SERVICE AGREEMENT
TERMS AND CONDITIONS
These Service Agreement Terms and Conditions are hereby issued and effective as of June 21, 2024.
RECITALS
A. WHEREAS BROKER TO BROKER LLC is licensed as a Property Broker by the Federal Motor Carrier Safety Administration (FMCSA) under MC-1622467 or by appropriate State agencies, and as a licensed broker, arranges for freight transportation; and
B. WHEREAS SHIPPER, to satisfy some of its transportation needs, desires to utilize the services of BROKER to arrange for transportation of SHIPPER’s freight.
NOW THEREFORE, intending to be legally bound, BROKER and SHIPPER agree as follows:
AGREEMENT
1. APPLICATION; DEFINITIONS; AMENDMENT. These Service Agreement Terms and Conditions (as in effect on the date of shipment, these “Terms and Conditions”) apply to any transportation arranged by Broker to Broker LLC (“we”, “us” or “our”). All transportation services arranged or provided by us are performed in our capacity as a property broker, not as a carrier or freight forwarder. At SHIPPER’s (“you” or “your”) request, we will arrange for carriage by a motor carrier or any mode of transportation by third parties of goods moving to, from and between points in the United States, and within points located in the same U.S. state (“Services”). Upon our Acceptance, we will arrange for motor carriers, rail carriers, third party logistics providers, and other third parties (each a “Servicing Carrier”) to perform the actual transportation; our role is solely that of a property broker.
For purposes of these Terms and Conditions, “SHIPPER” means the consignor, consignee, or owner of the goods with respect to which Services are provided, any other person who is or may become interested in the goods or their transportation, as well as any person at whose request or on whose behalf we undertake any Services. References to “goods” include the actual commodities being transported as well as any packaging, pallets, containers or equipment in which such commodities are transported.
By engaging us for Services, you expressly accept these Terms and Conditions and agree that these Terms and Conditions have been accepted by and will be binding on you.
We may revise these Terms and Conditions at any time. We will post revised versions of these Terms and Conditions on its website at www.btob3pl.com and the revised version will take effect at 12:01 A.M. Central Time as of the Effective Date shown on the revised Terms and Conditions. We have no duty to provide notice of any revisions to these Terms and Conditions to Customer other than by posting the updated Terms and Conditions on our website.
2. SERVICE. We agree to arrange for transportation of your freight pursuant to the terms and conditions of this Agreement and in compliance in all material respects with all federal, state and local laws and regulations relating to the brokerage of the freight covered by this Agreement. our responsibility under this Agreement shall be limited to arranging for, but not actually performing, transportation of your freight. The PARTIES may, upon written mutual agreement, include additional service terms.
3. VOLUME.
A. You are not restricted from tendering freight to other brokers or directly to motor carriers. We are not restricted from arranging transportation for other parties.
B. You shall be responsible to us for timely and accurate delivery instructions and description of the cargo, including any special handling requirements, for any shipment.
4. FREIGHT CARRIAGE. We warrant that we haves entered into, or will enter into, bilateral contracts with each carrier we utilize in the performance of this Agreement. We further warrant that those contracts comply with all applicable federal and state regulations and shall include the following provisions:
A. Carrier shall agree to defend, indemnify and hold us and you harmless from all damages, claims or losses arising out of its performance of the agreement, including cargo loss and damage, theft, delay, damage to property, and personal injury or death.
B. Carrier shall agree that its liability for cargo loss or damage shall be no less than that of a Common Carrier as provided for in 49 USC 14706 (the Carmack Amendment). Exclusions in Carrier's insurance coverage shall not exonerate Carrier from this liability.
C. Carrier shall agree to maintain at all times during the term of the agreement with us, insurance coverage with limits not less than the following:
- Auto Liability - $1,000,000/$5,000,000 for Hazardous Materials
- Cargo Liability - $100,000
- Worker’s Compensation Liability Insurance – required in the amounts provided by applicable state law or if not, then occupational accident mandatory.
We shall verify that each carrier we utilize in the performance of this Agreement has insurance coverage as defined above.
D. Carrier shall agree that the provisions contained in 49 CFR 370.1 et seq. shall govern the processing of claims for loss, damage, injury or delay to property and the processing of salvage.
E. Carrier shall authorize us to invoice you for services provided by the Carrier. Carrier shall further agree that we are the sole Party responsible for payment of its invoices and that, under no circumstance, will Carrier seek payment from the you, consignee or our customer.
F. Carrier shall agree that, at no time during the term of its contract with us, shall it have an “Unsatisfactory” safety rating as determined by the Federal Motor Carrier Safety Administration (FMCSA). If Carrier receives an Unsatisfactory safety rating, it shall immediately notify us. We shall not knowingly utilize any earner with an Unsatisfactory safety rating in the performance of this Agreement.
G. Carrier shall agree that the terms and conditions of its contract with us shall apply on all shipments it handles for us. Any terms in a tariff that are referenced in the carrier contract which are inconsistent with the contract shall be subordinate to the terms of the contract.
H. Carrier shall expressly waive all rights and remedies under Title 49 U.S.C., Subtitle IV, Part B to the extent they conflict with the contract.
I. We further warrant it will require proof of insurance and operating authority from each Carrier.
5. RECEIPTS AND BILLS OF LADING. If you request it, we agree to provide you with proof of acceptance and delivery of such loads in the form of a signed Bill of Lading or Proof of Delivery, as specified by you. Your insertion of our name on the bill of lading shall be for your convenience only and shall not change our status as a property broker. The terms and conditions of any freight documentation used by us or carrier selected by us may not supplement, alter, or modify the terms of this Agreement.
6. PAYMENTS. We shall invoice you for our services in accordance with the rates, charges and provisions set forth in your tender if accepted by us, or our signed Rate Confirmation Agreement if accepted by you, or any other oral or written agreement agreed to by the parties prior to the movement of the shipment, and any accessorial or other charges, written supplements or revisions that are mutually agreed to between the PARTIES. If rates are negotiated between the PARTIES and not otherwise confirmed in writing, such rates shall be considered “written” and shall be binding upon our invoice to you and your payment to us. you agree to pay our invoice prior to shipment or within thirty (30) days of invoice date, depending on the terms agreed to by the PARTIES without deduction or setoff. We shall apply payment to the amount due for the specified invoice, regardless of whether there are earlier unpaid invoices. Payment of the freight charges to us shall relieve you, Consignee or other responsible Party of any liability to the carrier for non-payment of its freight charges; and we hereby covenant and agree to indemnify you, Consignee or other responsible Party against such liability.
7. CLAIMS
A. Freight Claims: You must file claims for cargo loss or damage with us within one hundred eighty (180) days from the date of such loss, shortage or damage, which for purposes of the Agreement shall be the delivery date or, in the event of non-delivery, the scheduled delivery date. You must file any civil action against us in a Court of Law within two (2) years from the date the carrier or we provide written notice to you that the carrier has disallowed any part of the claim in the notice. Carriers we utilize shall agree in writing with us to be liable for cargo loss or damage as outlined in paragraph 4B above. The carriers’ cargo liability for any one shipment shall not exceed $100,000 unless we are notified by you of the increased value prior to shipment pickup and with reasonable advance notice to allow us and/or the carrier to procure additional insurance coverage. It is understood and agreed that we are not a carrier and that we shall not be held liable for loss, damage or delay in the transportation of your property unless caused by our negligent acts or omissions in the performance of this Agreement. We shall assist you in the filing and/or processing of claims with the carrier. If payment of claim is made to you by us, you automatically assign your rights and interest in the claim to us so as to allow us to subrogate our loss. In no event shall we or the carrier be liable to you or anyone else for special, incidental, or consequential damages that relate to loss, damage or delay to a shipment, unless you have informed us in written or electronic form, prior to or when tendering a shipment or series of shipments to us, of the potential nature, type and approximate value of such damages, and we specifically agree in written or electronic form to accept responsibility for such damages.
B. All Other Claims: The PARTIES shall notify each other within sixty (60) days of learning of any claims other than cargo loss or damage claims and shall file any such claims with the other Party within one hundred eighty (180) days from the date of notice. Civil action, if any, shall be commenced in a Court of Law within two (2) years from the date either Party provides written notice to the other Party of such a claim.
8. INSURANCE. We agree to procure and maintain at our own expense, at all times during the term of this Agreement, the following insurance coverage amounts:
- A. Comprehensive general liability insurance $1,000,000 covering bodily injury and property damage
- B. Contingent Cargo Insurance $100,000
- C. Errors and Omissions Insurance $1,000,000
Upon your request, we shall submit to you a certificate of insurance as evidence of such coverage and which names you as “Certificate Holder”.
9. SURETY BOND. We shall maintain a surety bond or trust fund agreement as required by the Federal Motor Carrier Safety Administration in the amount of $10,000 and furnish you the proof upon request.
10. SHIPPER WARRANTIES. By tendering goods to us for transportation, you make the following representations and warranties:
A. Hazardous Materials: You shall comply with all applicable laws and regulations relating to the transportation of hazardous materials as defined in 49 CFR § 172.800 and §173 et seq. to the extent that any shipments constitute hazardous materials. You are obligated to inform us immediately if any such shipments do constitute hazardous materials. You shall defend, indemnify and hold us harmless from any penalties or liability of any kind, including reasonable attorney fees, arising out of your failure to comply with applicable hazardous materials laws and regulations.
B. Suitability of Good for Transportation. (1) All goods have been properly and sufficiently prepared, packed, stowed, are fully and accurately described, labeled, and/or marked, and the preparation, packing, stowage, labeling and marking are appropriate to any operations or transactions affecting the goods and the characteristics of the goods and the intended mode of transportation; (2) the goods are suitable for transportation in or on the intended trailer or container type or mode of transportation; and (3) for LTL shipments, any goods susceptible to damage by ordinary handling in the LTL environment must be adequately protected, packaged and marked in such a way to alert us or the Servicing Carrier(s) of the possibility of damage from ordinary handling and must bear appropriate labels.
C. Sufficient Information and Instructions. You will provide all information and instructions that are reasonably necessary for us to effectively arrange for the performance of the transportation and related services you request in accordance with any applicable laws, rules, regulations or conventions.
D. Accurate Goods Descriptions. You will provide detailed and accurate descriptions of any goods tendered for transportation and their accurate weights. You are responsible to be aware of and to apply and pay for all licenses, permits or authorities required by governmental authorities to conduct the business and transportation you are contemplating.
E. No Tender of Prohibited Goods. You will not tender any goods that will or would reasonably be expected to contaminate, taint, corrode, or otherwise adversely impact the quality or condition of other goods being transported, or the trailer/container used in transporting the goods. We will not accept shipments for transportation of the following nature:
- Explosives:
- Shipments requiring "protective security service" or "armed guard surveillance service";
- Human Remains
- Precious metals, bullion, or currency;
- Original works of arts, collections, antiques or precious stones;
- Certain bulk commodities of hazardous substances; or
- Hemp or hemp-derived products including but not limited to cannabidiol (“CBD”) oil.
Further commodity restrictions may be applicable by the Servicing Carrier. A list of restrictions can be found on the Servicing Carrier’s website. We and/or the Servicing Carrier reserves the right to refuse any shipment at point of acceptance that its representatives deem unacceptable for transit due to any security or safety concern.
F. Handling of Equipment. You will cause all empty trailers and containers tendered for loading to be inspected before loading and reject any equipment that is not in apparent suitable condition to protect and preserve the goods during transportation. You will promptly notify us of any rejected equipment. If you request that we arrange for trailers, containers or chassis to be dropped at a location for your convenience and left unattended, you will pay for loss or damage to such equipment occurring during or because of such possession or use.
G. Authority to Bind Others to Terms. The person or entity tendering the goods to us represents and warrants to us that you have authority to agree to, accept and bind, as applicable, the consignor, consignee, owner and insurer of the goods and others with an interest in the goods or transportation services to these Terms and Conditions. Likewise, the consignor, consignee, owner and insurer of the goods or others with an interest in the goods or the transportation services represent and warrant to us that the person or entity tendering the goods to us for transportation is authorized to bind them to these Terms and Conditions and that they agree to, accept and are bound by these Terms and Conditions.
H. Acceptance of Shipment Not a Waiver. Our or the Servicing Carrier’s acceptance of any shipment will not be a waiver of your obligation to comply with any obligation in these Terms and Conditions.
I. Access to SHIPPER's Facilities. You will provide the Servicing Carriers with access to the facilities to load or unload the tendered shipments. Access to the facilities by the Servicing Carriers shall be without charge to the Servicing Carriers unless otherwise agreed to in writing between the parties. You are solely responsible for maintaining the loading and unloading facilities in a good and safe condition, and in compliance with all applicable laws, codes and regulations. You hereby waive and release us from any liability for any loss or damage to your facilities or to your personal property located on such facilities.
11. DEFAULT. Both PARTIES will discuss any perceived deficiency in performance and will promptly endeavor to resolve all disputes in good faith. However, if either Party materially fails to perform its duties under this Agreement, the Party claiming default may terminate this Agreement on 10 (ten) days written notice to the other Party. You shall be responsible to pay us for any services performed prior to the termination of this Agreement and for shipments not yet completed and/or not yet invoiced to you.
12. INDEMNIFICATION. Subject to the insurance limits in Section 8, we and you shall defend, indemnify and hold each other harmless against any claims, actions or damages, including, but not limited to, cargo loss, damage, or delay, and payment of rates and/or accessorial charges to carriers, arising out of their respective performances under this Agreement, provided however, the indemnified Party shall not offer settlement in any such claim without the agreement of the indemnifying Party which agreement shall not be unreasonably withheld. If the indemnified Party offers or agrees to a settlement for such a claim without the written agreement of the indemnifying Party, the indemnifying Party shall be relieved of its indemnification obligation. Neither Party shall be liable to the other Party for any claims, actions or damages due to the negligence of the other Party· Although Section 8 only imposes insurance requirements upon us, for purpose of this Section 12, those amounts also shall limit the scope of your indemnification obligations. The obligation to defend shall include all costs of defense as they accrue.
13. ASSIGNMENT/MODIFICATIONS OF AGREEMENT. Neither Party may assign or transfer this Agreement, in whole or in part, without the prior written consent of the other Party. No amendment or modification of the terms of this Agreement shall be binding unless in writing and signed by the PARTIES.
14. SEVERABILITY/SURVIVABILITY. In the event that the operation of any portion of this Agreement results in a violation of any law, or any provision is determined by a court of competent jurisdiction to be invalid or unenforceable, the Parties agree that such portion or provision shall be severable and that the remaining provisions of the Agreement shall continue in full force and effect. The representations and obligations of the PARTIES shall survive the termination of this Agreement for any reason.
15. NONWAIVER. Failure of either Party to insist upon performance of any of the terms, conditions or provisions of this Agreement, or to exercise any right or privilege herein, or the waiver of any breach of any of the terms, conditions or provisions of this Agreement, shall not be construed as thereafter waiving any such terms, conditions, provisions, rights or privileges, but the same shall continue and remain in full force and effect as if no forbearance or waiver had occurred, and no course of performance or course of dealing between the PARTIES shall thereby arise.
16. NOTICE. Unless the PARTIES notify each other in writing of a change of address, any and all notices required or permitted to be given under this Agreement shall be to the email at the end of this Agreement.
17. FORCE MAJEURE. Neither Party shall be liable to the other for failure to perform any of its obligations under this Agreement during any time in which such performance is prevented by fire, flood, or other natural disaster, war, embargo, riot, civil disobedience, or the intervention of any government authority, or any other cause outside of the reasonable control of the Party, provided that the Party so prevented uses its best efforts to perform under this Agreement and provided further that such Party provide reasonable notice to the other Party of such inability to perform.
18. CHOICE OF LAW AND VENUE. All questions concerning the construction, interpretation, validity, and enforceability of this Agreement, as well as the substantive rights and duties of the PARTIES to this Agreement, whether in a court of law or in arbitration, shall be governed by and construed and enforced in accordance with the laws of the State of Tennessee without giving effect to any choice or conflict of law provision or rule that would cause the laws of any other jurisdiction to apply. The PARTIES represent that they are subject to and hereby irrevocably submit to exclusive jurisdiction of any court with jurisdiction to include Rutherford County, Tennessee or the United States District Court for the Middle District of Tennessee, Nashville Division, if the monetary damages warrant such, in connection with any suit, action, or proceeding arising out of or relating to this Agreement and irrevocably agree that all claims and counterclaims of Carrier or Broker to Broker LLC in respect to any such suit, action or proceeding will be heard or determined only in any such courts. In any legal action brought to enforce any right or duty under this Agreement or to recover damages for breach of this Agreement, the prevailing Party shall be awarded reasonable attorney’s fees and costs.
19. ARBITRATION. In the event of a dispute arising out of this Agreement, the Party's sole recourse shall be to arbitration within two years from the date of the alleged loss. Proceedings shall be conducted under the rules of the Transportation Arbitration and Mediation PLLC (TAM),_the American Arbitration Association (AAA) or Transportation ADR Council, Inc. (ADR) at the discretion of the Party filing the complaint Upon agreement of the PARTIES, arbitration proceedings may be conducted outside of the administrative control of the TAM, AAA or ADR. The decision of the arbitrator shall be binding and final and the award of the arbitrator may be entered in a court of competent jurisdiction. The prevailing Party shall be entitled to recovery of costs, expenses and reasonable attorney fees as well those incurred in any action for injunctive relief: or in the event further legal action is taken to enforce the award of arbitrators. The arbitration provisions of this paragraph shall not apply to enforcement of the award of arbitration.
20. CONFIDENTIALITY. We shall not utilize your name or identity in any advertising or promotional communications without written confirmation of your consent and the PARTIES shall not publish, use or disclose the contents or existence of this Agreement except as necessary to conduct their operations pursuant to this Agreement. We will require our carriers to comply with this confidentiality clause.
21. ENTIRE AGREEMENT. This Agreement, including all Appendices and Addenda, constitutes the entire agreement intended by and between the PARTIES and supersedes all prior agreements, representations, warranties, statements, promises, information, arrangements, and understandings, whether oral, written, expressed or implied, with respect to the subject matter hereof.
22. COUNTERPARTS. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same Agreement. A signed copy of this Agreement delivered by facsimile, e-mail, or other means of electronic submission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
23. INDEPENDENT CONTRACTOR; RELATIONSHIP BETWEEN SHIPPER, BROKER, AND SERVICING CARRIERS. Our and your relationship is that of independent contractors, and their respective employees are under the exclusive management and control of the Party employing such persons. The Servicing Carrier we engage will have sole and exclusive control over the manner in which it performs the actual transportation, including the operations of all vehicles and equipment used to perform the transportation. The Servicing Carriers and their drivers, employees or representatives will not, under any circumstances, be deemed to be our employees or agents or involved in any kind of joint venture and/or partnership with us. The foregoing notwithstanding, we and the Servicing Carriers may agree to designate us to act as the Servicing Carrier’s agent for the sole purpose of collecting the agreed-to freight charges from you related to the Services. Except for such specific designation, none of the terms of these Terms and Conditions, or any act or omission of either you or us will be construed for any purpose to express or imply a joint venture, partnership, principal/agent, fiduciary, employer/employee relationship between you, us, or the Servicing Carriers.
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