Carrier Sign-Up

1. Carrier's Representations and Warranties.
   Carrier represents and warrants the following:
   1. Carrier is duly authorized to operate as a common and/or contract carrier for the transportation of general commodities.
   2. Carrier holds the following motor carrier safety registration(s), in good standing if applicable:
      1. USDOT #;
      2. Ontario CVOR #;
      3. Québec Register of Owners and Operators of Heavy Vehicles #;
      4. National Safety Code (or equivalent) issued by a Canadian province/territory;
   3. Carrier has a safety rating of "Satisfactory" or "Excellent" in each of the jurisdictions where it holds a carrier safety rating, or has not yet received a safety rating or, if Carrier has a "Conditional" safety rating in any such jurisdiction has demonstrated to the satisfaction of Broker that its carrier compliance record entitles it to a rating that is better than "Conditional", having regard to the applicable laws, regulations and guidelines of Carrier's home jurisdiction.
   4. All equipment that will be used by Carrier for transportation services is in a good and proper working condition meeting all applicable requirements of any regulatory agency or governmental body.
   5. Carrier is an independent contractor.
2. Broker's Representations and Warranties.
   Broker represents and warrants (and Carrier expressly acknowledges) the following:
   1. Broker is a person with a place of business in Ontario who arranges with an operator to carry the goods of another person for compensation and by commercial motor vehicle.
   2. Broker does not, and the Docket does not authorize Broker to, operate as a motor carrier.
   3. Broker is authorized by its customers ("Broker's Clients") to select the motor carrier(s) for the transportation of the commodities to be tendered to Carrier.
3. Services to be Performed.
   Carrier shall transport shipments to and from such origins and destinations as may be designated by Broker from time-to-time in the Individual Load Confirmation and Rate Agreement delivered by Broker to Carrier, pursuant to the terms set forth in this Agreement (the "Transportation Services"). In addition, Carrier acknowledges and agrees that time is of the essence in the performance of the Transportation Services. Carrier shall notify Broker immediately of any problems or delays pertaining to any shipment. Carrier shall comply with all applicable laws and regulations, including without limitation, those pertaining to safety and security of its operations. Carrier further agrees to notify Broker within twenty-four (24) hours of receipt of notice: (1) that any regulatory agency has issued to Carrier, or proposes to issue to Carrier, a safety rating of either "unsatisfactory" or "conditional," or (2) that Carrier has been made aware of any pending or threatened safety enforcement proceeding of any regulatory agency or governmental body that may result in the suspension or cancellation of Carrier's motor carrier safety registration or a downgrading of Carrier's safety rating in any jurisdiction. Upon request, Carrier will supply Broker with all information and documents requested by the Broker from time to time.
4. Term.
   The term of this Agreement shall commence as of the date of this Agreement and shall continue for a one (1) year period thereafter, and shall automatically renew for additional one-year periods unless written notice of non-renewal is given by either party to the other at least thirty (30) calendar days prior to the end of any term (the "Term"); provided, however, that this Agreement may be terminated at any time by either party upon thirty (30) calendar days' written notice; provided further, that if either party violates any material provisions of this Agreement, then the other party shall have the right to terminate this Agreement immediately upon written notice to that effect.
5. Rates.
   Broker shall pay Carrier the rates and charges set forth on the Carrier Confirmation delivered by Broker to Carrier for each shipment. Unless Carrier objects in writing before the earlier of the time the freight is picked up or twenty-four (24) hours from the delivery of the mailing or facsimile, as applicable, Carrier shall be deemed to have agreed to such rates and charges. Before Carrier leaves the loading site with any shipment, Carrier will communicate any changes in the shipment, such as changes to the quantity, size or weight of the shipment as compared to the information set forth in the Carrier Confirmation delivered by Broker to Carrier for that shipment, or will be deemed to have accepted such changes at the same rates and charges as set forth on the Carrier Confirmation. CARRIER SHALL RECEIVE NO PAYMENT FOR ANY SHIPMENTS THAT ARE BROKERED, TRANSFERRED OR INTERLINED BY CARRIER IN VIOLATION OF SECTION 24 BELOW.
6. Invoicing.
   Carrier agrees to bill Broker for service rendered hereunder. Carrier agrees not to bill or otherwise seek payment from Broker's Client(s). Broker agrees to pay Carrier for the applicable freight charges under this contract within forty-five (45) days of receipt by Broker of Carrier's freight bill, bill of lading and signed delivery receipt free and clear of any exceptions based on check runs on the 15th and last day of each month. The Bill of Lading shall note that the shipments were transported by the Carrier acting as the carrier, and that the shipment was arranged by the Broker. Carrier agrees that delivery must occur and Carrier must provide an executed delivery receipt ("clear" with no exceptions) before payment is due pursuant to this Agreement. No payment will be required when appropriate documentation of delivery is not received by Broker within six (6) months after delivery. Carrier contact of shippers or consignees regarding freight payment is strictly prohibited and may, at Broker's option, void this Agreement. Carrier hereby acknowledges and agrees that any of Broker's clients may reference and rely upon this provision as a complete and unchallengeable defence by Broker's clients to any claim made directly by Carrier against any of Broker's clients.
7. Insurance.
   Carrier shall at all times during the life of this Contract maintain and carry the following insurance coverage with an acceptable company:
   1. Public liability and property damage (including auto liability) with a minimum combined single limit of $1,000,000.00 CDN (or the U.S. dollar equivalent) and General Liability with a limit of $1,000,000.00 (CDN or the U.S. dollar equivalent). Such insurance shall name the Carrier and the Broker as insured with respect to liabilities for personal injury, including death, and property damage arising out of the ownership maintenance, use and/or operation of the equipment.
   2. Cargo liability insurance in an amount sufficient to cover any loss or damage to Cargo with a minimum limit at all times of $100,000 CDN (or the U.S. dollar equivalent). In the U.S., regardless of Carrier's status as either a common or a contract carrier the cargo liability insurance shall be in the form required by 49 C.F.R. Section 387.311, and shall have no restrictions or exclusions that would not be accepted by the Federal Motor Carrier Safety Administration (FMCSA) for filing as a common carrier under the above cited section, but shall in all respects be identical to the cargo insurance filed in accord with the said section including all required endorsements for a common carrier and shall apply to all Carrier operations and services under this Agreement as if Carrier were a common carrier for all purposes.
   3. Worker's compensation at statutory limits and all states endorsement.
   4. Carrier further agrees to obtain and maintain any and all other insurance policies, coverages, and/or higher policy limits as may now or hereafter be required by any applicable statute or government regulation.
   5. Carrier shall cause its insurance carrier(s) to forward to Broker a standard Certificate of Insurance which shall require the insurance carrier to give Broker written notice thirty (30) days' prior to any cancellation or modification of such insurance for each of the above coverages. Carrier further agrees that it will also give Broker written notice thirty (30) days' prior to any cancellation or modification of such insurance for each of the above coverages.
   6. This Agreement shall be deemed to be an insured contract.
8. Cargo Liability.
   Carrier assumes the liability required of an interstate motor common carrier under 49 U.S.C. § 14706, as amended, regardless of whether the shipment is interstate, intrastate, foreign, extra-provincial, or intra-provincial in nature. Carrier's liability for the goods shall be for "full actual loss" which, by this Agreement, includes, but is not limited to the original invoice value charged consignee or the destination market value of goods lost or damaged, whichever is higher, freight charges, administrative costs, warehousing costs, transportation costs, and all other accessorial charges on loss and damage claims. Carrier's liability under this Agreement shall commence at the earlier of when Carrier signs the applicable bill of lading accepting Broker's, shipper's, or consignor's tender of the shipment or Carrier has loaded such shipment upon Carrier's equipment at the point of origin. Carrier's liability shall end when Carrier has delivered such shipment to the designated destination, has received a signed delivery receipt, and nothing further remains to be done by Carrier to deliver the shipment in accordance with Broker's instructions. If a shipment is refused or Carrier is unable to deliver it for any reason, Carrier shall immediately notify Broker to receive instructions regarding the disposition of the shipment.
9. Indemnity.
   Carrier shall at all times both during and after the Term of this Agreement protect, defend (at Broker's option), indemnify, and hold harmless Broker, its agents and employees against and from any and all liability, loss, damage, penalties, fines, costs and expenses of any kind whatever (including reasonable lawyers' fees and other legal costs and expenses), relating to any and all claims of every nature or character, including without limitation, claims for personal injury, death and damage to property, clean-up costs from commodity spills and damage to the environment asserted against Broker by any person and arising out of Carrier's acts or omissions.
10. Bill of Lading.
    The bill of lading with respect to each shipment shall conspicuously identify (i) that the shipments were transported by carrier, acting as a carrier, and (ii) that shipment was arranged by Broker, acting as a broker. The name of the underlying shipper shall be inserted in the blank for the shipper and the name of the consignee shall be inserted in the blank for the consignee. This Agreement shall constitute the contract of carriage. The terms of the bill of lading are subordinate to the terms of this Agreement and, in the event of a conflict between such bill of lading and this Agreement, the terms of this Agreement shall govern.
11. Settlement of Cargo Claims.
    All cargo claims, regardless of point of origin and destination, shall be settled in accordance with the provisions set forth in the attached Schedule "A", the terms of which form part of this Agreement.
12. Independent Contractor.
    Carrier shall perform its services as an independent contractor and, to the extent required or permitted by law, shall have exclusive control and direction of the persons operating the equipment or otherwise engaged in such Transportation Services. Carrier assumes full responsibility for the acts and omissions of such persons and shall have exclusive liability for the payment of local, provincial, state and federal payroll taxes, or contributions or taxes for unemployment insurance, workers' compensation, old age pensions or other social security and related protection with respect to persons engaged in the performance of such Transportation Services. Neither Carrier nor anyone employed by it shall be, represent, act, purport to act or be deemed to be the agent, representative, employee or servant of Broker.
13. Covenant Not to Compete.
    During the Term and for a period of one (1) year after termination of this Agreement, Carrier covenant's that it shall not contact any shipper, consignor, consignee or Broker's Client for the purpose of offering to provide Transportation Services where (a) the traffic of the shipper, consignor, consignee or Broker's Client first became known to Carrier as a result of Broker's efforts, or (b) the traffic of the shipper, consignor, consignee or Broker's Client was first tendered to the Carrier by the Broker. If Carrier breaches this covenant and "back-solicits" such shipper, consignor, consignee or Broker's Client and obtains such traffic, Broker shall be entitled to commission from the Carrier of fifteen percent (15%) of the freight charges received by Carrier for the movement of the involved traffic for a period of fifteen (15) months commencing on the date the involved traffic first begins to move following Carrier's breach of this covenant. The provisions of this section shall be applicable to Carrier and its officers, directors, shareholders, employees, agents, subsidiaries and affiliates. In the event this Agreement expires or is otherwise terminated, the provisions of Section 11 shall remain in full force and effect.
14. Liens.
    Carrier shall not permit and hereby waives any encumbrance or lien arising out of acts or claims against Broker to be entered, levied or to exist upon goods transported pursuant to this Agreement, including but not limited to a lien for freight charges which may be due for that particular shipment or any prior shipment. Carrier shall remove or release such lien or encumbrance immediately after becoming aware of the existence thereof and shall indemnify, defend (at Broker's option), and hold Broker harmless for any and all costs or expenses to Broker associated therewith, including costs and lawyers' fees incurred enforcing this clause.
15. Force Majeure.
    Neither party hereto will be liable for the failure to tender or timely transport freight under this Agreement if such failure, delay or other omission is caused by strikes, acts of God, war, terrorism, civil disorder, or through compliance with legally constituted order of civil or military authorities. The performance of this Agreement may be suspended by either party in the event such services are prevented by such strikes, acts of God, war, terrorism, civil disorder, or through compliance with legally constituted order of civil or military authorities. Nothing in this Section 13 shall in any way limit or reduce Carrier's responsibility or liability for cargo loss, damage, or delay under Section 6 of this Agreement.
16. Recovery of Lawyers' Fees and Litigation Expenses.
    In the event either party shall commence any action law, suit or proceeding against the other party arising out of or in connection with this Agreement, the prevailing party shall be entitled to recover from the other party all lawyers' fees and related costs, fees and expenses reasonably incurred by the prevailing party in connection with such action, suit or proceeding, including prosecuting or defending any counterclaims or third-party claims.
17. Confidentiality.
    The rights and obligations hereunder are personal to each party to this Agreement. No party may disclose any of the terms of this Agreement to any non-party without the prior written consent of the other parties except (1) as required by law; (2) to a corporate parent, subsidiary, or affiliate; or (3) to an authorized audit agency for audit purposes, provided such audit agency shall agree in writing to uphold the confidentiality of all information disclosed to them on behalf of itself or its employees.
18. Severability and Surviving Obligations.
    1. If any provision of this Agreement should be found to be unenforceable or should become in contravention of any applicable laws or regulations, the parties shall remain obligated by that which remains or such provision shall be superseded by the appropriate provisions of such laws or regulations so long as such laws or regulations remain in force and effect, whichever is applicable.
    2. All obligations for the payment of invoices and charges, indemnification and confidentiality shall survive the termination of this Agreement.
19. Time of Essence.
    Time is of the essence as to the performance by Carrier of its obligations under this Agreement.
20. Waiver.
    Any waiver by either party of any provisions or conditions of this Agreement shall not be construed or deemed to be a waiver of any other provisions or conditions of this Agreement nor a waiver of a subsequent breach of the same provision or condition, unless such is expressed in writing and signed by the party to be bound.
21. Binding Effect; Benefits.
    This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and permitted assigns.
22. Choice of Law and Forum. Except as otherwise specified in this Agreement, this Agreement shall be governed by and construed in accordance with the law of the Province of Ontario, and the federal laws of Canada applicable therein, and regulations adopted thereunder. Litigation regarding this Agreement may be brought only in the Courts in and for the Province of Ontario, Canada, including, without limitation, the Court of Appeal of Ontario and the Supreme Court of Canada.
23. Entire Agreement; Modifications.
    This Agreement, together with each of the Individual Load Confirmation and Rate Agreement documents, and any revisions, appendices, endorsements and amendments hereto or thereto, contains the entire and exclusive agreement between the parties, and no statements, promises, or inducements made by either party or agent of either party that are not contained in this written Agreement shall be valid or binding. No modification of this Agreement is binding on either party unless such modification is in writing and signed by both parties.
24. Assignment and Subcontracting.
    Neither party may assign this Agreement or any of its rights, duties or obligations, without the prior written consent of the other party. Such consent shall not be unreasonably withheld. CARRIER IS EXPRESSLY PROHIBITED FROM BROKERING, TRANSFERRING OR INTERLINING ANY SHIPMENTS UNDER THIS AGREEMENT TO ANY OTHER CARRIER WITHOUT THE BROKER'S PRIOR WRITTEN CONSENT.
25. Notices.
    Unless otherwise provided herein, notices to be given pursuant to this Agreement shall be in writing and sent either by first class U.S. Mail, Canada Post ExpressPost, or overnight courier, postage prepaid, and addressed to the respective party at the following addresses, or at such other addresses as one party may furnish to the other by written notice:
    • If notice is to Broker:
      Freight Managers, Inc.
      P.O. Box 29096
      Thunder Bay, ON
      Canada P7B 6P9
      Attn: Wayne VanderWees
      FAX #: (807) 474-4209
    • If notice is to Carrier:
      Address of head office provided in registration information provided

SCHEDULE "A"

SETTLEMENT OF CARGO CLAIMS

Filing of claims.

1. Minimum filing requirements. A written or electronic communication (when agreed to by the carrier and shipper or receiver involved) from a claimant, filed with a proper carrier within the time limits specified in the bill of lading or contract of carriage or transportation and:
   1. Containing facts sufficient to identify the baggage or shipment (or shipments) of property,
   2. Asserting liability for alleged loss, damage, injury, or delay, and
   3. Making claim for the payment of a specified or determinable amount of money, shall be considered as sufficient compliance with the provisions for filing claims embraced in the bill of lading or other contract of carriage; Provided, however, That where claims are electronically handled, procedures are established to ensure reasonable carrier access to supporting documents.
2. Documents not constituting claims. Bad order reports, appraisal reports of damage, notations of shortage or damage, or both, on freight bills, delivery receipts, or other documents, or inspection reports issued by carriers or their inspection agencies, whether the extent of loss or damage is indicated in dollars and cents or otherwise, shall, standing alone, not be considered by carriers as sufficient to comply with the minimum claim filing requirements specified in paragraph (b) of this section.
3. Claims filed for uncertain amounts. Whenever a claim is presented against a proper carrier for an uncertain amount, such as "$100 more or less," the carrier against whom such claim is filed shall determine the condition of the baggage or shipment involved at the time of delivery by it, if it was delivered, and shall ascertain as nearly as possible the extent, if any, of the loss or damage for which it may be responsible. It shall not, however, voluntarily pay a claim under such circumstances unless and until a formal claim in writing for a specified or determinable amount of money shall have been filed in accordance with the provisions of paragraph (b) of this section.
4. Other claims. If investigation of a claim develops that one or more other carriers has been presented with a similar claim on the same shipment, the carrier investigating such claim shall communicate with each such other carrier and, prior to any agreement entered into between or among them as to the proper disposition of such claim or claims, shall notify all claimants of the receipt of conflicting or overlapping claims and shall require further substantiation, on the part of each claimant of his/her title to the property involved or his/her right with respect to such claim.

Acknowledgment of claims.

1. Each carrier shall, upon receipt in writing or by electronic transmission of a proper claim in the manner and form described above, acknowledges the receipt of such claim in writing or electronically to the claimant within 30 days after the date of its receipt by the carrier unless the carrier shall have paid or declined such claim in writing or electronically within 30 days of the receipt thereof. The carrier shall indicate in its acknowledgment to the claimant what, if any, additional documentary evidence or other pertinent information may be required by it further to process the claim as its preliminary examination of the claim, as filed, may have revealed.
2. The carrier shall at the time each claim is received create a separate file and assign thereto a successive claim file number and note that number on all documents filed in support of the claim and all records and correspondence with respect to the claim, including the acknowledgment of receipt. At the time such claim is received the carrier shall cause the date of receipt to be recorded on the face of the claim document, and the date of receipt shall also appear in the carrier's acknowledgment of receipt to the claimant. The carrier shall also cause the claim file number to be noted on the shipping order, if in its possession, and the delivery receipt, if any, covering such shipment, unless the carrier has established an orderly and consistent internal procedure for assuring:
   1. That all information contained in shipping orders, delivery receipts, tally sheets, and all other pertinent records made with respect to the transportation of the shipment on which claim is made, is available for examination upon receipt of a claim;
   2. That all such records and documents (or true and complete reproductions thereof) are in fact examined in the course of the investigation of the claim (and an appropriate record is made that such examination has in fact taken place); and
   3. That such procedures prevent the duplicate or otherwise unlawful payment of claims.

Investigation of claims.

1. Prompt investigation required. Each claim filed against a carrier in the manner prescribed in this part shall be promptly and thoroughly investigated if investigation has not already been made prior to receipt of the claim.
2. Supporting documents. When a necessary part of an investigation, each claim shall be supported by the original bill of lading, evidence of the freight charges, if any, and either the original invoice, a photographic copy of the original invoice, or an exact copy thereof or any extract made therefrom, certified by the claimant to be true and correct with respect to the property and value involved in the claim; or certification of prices or values, with trade or other discounts, allowance, or deductions, of any nature whatsoever and the terms thereof, or depreciation reflected thereon; Provided, however, that where property involved in a claim has not been invoiced to the consignee shown on the bill of lading or where an invoice does not show price or value, or where the property involved has been sold, or where the property has been transferred at bookkeeping values only, the carrier shall, before voluntarily paying a claim, require the claimant to establish the destination value in the quantity, shipped, transported, or involved; Provided, further, that when supporting documents are determined to be a necessary part of an investigation, the supporting documents are retained by the carriers for possible inspection by the applicable governmental authorities.
3. Verification of loss. When an asserted claim for loss of an entire package or an entire shipment cannot be otherwise authenticated upon investigation, the carrier shall obtain from the consignee of the shipment involved a certified statement in writing that the property for which the claim is filed has not been received from any other source.

Disposition of claims.

1. Each carrier which receives a written or electronically transmitted claim for loss or damage to baggage or for loss, damage, injury, or delay to property transported shall pay, decline, or make a firm compromise settlement offer in writing or electronically to the claimant within 120 days after receipt of the claim by the carrier; Provided, however, that, if the claim cannot be processed and disposed of within 120 days after the receipt thereof, the carrier shall at that time and at the expiration of each succeeding 60-day period while the claim remains pending, advise the claimant in writing or electronically of the status of the claim and the reason for the delay in making final disposition thereof and it shall retain a copy of such advice to the claimant in its claim file thereon.

Processing of salvage.

1. Whenever baggage or material, goods, or other property transported by a carrier subject to the provisions in this part is damaged or alleged to be damaged and is, as a consequence thereof, not delivered or is rejected or refused upon tender thereof to the owner, consignee, or person entitled to receive such property, the carrier, after giving due notice, whenever practicable to do so, to the owner and other parties that may have an interest therein, and unless advised to the contrary after giving such notice, shall undertake to sell or dispose of such property directly or by the employment of a competent salvage agent. The carrier shall only dispose of the property in a manner that will fairly and equally protect the best interests of all persons having an interest therein. The carrier shall make an itemized record sufficient to identify the property involved so as to be able to correlate it to the shipment or transportation involved, and claim, if any, filed thereon. The carrier also shall assign to each lot of such property a successive lot number and note that lot number on its record of shipment and claim, if any claim is filed thereon.
2. Whenever disposition of salvage material or goods shall be made directly to an agent or employee of a carrier or through a salvage agent or company in which the carrier or one or more of its directors, officers, or managers has any interest, financial or otherwise, that carrier's salvage records shall fully reflect the particulars of each such transaction or relationship, or both, as the case may be.
3. Upon receipt of a claim on a shipment on which salvage has been processed in the manner prescribed in this section, the carrier shall record in its claim file thereon the lot number assigned, the amount of money recovered, if any, from the disposition of such property, and the date of transmittal of such money to the person or persons lawfully entitled to receive the same.