation, Delivery Receipt (proof of delivery), and print Order # on freight bill***
7.Relationship of the Parties. Carrier is an independent contractor and not an agent or employee of RapidCo. As such, Carrier shall, at its own cost and expense, provide drivers that are competent and properly licensed, and are fully informed concerning their responsibilities for the protection and care of the involved goods. Carrier further represents and warrants that the driver or drivers provided are not deficient in any of the CSA safety categories. Carrier agrees to pay the involved driver’s compensation and to be responsible for worker’s compensation coverage and all taxes (State/Provincial and federal) based on said compensation, and Carrier agrees to indemnify and hold RapidCo and its customers harmless from and against any claims by drivers for compensation, and/or unemployment and workers' compensation benefits. Carrier further agrees to provide and maintain in good working condition and suitable appearance, the equipment necessary to perform the transportation services requested by RapidCo and to furnish all necessary fuel, oil, gasoline, tires and repairs for the operation of said equipment and to pay all expenses incidental to such operation, including but not limited to, any fines or penalties incurred performing hereunder, including overweight fines. Carrier agrees that in no instance shall RapidCo be responsible for any of the above payments. Carrier represents that the transportation rendered hereunder will be performed without violating any local, State/Provincial or federal statutes, rules or regulations governing the operation of commercial motor vehicles, including but not limited to those promulgated by the Department of Transportation.
8.Claims for Loss or Damage. Carrier agrees to abide by the rules and regulations concerning the disposition and settlement of claims for loss, damage and delay set forth at 49 C.F.R. Part 370. Carrier hereby consents to the filing of claims for loss or damage via e-mail or other electronic transmissions. In the event Carrier declines a claim, the declination shall state the lawful reason for declining to accept responsibility for the claim. RapidCo shall endeavor to report to Carrier all claims for concealed loss or damage within forty-eight (48) hours of delivery. If reported within forty-eight (48) hours, claims for concealed damage shall be treated by Carrier as though an exception notation had been made on the delivery receipt at the time of delivery. The time limit within which RapidCo must file a claim against Carrier shall be nine (9) months from the date of delivery or within nine (9) months of a reasonable time for delivery if a complete loss, provided that a claim shall not be invalidated if RapidCo is unable to determine the amount of the claim within nine (9) months. The time limit within which RapidCo must institute suit against Carrier to recover on a claim filed pursuant to this paragraph shall be two years and a day from the date RapidCo receives a written declination of all or part of such claim from Carrier. In the event RapidCo initiates litigation against Carrier for recovery on a claim, RapidCo shall be entitled to recover all of its actual costs and expenses, including reasonable attorney’s fees, court costs or a sum equal to One Hundred Fifty (150%) percent of the claim amount, whichever is greater, and pre- and post-judgment interest. No salvage of any kind or nature shall be sold or offered for sale or in any way disposed of to any third party by Carrier, or its agent, without RapidCo’s or its customer’s prior written consent. Unless directed otherwise, all damaged freight shall be returned to RapidCo’s customer, at Carrier’s sole cost and expense. RapidCo, and its customer, may determine, in their sole discretion, whether the freight may be salvaged and, if salvageable, the value of such salvage. Any salvage value will be deducted from the claim amount. Notwithstanding anything contained herein to the contrary, Carrier waives any right to inspect damaged freight, if the inspection is not conducted within five (5) business days of its receipt of notification of the damage and the location where the damaged freight can be inspected.
9.Claims for Delay. By accepting a shipment, Carrier is deemed to represent and warrant that Carrier can perform the transportation services in accordance with the terms requested by RapidCo’s customers and the Federal Motor Carrier Safety Regulations. A claim for delay will arise where RapidCo and Carrier have agreed in writing upon prearranged pick-up and/or delivery times and Carrier does not arrive within two (2) hours of the prearranged pickup or delivery time and fails to provide RapidCo, in RapidCo’s sole discretion, with sufficient advance notice to allow RapidCo to notify its customer. The extent of the Carrier’s liability for delay claims shall be reimbursement of the actual labour cost of the crew, if idle, or the actual rental time of equipment, if idle. Claims for reimbursement shall be made to the Carrier in writing at its principal place of business. The claim shall include the RapidCo’s shipment number, origin and destination, shipment date, a copy of the paid invoice and/or work order from the company providing the crew and/or equipment, and explanation of details. The carrier shall pay valid claims within 30 days.
10.Liability Standards. Carrier agrees that, in the transportation of all goods hereunder, it assumes the liability of a common carrier for full actual loss, damage and delay subject to the provisions of 49 U.S.C. Section 14706, ("Carmack Amendment"). RapidCo assumes no responsibility to Carrier for delivery by the Carrier of the involved freight without loss, damage, injury or delay from point of origin to point of destination. Carrier shall not be liable for any loss, damage, injury to, or delay of a shipment caused by an Act of God, the public enemy, the authority of law, the inherent vice of the goods, or the act or default of the shipper, and where Carrier is free from negligence; it is understood that the burden to prove freedom from negligence is on Carrier. The measure of damages for loss, damage or delay shall be: (1) for goods sold to a customer, the invoice price to the customer or (2) for goods not sold to a customer, the destination market value of the goods, and any special, incidental and/or consequential damages incurred by RapidCo as a result of the claim for loss, damage or delay if caused by Carrier’s breach of this Agreement, or negligent, intentional or willful misconduct of Carrier, or its employees or agents. Carrier's liability shall begin when it signs the bill of lading or has received any such goods and shall continue until such time as Carrier receives a signed delivery receipt from the properly named consignee and nothing remains to be done by Carrier to deliver the shipment to the consignee. When a shipment is refused by the consignee or Carrier is unable to deliver it for any reason, Carrier's liability as a warehouseman shall not begin until Carrier has placed the shipment in a public warehouse or storage facility under reasonable security.
The parties agree that 49 U.S.C. 14706, which shall not be altered by any bill of lading provision or common carrier tariff, schedule, service guide or similar document, governs all liability standards and burdens of proof for loss, damage and delay claims. The parties acknowledge and agree that under no circumstances shall the Carrier's liability hereunder be less than the actual loss or injury to the property as represented by the shipper less salvage value, if any, RapidCo’s fees associated with the shipment and the freight charges. Carrier's liability may not be limited by any provision purporting to limit Carrier's liability, including without limitation, any bill of lading or common carrier tariff, schedule, service guide or similar document issued by or on behalf of Carrier and such documents without RapidCo’s prior written approval. The use of or reference to any such bill of lading, tariff, schedule, service guide or similar document or any provision(s) thereof shall not alter in any manner the terms of this provision. In the event of a conflict between the terms, conditions, and provisions of any such bill of lading, tariff, schedule, service guide or similar document, on the one hand, and, on the other, these Terms and Conditions, these terms, conditions and provisions shall govern. Similarly, any use of form bills of lading or other freight documents referring to "common carrier" service, "rules," "tariffs," "schedules," "service guides" and/or "classifications" shall not alter in any manner the contractual relationship between Carrier and RapidCo.
11.Insurance. The carrier shall at all times have and maintain in full force and effect, at the expense of Carrier, policies of insurance with reliable insurance companies acceptable to RapidCo, and in the following minimum amounts, which amounts may be modified by RapidCo upon thirty days' written notice:
A.)Commercial General Liability Insurance, including Contractual Liability Coverage covering liability assumed under the Transportation Contract, if any, and these Terms and Conditions, Broad Form Property Liability Coverage, and Personal Injury Coverage in the amount of $1,000,000.00 per occurrence for Bodily Injury and Property Damage.
B.)Automobile Liability Insurance covering "any auto" including all owned, leased, hired, and non-owned vehicles with limits of at least $1,000,000.00 per accident.
C.)Workers' Compensation Insurance, in accordance with all applicable state/provincial and federal laws, including Employer's Liability Insurance in the minimum amounts required by law. The policy shall be endorsed to include a waiver of subrogation in favor of RapidCo and its affiliated and associated companies. This coverage shall be maintained regardless of the number of employees employed by Carrier. Carrier will defend, hold harmless, and indemnify RapidCo for any claim for insurance premium or any claim by any employee of Carrier for injuries sustained in the ordinary course of business, including, but not limited to, drivers, lumpers, helpers, agents or sub-contractors of Carrier.
D.)Cargo Liability Insurance, covering loss, damage or delay to goods in transit, in a minimum amount of $100,000.00 per trailer, container or vehicle. Carrier’s cargo liability insurance policies shall not exclude coverage for infidelity, fraud, dishonesty or criminal acts of Carrier’s employees, agents, officers or directors. Carrier’s cargo liability insurance policies shall not exclude coverage for reefer malfunction, unattended vehicles or trailer detached from the power unit. If said policy contains such exclusion, Carrier shall obtain and furnish an endorsement extending appropriate coverage.
Carrier’s insurance policies shall provide for the waiver of underwriter's subrogation rights against RapidCo, its officers, directors, employees, subsidiaries and affiliates. RapidCo. shall be named as an "Additional Insured" on the coverages set forth in A., B. and D. above, and said policies shall provide that: (a) RapidCo shall not be obligated to pay premiums for any such insurance; (b) such insurance shall be primary with respect to all insured claims and (c) such insurance shall be applicable separately to each insured and shall cover claims, suits, actions or proceedings by each insured against any other insured. The carrier shall provide certificates of insurance evidencing the insurance coverage required under this provision, and that such coverage cannot be altered or cancelled without first giving RapidCo thirty (30) days' prior written notice. In the event Carrier is self-insured, it shall provide evidence of such, including proof of acceptance of self-insurance status by the FMCSA or other governing agency. It is expressly understood that RapidCo does not represent that the types or minimum limits of the insurance set forth herein are adequate to protect Carrier’s or RapidCo’s interests. RapidCo’s failure to obtain Certificates of Insurance showing current coverage in at least the minimum limits set forth above shall not relieve the Carrier of the obligation to obtain and maintain said coverage. Deductible amounts under the foregoing policies shall be paid by Carrier. The terms of this provision shall survive cancellation, termination, or expiration of the contractual relationship between Carrier and RapidCo.
12.Indemnification. RapidCo shall not be liable for any enforcement action taken, or fines or penalties assessed by a governmental agency or other entity in connection with any shipment tendered to Carrier by RapidCo due to Carrier's or its employee's, agent's or subcontractor's non- compliance with applicable foreign, federal, state, provincial and local laws, rules and regulations pertaining thereto. Carrier agrees to indemnify, defend and hold RapidCo, and its customer, harmless against any and all liability, claims or expenses, including without limitation, attorney's fees and other costs of defence, which RapidCo or its officers, agents, employees or customers may incur by reason of any such noncompliance. Carrier shall indemnify and hold harmless RapidCo, and its customers, from and against any and all loss, damage, cost, expense, including reasonable attorney’s fees and other costs of defence, which may be incurred by RapidCo, or any person, persons, firm, association, entity or corporation resulting from any acts or omissions, negligent or otherwise, of Carrier or its employees, in performing or failing to perform the transportation services requested by RapidCo, including the loading, handling, transportation and unloading of the freight, including, but not limited to, personal injury or death of persons (including without limitation, employees of RapidCo and its customers), loss, damage, delay in delivery, destruction or conversion of the property of any person or legal entity, including property being transported by Carrier, theft, defalcation or embezzlement by Carrier or its employees.
Carrier further agrees to indemnify, defend, and hold RapidCo, its officers, agents, employees and customers harmless from and against any and all liability, claims, or expenses, including without limitation attorney's fees and other costs of defence, with respect to those claims (whether or not groundless) relating in any way to Carrier's, its employee's, agent's and subcontractor's performance or failure to perform under the Transportation Contract, as supplemented by these Terms and Conditions, asserted against RapidCo, or its customer, by any person, firm, association, corporation or entity, except to the extent caused by RapidCo’s negligence. Notwithstanding any provision herein, Carrier shall indemnify and hold RapidCo and its customers harmless for all actual or consequential losses, damages, costs or expenses, including but not limited to, reasonable attorney's fees and consequential and incidental damages, arising out of or in any way connected to the intentional misconduct of Carrier, or its employees, agents or subcontractors. Moreover, Carrier, at no time, shall bring a cause of action against RapidCo for any loss, damage, expense, action and/or claim for injury to persons and/or damage to property arising out of or in connection with Carrier’s performance under the Transportation Contract, as supplemented by these Terms and Conditions. The provisions of this Indemnification shall survive the termination of the contractual relationship between Carrier and RapidCo.
13.Contamination. Carrier represents and warrants that the equipment it provides hereunder has not been used in any service, including but not limited to, transporting an animal, human or food wastes, other noxious substances or potential contaminants or toxic substances, which may compromise the quality of any products tendered hereunder. Moreover, Carrier agrees that it will not deny any claim arising from the rejection of a shipment due to a missing or broken seal solely due to an absence of proof of contamination of the freight. All transportation equipment used for any shipment tendered to Carrier by RapidCo shall be in good condition and suitable for its intended use and maintained in accordance with all applicable laws and regulations.
14.Account Protection. In addition to the Account Protection provision contained in the Transportation Contract, Carrier understands and agrees that if RapidCo losses a customer due to the intentional action of the Carrier, including but not limited to, Carrier’s refusal to deliver in a timely manner, Carrier shall pay RapidCo an amount equal to the net profit earned by RapidCo from the services RapidCo provided to the customer for the prior twelve (12) month period. Carrier further agrees as part consideration for the Transportation Contract and the compensation to be paid Carrier thereunder, that it will treat all matters relating to the business of RapidCo, or its customers, as confidential business information entrusted to Carrier solely for its use in performing the services requested by RapidCo. Such information will not be divulged in any way to any person except as is necessary for Carrier to carry out its obligations under the Transportation Contract. The provisions of paragraph 8 of the Transportation Contract and this paragraph
15.Shall survive termination of the contractual relationship between Carrier and RapidCo.
16.Bill of Lading. The carrier shall issue a bill of lading in the form specified or approved by RapidCo for property it receives for transportation from RapidCo and shall be liable to the person(s) entitled to recover under the bill of lading for any actual loss or injury to the property caused by Carrier. Carrier further recognizes and acknowledges that it is an accepted practice in the transportation industry for shippers to prepare bills of lading. Carrier agrees that the preparation and acceptance of such bills of lading shall be for the sole purpose of receiving the property and shall not constitute an agreement or contract between Carrier and the shipper tendering the goods. Carrier, or Carrier’s agent or employee shall sign the bill of lading showing the kind and quantity of freight received by Carrier. The absence of loss of any bill of lading shall not relieve the Carrier of its obligations and responsibilities with respect to any shipment. The bill of lading shall be evidence that the shipment was received by Carrier in apparent good order and condition unless otherwise noted by Carrier on the bill of lading. Moreover, the terms, conditions, and provisions of such bill of lading shall be subject and subordinate to the terms, provisions, and conditions of the Transportation Contract, if any, and these Terms and Conditions, and in the event of a conflict between the terms, conditions, and provisions of such bill of lading and of these Terms and Conditions and the Transportation Contract, the terms, conditions and provisions of the Transportation Contract and these Terms and Conditions shall govern.
17. Contract Terms Govern. The fact that Carrier may provide common carrier services to other customers or may hold authority or licenses to provide common carrier service, and maintains a tariff/schedule/service guide or similar document related thereto, shall have no effect on the contract relationship between the parties created by the Transportation Contract, as supplemented by these Terms and Conditions. Similarly, any use of form bills of lading, tariffs, including the National Motor Freight Classification or other freight documents referring to "common carrier" service, "rules," "tariffs," "schedules," "service guides" and/or "classifications" shall not alter in any manner the contractual relationship created under the Transportation Contract, as supplemented by these Terms and Conditions.
18.Carrier’s Lien. Under no circumstances shall Carrier appropriate or sell freight tendered under the Transportation Contract, or these Terms and Conditions. The carrier shall not use any freight tendered by RapidCo as a form of security or collateral. Where freight tendered by RapidCo cannot be delivered as directed by RapidCo, Carrier shall immediately contact RapidCo for further instruction. Under no circumstances shall Carrier sell or dispose of any freight tendered by RapidCo without RapidCo’s prior written authorization.
19.Waiver. All rights and remedies provided by the Interstate Commerce Commission Termination Act that have not been specifically waived under the Transportation Contract, as supplemented by these Terms and Conditions and which are not inconsistent or in conflict with the rights and remedies provided in the Transportation Contract, as supplemented by these Terms and Conditions, shall apply to transportation services provided hereunder.
20.Non-Exclusivity. Carrier may use its equipment to provide service to other shippers and brokers, and RapidCo may use other carriers.
21.Assignment or Modification of the Transportation Contract. The Transportation Contract may not be assigned or transferred in whole or in part, and supersedes all other agreements and all tariffs, rates, classifications and schedules published, filed or otherwise maintained by Carrier.
22.Authority of Executing Party. Carrier represents and warrants that the individual executing the Transportation Contract on Carrier's behalf has the authority to execute the Transportation Contract and to bind Carrier to the terms thereof.
23.General Provisions. The Transportation Contract, as supplemented by these Terms and Conditions and any Schedule A’s, constitutes the entire agreement of the parties. No agent or employee of RapidCo shall have the authority to orally waive any of the provisions of the Transportation Contract, as supplemented by these Terms and Conditions. The Transportation Contract, as supplemented by these Terms and Conditions, is divisible, and if any provision is held to violate any law or regulation, or is unenforceable for any reason, such illegality shall not affect the remaining portion of the Transportation Contract, as supplemented by these Terms and Conditions, which shall remain in full force and effect. Moreover, the terms and periods set forth in paragraph 8 of the Transportation Contract and paragraph 14 of these Terms and Conditions shall be reduced to the maximum permitted by the law actually applied to determine the validity of each such provision. The language of the Transportation Contract, as supplemented by these Terms and Conditions, shall be construed according to its fair meaning and shall not be construed against the party or parties drafting it. Any disputes under the terms of the Transportation Contract, or these Terms and Conditions, shall be litigated in the province of Ontario or federal courts, or such other state/province as deemed appropriate by RapidCo, in its sole discretion.