TERMS & CONDITIONS FOR TRANSPORTATION & LOGISTICS SERVICES
The Terms & Conditions of this Transportation and Logistics Service Agreement (“Agreement”) are made effective on the date the associated credit application was endorsed and dated (“Effective Date”), by and between the individual and/or business representative and/or business entity whom completed, endorsed, and dated the associated credit application (hereinafter referred to as “SHIPPER”) and Koch Logistics, a division of Stan Koch & Sons Trucking, Inc. with its principal office located at 4200 Dahlberg Drive, Golden Valley, Minnesota, 55422 (hereinafter referred to as “KOCH”).
KOCH is authorized as a property broker to arrange for the interstate transportation of property by motor carrier under MC-146969 from the Federal Motor Carrier Safety Administration (“FMCSA”), and further arranges for the intrastate transportation of property; and SHIPPER desires to engage KOCH to provide property brokerages services as more fully set forth under the terms and conditions below. By endorsing and submitting the corresponding credit application, Shipper agrees as follows:
ARTICLE 1: SERVICES
1.1 During the term of this Agreement, SHIPPER agrees to engage KOCH to provide logistics consulting, transportation management services and property brokerage services and to tender property (“Commodities”) for transportation by motor carriers through KOCH as an intermediary (“Services”) as provided for under this Agreement, and to be further specified and later included on a Schedule A which will then be attached hereto and incorporated by reference. KOCH agrees to arrange for the intrastate and interstate transportation of SHIPPER’s Commodities through the selection of duly authorized motor carriers. During the term of this Agreement, SHIPPER agrees to utilize KOCH exclusively to arrange the transportation for all of its outbound shipments from the points specified on Schedule A. SHIPPER agrees to delegate to KOCH complete working control over each shipment of Commodities and to pay KOCH as set forth in Article 3 below. Commodities which have been arranged to be transported by KOCH for SHIPPER, whether received directly from SHIPPER or from a third-party, shall be governed by the terms and conditions of this Agreement.
1.2 KOCH agrees to arrange for the transportation of Commodities which have been classified by the United States Department of Transportation, and analogous regulatory agencies, as a hazardous material, hazardous substance or dangerous good under applicable law (collectively, “Hazardous Materials”). SHIPPER shall comply with all applicable laws and regulations relating to the transportation of Hazardous Materials. SHIPPER is obligated to inform KOCH immediately if any shipment contains any Hazardous Materials. SHIPPER shall defend, indemnify, and hold KOCH harmless from any penalties or liability of any kind, including reasonable attorneys’ fees, arising out of SHIPPER’s failure to comply with applicable Hazardous Materials laws and regulations. KOCH will arrange a motor carrier which shall contractually agree to comply with all applicable federal, state and local laws and regulations, including the licensing and training of qualified drivers and equipment safety regulations, and with the loading, unloading, storage, handling and transportation requirements set forth in the applicable Material Safety Data Sheet (MSDS) or other instructions from SHIPPER. Upon receipt of notice from a motor carrier, KOCH will promptly notify SHIPPER by telephone or electronic mail of any incident or release involving any Hazardous Materials arranged to be transported under this Agreement.
ARTICLE 2: BILLS OF LADING
2.1 For each shipment tendered by SHIPPER under this Agreement, SHIPPER agrees to prepare a properly completed uniform bill of lading to be issued and executed by a motor carrier arranged by KOCH under this Agreement. The bill of lading shall be signed by the carrier showing the kind, quantity and condition of the property received at the point of origin. The Services shall be rendered pursuant to the instructions applied by SHIPPER to the bill of lading. In the event of any conflict or inconsistency between the terms and conditions of the bill of lading and this Agreement, the terms and conditions of this Agreement shall govern.
ARTICLE 3: RATES AND ACCESSORIAL CHARGES
3.1 For each shipment tendered by SHIPPER under this Agreement, SHIPPER agrees to pay KOCH in accordance with the rates and accessorial charges that will be discussed, agreed upon by both parties, and thus set forth in Schedule A. The rates and accessorial charges set forth on Schedule A may be adjusted without amending this Agreement. A pricing adjustment is effective upon notice to SHIPPER and such notice shall not be governed by the Notice provision contained herein, but rather may be effected by electronic mail or other written correspondence between the parties. SHIPPER is deemed to have accepted a pricing adjustment if it fails to object by written notice prior to the next shipment tendered to KOCH.
ARTICLE 4: SHIPMENT BY ORAL TERMS
4.1 If this Agreement does not have an applicable rate or accessorial charge specified on a Schedule A, as it may be amended, then SHIPPER shall pay KOCH at the rates and accessorial charges agreed to orally between SHIPPER and KOCH at or prior to the tender of a shipment. Promptly after SHIPPER and KOCH agree upon an oral rate, KOCH shall prepare a written confirmation of the rate and send it via electronic mail to SHIPPER. By accepting the shipment, KOCH and SHIPPER shall be deemed to have agreed to and accepted the confirmed oral rates and accessorial charges.
4.2 When any shipment moves subject to oral rates, and SHIPPER pays such charges and KOCH accepts such payment without providing written notice of objection thereto within 60 days of receipt of payment, then both parties will have waived their rights to later assert that the applicable rate or charge should have been higher or lower than the rate and charge originally paid.
ARTICLE 5: BILLING AND PAYMENT
5.1 KOCH shall invoice and collect all transportation and related charges from SHIPPER and remit monies due to the authorized motor carrier. SHIPPER agrees to pay KOCH within 30 days of invoice presentation. Failure by SHIPPER to pay KOCH within such time shall result in a late charge equal to 1.5% of the outstanding balance per month, or the maximum otherwise allowed by law. SHIPPER agrees it shall not have the right to offset amounts in dispute with motor carriers concerning claims or other disputes of any kind by deduction of said amounts from monies due KOCH.
5.2 Whenever the bill of lading or other shipping document specifies the rates and charges will be paid by a person, firm or corporation other than SHIPPER, KOCH agrees to render its invoice accordingly. KOCH shall not be precluded from collecting rates and accessorial charges from SHIPPER for such invoices if not timely paid.
ARTICLE 6: INSURANCE AND BROKER BOND
6.1 Unless otherwise requested by SHIPPER in writing to KOCH prior to a shipment, all motor carriers arranged by KOCH will be required to maintain public liability/property damage insurance and cargo insurance as required by applicable law. If SHIPPER requires that a motor carrier have excess cargo insurance, SHIPPER shall advise KOCH in writing that excess cargo insurance is required for a particular shipment, and the amount of insurance, at least 72 hours in advance of tendering the subject Commodities. If Schedule A contains any additional or contrary terms pertaining to Insurance, the terms of Schedule A shall control.
6.2 KOCH represents and warrants to SHIPPER it has and will continue to maintain throughout the term of this Agreement a current surety bond (Form BMC 84) or trust fund agreement (Form BMC 85) on file with the FMCSA. A copy of KOCH’s security shall be provided to SHIPPER upon request. KOCH shall provide SHIPPER with written notice of any change, modification or cancellation of such bond or trust fund agreement.
ARTICLE 7: CONTRACTS WITH CARRIERS
7.1 KOCH represents and warrants to SHIPPER that all motor carriers selected and engaged by KOCH to provide the actual transportation of SHIPPER’s property pursuant to this Agreement shall be subject to a separate written agreement between KOCH and each motor carrier. KOCH further represents and warrants that all agreements with such motor carriers shall contain terms and conditions relating to: (a) an obligation to transport Commodities in a timely manner as specified on the bill of lading; (b) an express waiver of any and all rights and remedies of the motor carrier against SHIPPER pursuant to 49 U.S.C. §14101(b); (c) rates and accessorial charges applicable to the transportation and related services to be performed appended as a schedule to KOCH’s contract and not dependent upon any motor carrier tariff; (d) automobile liability, commercial general liability, workers’ compensation and cargo liability insurance as required by law; (e) cargo liability based on 49 U.S.C. §14706; (f) non-recourse to SHIPPER for any non-payment of transportation charges; (g) indemnification by carrier in favor of KOCH and SHIPPER; and (h) a waiver of any statutory or common law lien, security interest or other encumbrance against the Commodities.
ARTICLE 8: COMPLIANCE WITH APPLICABLE LAW
8.1 SHIPPER and KOCH each agree to comply with all federal, state and local laws and regulations relating to their respective rights and obligations hereunder.
ARTICLE 9: FREIGHT CLAIMS
9.1 KOCH shall provide reasonable assistance in the filing, investigation, prosecution and administration of SHIPPER’s claims for freight loss and damage to Commodities against the motor carrier arranged by KOCH under this Agreement. All decisions regarding the filing and disposition of any freight loss and damage claims, including but not limited to, decisions regarding compromise, settlement and litigation of such claims, shall be made by SHIPPER. KOCH shall provide SHIPPER with all information reasonably requested by SHIPPER and other information reasonably necessary for SHIPPER to make an informed decision about the handling and disposition of any such claim. If SHIPPER determines to litigate any aspect of any freight loss or damage claim against a motor carrier arranged by KOCH under this Agreement, SHIPPER shall pay all costs and expenses incurred. All decisions of a claim with regard to strategy, disposition, or management shall be the exclusive election of KOCH. KOCH shall not be liable to SHIPPER for claims, including, but not limited to: (a) loss, damage or delay claims relating to Commodities; or (b) bodily injury or property damage claims asserted by a third-party against the carrier or SHIPPER.
ARTICLE 10: INDEMNIFICATION AND LIMITATION OF LIABILITY
10.1 Except to the extent caused by the negligence or intentional misconduct of KOCH, SHIPPER agrees to indemnify, defend and hold KOCH harmless of, from and against, any and all loss, cost, liability and claim, or any of the same, of any kind or nature whatsoever arising out of or relating to a shipment or in any way due to the acts or omissions of SHIPPER or its agents or employees, including court costs and reasonable attorneys’ fees (whether or not litigation is commenced) caused by, arising from or growing out of the performance of this Agreement or any shipment tendered hereunder. The obligations of SHIPPER under this Article shall survive the cancellation, termination or expiration of this Agreement.
10.2 NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, STATUTORY OR SPECIAL DAMAGES, INCLUDING LOST PROFITS, INCOME, OR OPPORTUNITY, EVEN IF THE PARTY IS ON NOTICE OF THE POSSIBILITY OF ANY SUCH DAMAGES OR FOR THE ACTS OR OMISSIONS OF ANY OTHER PERSON AND HOWEVER ARISING, INCLUDING FOR BREACH OF CONTRACT, TORT, NEGLIGENCE, WILLFUL OR INTENTIONAL ACTS OR OMISSIONS. THE TERMS OF THIS SECTION APPLY EVEN IF THEY CAUSE ANY REMEDY OTHERWISE AVAILABLE TO FAIL OF ITS ESSENTIAL PURPOSE AND WITHOUT REGARD TO A PARTY’S PERFORMANCE OF FAILURE OR DELAY OF PERFORMANCE.
ARTICLE 11: INDEPENDENT CONTRACTOR
11.1 It is mutually understood and agreed that KOCH and SHIPPER are entering into this Agreement as independent contractors. Nothing contained in this Agreement shall be construed to be inconsistent with such relationship or status. Neither party nor any personnel engaged by a party is authorized to act for or in any manner represent itself as an agent of the other or to conduct or enter into any agreement for or on behalf of the other party. KOCH specifically represents it is not acting as an agent for SHIPPER or any specific motor carrier for purposes of this Agreement or in conjunction with any transportation provided under this Agreement. KOCH is free to perform brokerage, transportation management and logistics consulting services for parties other than SHIPPER.
ARTICLE 12: SOLICITATION BY CARRIERS
12. SHIPPER understands that KOCH enters into agreements with motor carriers which may prohibit back solicitation of the SHIPPER by the carrier. SHIPPER agrees to notify KOCH within ten days in any event where a motor carrier has solicited the SHIPPER when that carrier has been used by KOCH for shipments on behalf of the SHIPPER within a period of one year prior to the event of solicitation.
ARTICLE 13: CONFIDENTIALITY
13.1 Each party shall consider this Agreement and all information relating to this Agreement as confidential and proprietary. In connection with the performance of Services hereunder, KOCH and SHIPPER may learn of certain trade secrets or other proprietary information of the other party or SHIPPER’s customers. Neither KOCH nor SHIPPER shall disclose any such confidential information to any third-party or use such confidential information other than in connection with the performance of Services under this Agreement, except as required by law or court order or with the prior written approval of the other party.
ARTICLE 14: TERM AND TERMINATION
14.1 This Agreement shall remain in effect for an initial period of one year from the Effective Date. Thereafter, this Agreement shall automatically renew for additional one-year periods, unless written notice of non-renewal is given by either party at least sixty (60) days prior to the expiration of the initial or a renewal period. Nothing in this section shall be construed as limiting, abridging or superseding any right of termination as may be specified in any other provision of this Agreement. KOCH may terminate this Agreement upon thirty (30) days’ notice to SHIPPER.
14.2 KOCH may terminate this Agreement at its discretion upon ten days prior written notice in the event of failure by SHIPPER to cure, to the satisfaction of KOCH, any of the following defaults within said notice period. Defaults giving rise the KOCH’s right to terminate under this Article are as follows:
a. SHIPPER’s failure to pay KOCH when due any payment required to be made under the terms of this Agreement;
b. SHIPPER’s failure to comply with any term or condition of this Agreement;
c. SHIPPER admitting in writing, to any party and in any context, the inability to pay its debts generally as they become due; or
d. SHIPPER becoming insolvent or consenting to the appointment of a receiver (or other similar official) of itself or of the whole or any substantial part of its property.
14.3 Immediate and automatic termination of this Agreement shall occur if either of the following defaults takes place:
a. SHIPPER’S filing of a petition in bankruptcy or petition to take advantage of any insolvency act; or
b. SHIPPER making an assignment for the benefit of its creditors or a petition in bankruptcy being filed against SHIPPER or it being adjudicated bankrupt in a court of competent jurisdiction.
14.4 Upon the effective date of any termination of this Agreement, SHIPPER shall pay in full any and all outstanding invoices, fees, costs or other sums incurred as of the date of termination.
14.5 Any duty or obligation which has been incurred under this Agreement and which has not been fully observed, performed or discharged, and any right which has been created under this Agreement and which has not been fully enjoyed, enforced or satisfied, shall survive notwithstanding the termination, expiration or cancellation of this Agreement, until such duty or obligation has been fully observed, performed or discharged and such right has been fully enjoyed, enforced, or satisfied.
ARTICLE 15: REMEDIES
15.1 After the occurrence of any event of default by SHIPPER set forth in Article 14, KOCH shall be entitled to terminate this Agreement as set forth herein and to pursue against SHIPPER any and all rights and remedies otherwise available at law or in equity, including a civil action to compel SHIPPER’s specific performance of SHIPPER’s obligations under this Agreement. Upon the effective date of any such termination of this Agreement, KOCH shall have no continuing obligation to provide Services to SHIPPER. Termination of this Agreement shall not affect SHIPPER’s liability to KOCH by reason of any act, default or occurrence prior to such termination or any liabilities or obligations of SHIPPER which survive the termination of this Agreement as provided in Article 14.5.
15.2 If either party institutes any action or proceeding based upon or arising out of this Agreement, the prevailing party in any such action or proceeding, whether or not such proceeding proceeds to final judgment or determination, shall be entitled to receive from the non-prevailing party as a cost of suit, and not as damages, all costs and expenses of prosecuting or defending the action or proceeding, including reasonable attorneys’ fees and expenses.
ARTICLE 16: FORCE MAJEURE
16.1 Neither party hereto shall be liable for any delay or failure of performance under this Agreement if such failure, delay or other omission is caused by strikes, acts of God, war, accidents, civil disorder or similar circumstances beyond the party’s reasonable control, except for the performance of any pecuniary duties herein, such as SHIPPER’S duty to pay accrued invoices.
ARTICLE 17: NOTICES
17.1 Unless otherwise specifically provided, all notices under this Agreement shall be in writing and delivered in person or sent by United States certified mail (return receipt requested), postage prepaid, and addressed to the other party as follows:
KOCH: SHIPPER:
Koch Logistics Address used will be the one provided on the
Attn: Legal Department associated credit application unless otherwise
2230 Energy Park Drive, St. Paul, MN 55108 notified in writing and addressed pursuant to this provision.
17.2 Any such notice is effective upon receipt by the addressee. Such addresses may be changed by either party upon written notice to the other party as provided in this Article.
ARTICLE 18: SUCCESSORS AND ASSIGNS
18.1 This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors in interest, assigns and legal representatives. SHIPPER shall not assign, transfer or delegate its duties under this Agreement to any person, firm or corporation without obtaining the prior written consent of KOCH, which may be withheld in KOCH’S sole discretion.
ARTICLE 19: AMENDMENT AND WAIVER
19.1 This Agreement may not be amended or modified except by written agreement between KOCH and SHIPPER signed by a duly authorized representative of both parties. No provision of this Agreement shall be waived by either party except by a writing signed by a duly authorized representative of the party to be charged. Either party’s failure, in any instance, to enforce or insist upon the other party’s performance or compliance of any of the terms, covenants or conditions of this Agreement or to exercise any right or privilege herein, or the written waiver by any breach of any of the terms, covenants or conditions of this Agreement, shall not be construed as thereafter waiving any such term, covenant, condition, right or privilege, but the same shall continue and remain in full force and effect as if no such forbearance or waiver had occurred.
ARTICLE 20: SEVERABILITY
20.1 This Agreement shall at all times be in compliance with federal and state law, rules and regulations applicable to the provision of property brokerage services. In the event any statute, ordinance or governmental rule or regulation shall apply to invalidate or supersede any of the terms and conditions of this Agreement, the remaining portions of this Agreement shall to the extent possible remain in full force and effect.
ARTICLE 21: ENTIRE AGREEMENT
21.1 This Agreement, including the subsequent Schedule A, states the entire agreement between the parties with respect to the subject matter hereof and supersedes all other agreements, oral or written, with respect to such subject matter. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party which are not embodied herein, and any such agreements, statement or promise not contained in this Agreement shall not be binding. As of the date of the accompanying credit application, all previous agreements concerning the same subject matter between the parties shall be canceled.
ARTICLE 21: LAW TO GOVERN
21.1 This Agreement shall be governed and construed in accordance with the laws of the State of Minnesota, unless superseded specifically by applicable federal laws and regulations. It is mutually agreed that either KOCH or SHIPPER shall exercise any right or remedy hereunder in the State of Minnesota, County of Hennepin or the United States District Court in Minnesota. EACH PARTY EXPRESSLY WAIVES ANY RIGHT IT MAY HAVE TO A JURY TRIAL IN ANY PROCEEDING ARISING UNDER OR RELATING TO THIS AGREEMENT.
The Terms & Conditions of this Transportation and Logistics Service Agreement (“Agreement”) are made effective on the date the associated credit application was endorsed and dated (“Effective Date”), by and between the individual and/or business representative and/or business entity whom completed, endorsed, and dated the associated credit application (hereinafter referred to as “SHIPPER”) and Koch Logistics, a division of Stan Koch & Sons Trucking, Inc. with its principal office located at 4200 Dahlberg Drive, Golden Valley, Minnesota, 55422 (hereinafter referred to as “KOCH”).
KOCH is authorized as a property broker to arrange for the interstate transportation of property by motor carrier under MC-146969 from the Federal Motor Carrier Safety Administration (“FMCSA”), and further arranges for the intrastate transportation of property; and SHIPPER desires to engage KOCH to provide property brokerages services as more fully set forth under the terms and conditions below. By endorsing and submitting the corresponding credit application, Shipper agrees as follows:
ARTICLE 1: SERVICES
1.1 During the term of this Agreement, SHIPPER agrees to engage KOCH to provide logistics consulting, transportation management services and property brokerage services and to tender property (“Commodities”) for transportation by motor carriers through KOCH as an intermediary (“Services”) as provided for under this Agreement, and to be further specified and later included on a Schedule A which will then be attached hereto and incorporated by reference. KOCH agrees to arrange for the intrastate and interstate transportation of SHIPPER’s Commodities through the selection of duly authorized motor carriers. During the term of this Agreement, SHIPPER agrees to utilize KOCH exclusively to arrange the transportation for all of its outbound shipments from the points specified on Schedule A. SHIPPER agrees to delegate to KOCH complete working control over each shipment of Commodities and to pay KOCH as set forth in Article 3 below. Commodities which have been arranged to be transported by KOCH for SHIPPER, whether received directly from SHIPPER or from a third-party, shall be governed by the terms and conditions of this Agreement.
1.2 KOCH agrees to arrange for the transportation of Commodities which have been classified by the United States Department of Transportation, and analogous regulatory agencies, as a hazardous material, hazardous substance or dangerous good under applicable law (collectively, “Hazardous Materials”). SHIPPER shall comply with all applicable laws and regulations relating to the transportation of Hazardous Materials. SHIPPER is obligated to inform KOCH immediately if any shipment contains any Hazardous Materials. SHIPPER shall defend, indemnify, and hold KOCH harmless from any penalties or liability of any kind, including reasonable attorneys’ fees, arising out of SHIPPER’s failure to comply with applicable Hazardous Materials laws and regulations. KOCH will arrange a motor carrier which shall contractually agree to comply with all applicable federal, state and local laws and regulations, including the licensing and training of qualified drivers and equipment safety regulations, and with the loading, unloading, storage, handling and transportation requirements set forth in the applicable Material Safety Data Sheet (MSDS) or other instructions from SHIPPER. Upon receipt of notice from a motor carrier, KOCH will promptly notify SHIPPER by telephone or electronic mail of any incident or release involving any Hazardous Materials arranged to be transported under this Agreement.
ARTICLE 2: BILLS OF LADING
2.1 For each shipment tendered by SHIPPER under this Agreement, SHIPPER agrees to prepare a properly completed uniform bill of lading to be issued and executed by a motor carrier arranged by KOCH under this Agreement. The bill of lading shall be signed by the carrier showing the kind, quantity and condition of the property received at the point of origin. The Services shall be rendered pursuant to the instructions applied by SHIPPER to the bill of lading. In the event of any conflict or inconsistency between the terms and conditions of the bill of lading and this Agreement, the terms and conditions of this Agreement shall govern.
ARTICLE 3: RATES AND ACCESSORIAL CHARGES
3.1 For each shipment tendered by SHIPPER under this Agreement, SHIPPER agrees to pay KOCH in accordance with the rates and accessorial charges that will be discussed, agreed upon by both parties, and thus set forth in Schedule A. The rates and accessorial charges set forth on Schedule A may be adjusted without amending this Agreement. A pricing adjustment is effective upon notice to SHIPPER and such notice shall not be governed by the Notice provision contained herein, but rather may be effected by electronic mail or other written correspondence between the parties. SHIPPER is deemed to have accepted a pricing adjustment if it fails to object by written notice prior to the next shipment tendered to KOCH.
ARTICLE 4: SHIPMENT BY ORAL TERMS
4.1 If this Agreement does not have an applicable rate or accessorial charge specified on a Schedule A, as it may be amended, then SHIPPER shall pay KOCH at the rates and accessorial charges agreed to orally between SHIPPER and KOCH at or prior to the tender of a shipment. Promptly after SHIPPER and KOCH agree upon an oral rate, KOCH shall prepare a written confirmation of the rate and send it via electronic mail to SHIPPER. By accepting the shipment, KOCH and SHIPPER shall be deemed to have agreed to and accepted the confirmed oral rates and accessorial charges.
4.2 When any shipment moves subject to oral rates, and SHIPPER pays such charges and KOCH accepts such payment without providing written notice of objection thereto within 60 days of receipt of payment, then both parties will have waived their rights to later assert that the applicable rate or charge should have been higher or lower than the rate and charge originally paid.
ARTICLE 5: BILLING AND PAYMENT
5.1 KOCH shall invoice and collect all transportation and related charges from SHIPPER and remit monies due to the authorized motor carrier. SHIPPER agrees to pay KOCH within 30 days of invoice presentation. Failure by SHIPPER to pay KOCH within such time shall result in a late charge equal to 1.5% of the outstanding balance per month, or the maximum otherwise allowed by law. SHIPPER agrees it shall not have the right to offset amounts in dispute with motor carriers concerning claims or other disputes of any kind by deduction of said amounts from monies due KOCH.
5.2 Whenever the bill of lading or other shipping document specifies the rates and charges will be paid by a person, firm or corporation other than SHIPPER, KOCH agrees to render its invoice accordingly. KOCH shall not be precluded from collecting rates and accessorial charges from SHIPPER for such invoices if not timely paid.
ARTICLE 6: INSURANCE AND BROKER BOND
6.1 Unless otherwise requested by SHIPPER in writing to KOCH prior to a shipment, all motor carriers arranged by KOCH will be required to maintain public liability/property damage insurance and cargo insurance as required by applicable law. If SHIPPER requires that a motor carrier have excess cargo insurance, SHIPPER shall advise KOCH in writing that excess cargo insurance is required for a particular shipment, and the amount of insurance, at least 72 hours in advance of tendering the subject Commodities. If Schedule A contains any additional or contrary terms pertaining to Insurance, the terms of Schedule A shall control.
6.2 KOCH represents and warrants to SHIPPER it has and will continue to maintain throughout the term of this Agreement a current surety bond (Form BMC 84) or trust fund agreement (Form BMC 85) on file with the FMCSA. A copy of KOCH’s security shall be provided to SHIPPER upon request. KOCH shall provide SHIPPER with written notice of any change, modification or cancellation of such bond or trust fund agreement.
ARTICLE 7: CONTRACTS WITH CARRIERS
7.1 KOCH represents and warrants to SHIPPER that all motor carriers selected and engaged by KOCH to provide the actual transportation of SHIPPER’s property pursuant to this Agreement shall be subject to a separate written agreement between KOCH and each motor carrier. KOCH further represents and warrants that all agreements with such motor carriers shall contain terms and conditions relating to: (a) an obligation to transport Commodities in a timely manner as specified on the bill of lading; (b) an express waiver of any and all rights and remedies of the motor carrier against SHIPPER pursuant to 49 U.S.C. §14101(b); (c) rates and accessorial charges applicable to the transportation and related services to be performed appended as a schedule to KOCH’s contract and not dependent upon any motor carrier tariff; (d) automobile liability, commercial general liability, workers’ compensation and cargo liability insurance as required by law; (e) cargo liability based on 49 U.S.C. §14706; (f) non-recourse to SHIPPER for any non-payment of transportation charges; (g) indemnification by carrier in favor of KOCH and SHIPPER; and (h) a waiver of any statutory or common law lien, security interest or other encumbrance against the Commodities.
ARTICLE 8: COMPLIANCE WITH APPLICABLE LAW
8.1 SHIPPER and KOCH each agree to comply with all federal, state and local laws and regulations relating to their respective rights and obligations hereunder.
ARTICLE 9: FREIGHT CLAIMS
9.1 KOCH shall provide reasonable assistance in the filing, investigation, prosecution and administration of SHIPPER’s claims for freight loss and damage to Commodities against the motor carrier arranged by KOCH under this Agreement. All decisions regarding the filing and disposition of any freight loss and damage claims, including but not limited to, decisions regarding compromise, settlement and litigation of such claims, shall be made by SHIPPER. KOCH shall provide SHIPPER with all information reasonably requested by SHIPPER and other information reasonably necessary for SHIPPER to make an informed decision about the handling and disposition of any such claim. If SHIPPER determines to litigate any aspect of any freight loss or damage claim against a motor carrier arranged by KOCH under this Agreement, SHIPPER shall pay all costs and expenses incurred. All decisions of a claim with regard to strategy, disposition, or management shall be the exclusive election of KOCH. KOCH shall not be liable to SHIPPER for claims, including, but not limited to: (a) loss, damage or delay claims relating to Commodities; or (b) bodily injury or property damage claims asserted by a third-party against the carrier or SHIPPER.
ARTICLE 10: INDEMNIFICATION AND LIMITATION OF LIABILITY
10.1 Except to the extent caused by the negligence or intentional misconduct of KOCH, SHIPPER agrees to indemnify, defend and hold KOCH harmless of, from and against, any and all loss, cost, liability and claim, or any of the same, of any kind or nature whatsoever arising out of or relating to a shipment or in any way due to the acts or omissions of SHIPPER or its agents or employees, including court costs and reasonable attorneys’ fees (whether or not litigation is commenced) caused by, arising from or growing out of the performance of this Agreement or any shipment tendered hereunder. The obligations of SHIPPER under this Article shall survive the cancellation, termination or expiration of this Agreement.
10.2 NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, STATUTORY OR SPECIAL DAMAGES, INCLUDING LOST PROFITS, INCOME, OR OPPORTUNITY, EVEN IF THE PARTY IS ON NOTICE OF THE POSSIBILITY OF ANY SUCH DAMAGES OR FOR THE ACTS OR OMISSIONS OF ANY OTHER PERSON AND HOWEVER ARISING, INCLUDING FOR BREACH OF CONTRACT, TORT, NEGLIGENCE, WILLFUL OR INTENTIONAL ACTS OR OMISSIONS. THE TERMS OF THIS SECTION APPLY EVEN IF THEY CAUSE ANY REMEDY OTHERWISE AVAILABLE TO FAIL OF ITS ESSENTIAL PURPOSE AND WITHOUT REGARD TO A PARTY’S PERFORMANCE OF FAILURE OR DELAY OF PERFORMANCE.
ARTICLE 11: INDEPENDENT CONTRACTOR
11.1 It is mutually understood and agreed that KOCH and SHIPPER are entering into this Agreement as independent contractors. Nothing contained in this Agreement shall be construed to be inconsistent with such relationship or status. Neither party nor any personnel engaged by a party is authorized to act for or in any manner represent itself as an agent of the other or to conduct or enter into any agreement for or on behalf of the other party. KOCH specifically represents it is not acting as an agent for SHIPPER or any specific motor carrier for purposes of this Agreement or in conjunction with any transportation provided under this Agreement. KOCH is free to perform brokerage, transportation management and logistics consulting services for parties other than SHIPPER.
ARTICLE 12: SOLICITATION BY CARRIERS
12. SHIPPER understands that KOCH enters into agreements with motor carriers which may prohibit back solicitation of the SHIPPER by the carrier. SHIPPER agrees to notify KOCH within ten days in any event where a motor carrier has solicited the SHIPPER when that carrier has been used by KOCH for shipments on behalf of the SHIPPER within a period of one year prior to the event of solicitation.
ARTICLE 13: CONFIDENTIALITY
13.1 Each party shall consider this Agreement and all information relating to this Agreement as confidential and proprietary. In connection with the performance of Services hereunder, KOCH and SHIPPER may learn of certain trade secrets or other proprietary information of the other party or SHIPPER’s customers. Neither KOCH nor SHIPPER shall disclose any such confidential information to any third-party or use such confidential information other than in connection with the performance of Services under this Agreement, except as required by law or court order or with the prior written approval of the other party.
ARTICLE 14: TERM AND TERMINATION
14.1 This Agreement shall remain in effect for an initial period of one year from the Effective Date. Thereafter, this Agreement shall automatically renew for additional one-year periods, unless written notice of non-renewal is given by either party at least sixty (60) days prior to the expiration of the initial or a renewal period. Nothing in this section shall be construed as limiting, abridging or superseding any right of termination as may be specified in any other provision of this Agreement. KOCH may terminate this Agreement upon thirty (30) days’ notice to SHIPPER.
14.2 KOCH may terminate this Agreement at its discretion upon ten days prior written notice in the event of failure by SHIPPER to cure, to the satisfaction of KOCH, any of the following defaults within said notice period. Defaults giving rise the KOCH’s right to terminate under this Article are as follows:
a. SHIPPER’s failure to pay KOCH when due any payment required to be made under the terms of this Agreement;
b. SHIPPER’s failure to comply with any term or condition of this Agreement;
c. SHIPPER admitting in writing, to any party and in any context, the inability to pay its debts generally as they become due; or
d. SHIPPER becoming insolvent or consenting to the appointment of a receiver (or other similar official) of itself or of the whole or any substantial part of its property.
14.3 Immediate and automatic termination of this Agreement shall occur if either of the following defaults takes place:
a. SHIPPER’S filing of a petition in bankruptcy or petition to take advantage of any insolvency act; or
b. SHIPPER making an assignment for the benefit of its creditors or a petition in bankruptcy being filed against SHIPPER or it being adjudicated bankrupt in a court of competent jurisdiction.
14.4 Upon the effective date of any termination of this Agreement, SHIPPER shall pay in full any and all outstanding invoices, fees, costs or other sums incurred as of the date of termination.
14.5 Any duty or obligation which has been incurred under this Agreement and which has not been fully observed, performed or discharged, and any right which has been created under this Agreement and which has not been fully enjoyed, enforced or satisfied, shall survive notwithstanding the termination, expiration or cancellation of this Agreement, until such duty or obligation has been fully observed, performed or discharged and such right has been fully enjoyed, enforced, or satisfied.
ARTICLE 15: REMEDIES
15.1 After the occurrence of any event of default by SHIPPER set forth in Article 14, KOCH shall be entitled to terminate this Agreement as set forth herein and to pursue against SHIPPER any and all rights and remedies otherwise available at law or in equity, including a civil action to compel SHIPPER’s specific performance of SHIPPER’s obligations under this Agreement. Upon the effective date of any such termination of this Agreement, KOCH shall have no continuing obligation to provide Services to SHIPPER. Termination of this Agreement shall not affect SHIPPER’s liability to KOCH by reason of any act, default or occurrence prior to such termination or any liabilities or obligations of SHIPPER which survive the termination of this Agreement as provided in Article 14.5.
15.2 If either party institutes any action or proceeding based upon or arising out of this Agreement, the prevailing party in any such action or proceeding, whether or not such proceeding proceeds to final judgment or determination, shall be entitled to receive from the non-prevailing party as a cost of suit, and not as damages, all costs and expenses of prosecuting or defending the action or proceeding, including reasonable attorneys’ fees and expenses.
ARTICLE 16: FORCE MAJEURE
16.1 Neither party hereto shall be liable for any delay or failure of performance under this Agreement if such failure, delay or other omission is caused by strikes, acts of God, war, accidents, civil disorder or similar circumstances beyond the party’s reasonable control, except for the performance of any pecuniary duties herein, such as SHIPPER’S duty to pay accrued invoices.
ARTICLE 17: NOTICES
17.1 Unless otherwise specifically provided, all notices under this Agreement shall be in writing and delivered in person or sent by United States certified mail (return receipt requested), postage prepaid, and addressed to the other party as follows:
KOCH: SHIPPER:
Koch Logistics Address used will be the one provided on the
Attn: Legal Department associated credit application unless otherwise
2230 Energy Park Drive, St. Paul, MN 55108 notified in writing and addressed pursuant to this provision.
17.2 Any such notice is effective upon receipt by the addressee. Such addresses may be changed by either party upon written notice to the other party as provided in this Article.
ARTICLE 18: SUCCESSORS AND ASSIGNS
18.1 This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors in interest, assigns and legal representatives. SHIPPER shall not assign, transfer or delegate its duties under this Agreement to any person, firm or corporation without obtaining the prior written consent of KOCH, which may be withheld in KOCH’S sole discretion.
ARTICLE 19: AMENDMENT AND WAIVER
19.1 This Agreement may not be amended or modified except by written agreement between KOCH and SHIPPER signed by a duly authorized representative of both parties. No provision of this Agreement shall be waived by either party except by a writing signed by a duly authorized representative of the party to be charged. Either party’s failure, in any instance, to enforce or insist upon the other party’s performance or compliance of any of the terms, covenants or conditions of this Agreement or to exercise any right or privilege herein, or the written waiver by any breach of any of the terms, covenants or conditions of this Agreement, shall not be construed as thereafter waiving any such term, covenant, condition, right or privilege, but the same shall continue and remain in full force and effect as if no such forbearance or waiver had occurred.
ARTICLE 20: SEVERABILITY
20.1 This Agreement shall at all times be in compliance with federal and state law, rules and regulations applicable to the provision of property brokerage services. In the event any statute, ordinance or governmental rule or regulation shall apply to invalidate or supersede any of the terms and conditions of this Agreement, the remaining portions of this Agreement shall to the extent possible remain in full force and effect.
ARTICLE 21: ENTIRE AGREEMENT
21.1 This Agreement, including the subsequent Schedule A, states the entire agreement between the parties with respect to the subject matter hereof and supersedes all other agreements, oral or written, with respect to such subject matter. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party which are not embodied herein, and any such agreements, statement or promise not contained in this Agreement shall not be binding. As of the date of the accompanying credit application, all previous agreements concerning the same subject matter between the parties shall be canceled.
ARTICLE 21: LAW TO GOVERN
21.1 This Agreement shall be governed and construed in accordance with the laws of the State of Minnesota, unless superseded specifically by applicable federal laws and regulations. It is mutually agreed that either KOCH or SHIPPER shall exercise any right or remedy hereunder in the State of Minnesota, County of Hennepin or the United States District Court in Minnesota. EACH PARTY EXPRESSLY WAIVES ANY RIGHT IT MAY HAVE TO A JURY TRIAL IN ANY PROCEEDING ARISING UNDER OR RELATING TO THIS AGREEMENT.
