Portal Shipper Agreement
A. Agreement. By accessing or otherwise using the FreightMonster Portal™ Web-based software program which may include associated media, hardware, printed materials, and electronic documentation (collectively, the “Web-based Program”), you agree to be bound by the terms of this Shipper Agreement (this “Agreement”). If you do not agree to the terms of this Agreement, do not use or access this Web-based Program.
B. Meaning of “Shipper”. If the person accessing this Web-based Program uses it to transmit information on shipments of general commodities (“Goods”), “Shipper” means the person using this software. If the person accessing this Web-based Program is doing so in furtherance of the purposes of another person, including an organization (whether or not the employer or the person) then “Shipper” means both the person accessing this software and the other person, including an organization. No person accessing the software for another may do so unless the person accessing the software is authorized to bind the other person, including an organization, and failure to be so authorized will result in unauthorized use of the software subject to civil and criminal consequences.
C. The Parties of this Agreement. This document is a legal agreement between Shipper and Streamline, LLC (the “Company”), a Montana corporation with offices at 312 Oertli Lane, Hamilton, Montana 59840, USA. Shipper and The Company are sometimes collectively referred to as the “Parties”.
D. Nature of this Agreement. Shipper hereby retains The Company to arrange for the transportation of certain general commodities (“Goods”) by motor carrier (“Carriers”). The Company is authorized by MC 423598 to arrange for transportation of general commodities by Carriers. The Parties enter into this Agreement in accordance with 49 U.S.C. § 14101(b)(1) and expressly waive any and all rights and remedies that each may have under 49 U.S.C. §§ 13101 through 14914 that are contrary to specific provisions of the Agreement.
Services. The Company agrees to arrange for transportation services pursuant to the circumstances and rates that will be fully set forth in a load-specific rate communicated and agreed upon by the Shipper in either electronic form or in writing (the “Customer Rate Confirmation”). The Agreement applies to all services arranged by The Company on behalf of Shipper (“Services”). The Company’s responsibility under the Agreement is limited to arranging for, but not actually performing, transportation of Goods. The Company may arrange for transportation for entities other than Shipper.
Fees. In addition to the rate described in The Customer Rate Confirmation, Shipper agrees to pay any and all of the following fees that may apply:
If Shipper orders services which are not used, Shipper agrees to pay an additional $150.
If The Carrier is required to wait for loading or unloading (“Detention”) for more than four hours, Shipper agrees to pay an additional $75 per hour that The Carrier is required to wait .
Detention of any “oversize, overweight or over-length” load shall be subject to a base rate of $500 per day for a vehicle having up to 5 axles, with vehicles having more axles being charged an additional $100 per axle per day.
Rate adjustments or additional fees (including but not limited to, permit fees, route survey costs, and escort fees) may apply for Detention or if weights and dimensions of freight are inaccurate.
Shipper is responsible for any services required to allow admission to a port (including, but not limited to, equipment washing).
Independent Contractor Relationship. The Parties understand and agree that the relationship between the Parties is and will remain that of independent contractors and that no employer-employee or principal-agent relationship exists or is intended.
The Company Compensation. The Company will invoice Shipper for the Services. Shipper agrees to pay The Company before delivery of Goods unless the Parties have agreed otherwise in writing. The Company may assess a service charge of 1½% per month (or the highest lawful rate, if less) on any late payments. If Shipper does not pay the invoiced amounts, The Company may commence a civil action to recover such invoiced amounts within 24 months of delivery or tender of delivery of the shipments involved and shall be entitled to recover its reasonable attorneys’ fees and costs.
Bills of Lading and Shipping Documentation. If requested by Shipper, The Company will provide Shipper with proof of acceptance and delivery of shipments by Carrier in the form of a signed Bill of Lading or Proof of Delivery. Shipper’s insertion of The Company’s name on any bill of lading or shipping document will be for Shipper’s convenience only and will not change The Company’s status as a The Company. The terms and conditions of any documentation used by Shipper or a Carrier will not supplement, alter, or modify the terms of the Agreement.
Cargo Loss, Damage, and Delay. Shipper understands and agrees that The Company is not a motor carrier or freight forwarder and that The Company will not be liable for loss, damage, or delay in connection with the transportation of Goods. If requested by Shipper and agreed by The Company, The Company may assist Shipper in the filing and processing of claims with Carriers. Shipper acknowledges that Carriers will not be liable for damage to, loss or, or delay in the transportation of Goods to the extent that the same is caused by: (1) any act or default of any Shipper, consignee, consignor, or beneficial owner of Goods, including, but not limited to, packaging, loading, unloading, blocking, bracing or securing of Goods, (2) inherent vice or defect in Goods, including rusting of metals, swelling of wood caused by humidity, moisture or condensation, or deterioration of perishable products; (3) an act of God or the public enemy; (4) any act taken under authority of law; or (5) any act of war or terrorism. Shipper acknowledges that any claim for cargo loss, damage, or delay must be filed against a Carrier within 9 months of the date of delivery of Goods or, in the case of non-delivery, within 9 months of the date delivery should have been made. Notice to The Company does not constitute filing of claim with the Carrier. Any suit or other legal action to recover for cargo loss, damage, or delay, must be commenced against the Carrier no later than 2 years after declination of the cargo claim by Carrier.
Consequential Damages. Under no circumstances will The Company or Carrier be liable to Shipper for any consequential, indirect, incidental, or punitive damages of any kind.
Shipper’s Obligations. Shipper is responsible for ensuring that Goods are properly and safely loaded, supported, blocked, braced and secured. Shipper will be responsible for expenses arising out of any load shift that occurs during transportation due to improper or insufficient loading, blocking, or bracing. Shipper must provide necessary shipping instructions and properly identify all Goods, weights, and dimensions in the bill of lading or other shipping instructions. Shipper will not tender any restricted commodities including, but not limited to, hazardous materials and waste, oversize or overweight shipments, coiled or rolled products or commodities requiring protection from heat or cold, without properly identifying such shipments and making necessary prior arrangements for transportation. For any shipping that involves “oversize, overweight or over-length” items, any services required to allow admission to ports, such as equipment washing or port entry fees, may be billed to Shipper. Shipper is responsible for properly counting and recording the number of pieces transported and applying a protective seal to the loaded equipment. Shipper is responsible for checking all empty containers or trailers tendered for loading and rejecting any equipment that is not in apparent suitable condition to protect and preserve the Goods during transportation. If Shipper requests that The Company arrange for equipment to be dropped at a location for Shipper’s convenience and left unattended by Carrier, Shipper and its consignors or consignees will not lose, damage, or misuse the equipment and Shipper will pay for loss or damage to the equipment occurring during or as a result of such custody, control, possession, or use of the equipment. Shipper agrees not to contract with or engage in business directly with Carriers selected by The Company or found by the Shipper’s use of the Web-based Program. However, Shipper is not restricted from tendering shipments to other than those selected by The Company or found by the Shipper’s use of the Web-based Program.
Indemnification. Shipper shall defend, indemnify and hold The Company, The Company’s employees and agents, and Carriers harmless against any losses caused by or resulting from (i) Shipper’s or Shipper’s employees’ or agents’ negligence or intentional misconduct, (ii) Shipper’s breach of the Agreement, or (iii) Shipper’s or Shipper’s employees’ or agents’ violation of applicable laws or regulations. Shipper shall also indemnify The Company from any attempts to recover from The Company by Shipper’s insurance carrier or any other party in regards to claims for loss, damage, or delay in the delivery of Goods. The obligation to defend includes payment of all reasonable costs of defense, including attorney fees, as they accrue.
Insurance. The following insurance policies must be maintained during all terms of the Agreement:
Shipper: (1) Shipper’s interest “All Risk” coverage for damage to, loss of, or delay in transportation of Goods; (2) Workers Compensation Insurance; (3) Employer’s Liability Insurance; and (4) Commercial General Liability Insurance.
The Company: (1) Worker’s Compensation Insurance; (2) Employer’s Liability Insurance; and (3) Commercial General Liability Insurance.
Carriers: The Company will contractually require Carriers to maintain the following insurance: (1) Worker’s compensation insurance in statutorily required amounts; (2) Occurrence based Truckers Policy or Automobile Liability Insurance with limits of $750,000 per occurrence, and Hazardous Materials coverage of not less than $5,000,000 per occurrence if applicable; and (3) Occurrence based cargo insurance with limits of liability of not less than $100,000 per shipment. The Company’s sole obligation is to obtain a certificate of insurance from the Carriers’ insurers reflecting the foregoing types and amounts of insurance. The Company makes no representations or warranties regarding coverage or what exclusions or limitations any particular insurance policy may have.
Term and Termination. The term of the Agreement shall begin immediately on the use of the Web-based Program and continue until terminated, with or without cause, by either Party giving the other Party sixty (60) days’ prior written notice. If either Party breaches the Agreement, the other Party may terminate the Agreement by giving 30 days’ written notice, if the breach is not cured within that time period. If either Party files a petition for or declares bankruptcy, reorganization or other similar relief from its creditors, the other Party shall have the right, subject to applicable federal bankruptcy law, to continue to enforce the Agreement or to terminate it immediately upon ten (10) days’ written notice to the bankrupt or insolvent Party.
Notice. Unless otherwise provided, notices provided under this Agreement must be in writing and delivered by (i) certified mail, return receipt requested, (ii) hand delivered, (iii) facsimile with receipt of a “Transmission OK” acknowledgment, (iv) registered or certified U.S. mail, or (v) delivery by a reputable overnight carrier service (in the case of delivery by facsimile, the notice must be followed by a copy of the notice delivered as provided in (i), (ii) or (v)). The notice will be deemed given on the day the notice is received. In the case of notice by facsimile, the notice is deemed received at the local time of the receiving machine, and if not received, then the date the follow-up copy is received. Notices must be delivered to the following addresses or at such other addresses as may be later designated by notice:
Confidentiality. Either Party may be in or come into possession of information or data which constitutes trade secrets, know-how, confidential information, marketing plans, pricing, or anything else otherwise considered proprietary or secret by the other (“Confidential Information”). In consideration of the receipt of such Confidential Information and potential business, each Party agrees to protect and maintain such Confidential Information in the utmost confidence, to use such Confidential Information solely in connection with their business relationship, and, to take all measures reasonably necessary to protect the Confidential Information. Shipper agrees that The Company’s costs for Services is confidential and need not be disclosed to Shipper. Shipper specifically waives any rights it may have under 49 C.F.R. § 371.3. This mutual obligation of confidentiality will remain in effect during the terms of the Agreement and for a period of two years following any termination.
Miscellaneous. If any part of the Agreement is declared by a court to be invalid, such decision shall not affect the validity of any remaining portion of the Agreement. The failure of either Party to enforce any of the rights given to it under the Agreement shall not be construed as a waiver of that right. The Agreement is governed by and construed in accordance with the applicable federal laws of the United States or, alternatively, the laws of the State of Montana. The parties agree to jurisdiction and venue in the United States District Court located in the District of Montana or, if federal jurisdiction is not available, in state court located in Ravalli County. If performance by one Party is affected by any condition beyond the reasonable control of such Party, the performance of obligations under the Agreement (other than Shipper’s obligation to pay for Services performed) affected by such condition will be suspended during the continuance of such condition. The Carriers engaged by The Company will be permitted an extension period equal to the period of suspension in order to complete shipments adversely affected by the suspension. Neither Party will incur any liability for damages resulting from such suspensions.