Carrier Transport Services Agreement

CARRIER TERMS AND CONDITIONS 

These terms and conditions (“Terms”) shall apply to and be incorporated into any executed purchase order or Bill of Lading (together with these Terms, the “Agreement”) for shipping services provided by a carrier (“Carrier”) to Latch Systems, Inc. or its affiliates (“Shipper”).

 

  1. Operating Authority. Carrier represents and warrants to Shipper that it is a motor carrier duly qualified, authorized, permitted and registered under applicable federal and state statutes and regulations to lawfully and responsibly transport freight of all kinds, classes and descriptions in interstate or, if required hereunder, intrastate, commerce from, to or between points and places in the United States and Canada. Carrier covenants and represents that it will promptly notify Shipper in writing of any Federal Motor Carrier Safety Administration notice of a proposed safety rating other than “satisfactory”.  Carrier shall keep and maintain all federal, state and local permits and registrations in full force and effect for the term of the Agreement, and will notify Shipper in writing immediately upon learning of any suspension, cancellation, termination, withdrawal, modification or transfer of said registrations and/or permits or any portions(s) thereof.

 

  1. Hazardous Materials. Carrier acknowledges that the Services hereunder shall not include the transportation of Hazardous Materials, as defined in the Hazardous Materials Transportation Act, 49 U.S.C. 5101 et seq., as amended, and the regulations of the U.S. Department of Transportation made thereunder.  

 

  1. Tender of Shipments. Subject to the terms and conditions of this Agreement, Shipper agrees that it may tender shipments to Carrier for transportation in interstate or intrastate commerce between points and places in the United States as directed by Shipper (“Shipment”).  The Carrier agrees to accept any such Shipment and to transport and deliver each Shipment promptly and efficiently at Carrier’s sole risk, cost, and expense and in accordance with this Agreement. Shipper shall designate the point of origin and destination for each Shipment and shall stipulate the point or points where stop-offs, if any, shall be made for partial unloading. 

 

  1. Receipts; Bills of Lading. Each Shipment shall be evidenced by a receipt which shall be signed by Carrier showing the kind and quantity of commodities or goods received by Carrier at origin.  In the event that Shipper elects to use a Bill of Lading, manifest or other form of freight receipt, the terms thereof shall be subject and subordinate to the terms of this Agreement, which shall govern in the event of any conflict.

 


  1. Carrier’s and Shipper’s Operations and Employees. Carrier shall, at its sole cost and expense, furnish all supplies and equipment necessary for the discharge of its obligations under this Agreement, including all fuel, oil and other supplies and equipment (“Equipment”), and shall maintain such Equipment in good condition and repair.  Carrier shall employ in the operation of the Equipment only competent and properly licensed and permitted personnel and shall operate and maintain the Equipment in compliance with all applicable Federal, state and local laws and regulations, and will procure and maintain in effect all federal, state and local licenses and permits required for performance of the Services.  Carrier shall comply with all laws and regulations governing such personnel; obtain comprehensive driving and criminal record background reports on such personnel; and conduct drug tests on such personnel, all in a manner consistent with Carrier’s legal obligations.  Carrier agrees to comply with all applicable laws, rules and regulations, including, without limitation, all statutory and regulatory U.S. trade control laws. Carrier specifically agrees to comply with the U.S. Customs and Border Protection Against Terrorism (C-TPAT) program and upon request by Shipper, Carrier will provide Shipper with necessary documentation reflecting such compliance, including its C-TPAT account number. 

  

  1. Compensation. As full compensation for the services provided by Carrier, Shipper, or its designee shall pay Carrier in accordance with the rates and charges as agreed by the parties in writing. Carrier’s rates shall include all costs relative to fuel charges, equipment operation and maintenance charges, personnel costs and other charges including any sales, use or excise taxes.

 

  1. Invoices and Payment. Shipper shall have the right to specify whether the charges payable to Carrier for any Shipment hereunder shall be paid by Shipper or by any person or entity designated by Shipper, and Carrier agrees to prepare and render its invoices accordingly. Whenever Shipper specifies that charges for any Shipment shall be paid by a person or entity other than Shipper, Shipper shall have the further right to require Carrier to collect all or any portion of such charges from such person or entity without recourse to Shipper. Unless otherwise set forth on the applicable invoice, all charges due under this Agreement shall be payable within with thirty (30) days from Shipper’s receipt of the invoice.

 

  1. No Lien. Carrier hereby waives its right to any lien, upon any Shipment or portion thereof.

 


  1. Independent Contractor. Carrier shall perform the Services hereunder as an independent contractor of the Shipper, with the Carrier having exclusive control and direction of the persons operating the Equipment or otherwise engaged in the performance of the Services, including the manner in which the Services are performed.  Carrier assumes full responsibility for the payment, acts and omissions of such persons, including payment of all applicable Federal, state and local payroll taxes, contributions to taxes for unemployment insurance, old age pensions, worker’s compensation, Social Security, or other related payments with respect to persons engaged in the performance of the Services.

 

  1. Force Majeure. In the event performance by one party is affected by any cause beyond the reasonable control of such party, and provided that the applicable cause is not attributable to the acts or omissions of such party, and such party is taking reasonable measures to remove or mitigate the effects of the applicable cause, then the running of all periods of time mentioned herein and the performance of all obligations required herein shall be suspended during the continuance of such interruption, and such party shall promptly notify the other party of such interruption.   Carrier shall be permitted an extension period equal to the period of suspension to complete Shipments adversely affected by the suspension.  No liability shall be incurred by either party for damages resulting from such suspensions.   

 


  1. CARRIER’S Indemnity Agreement.  CARRIER AGREES TO INDEMNIFY, DEFEND AND HOLD HARMLESS SHIPPER, SHIPPER’S AFFILIATES, SUBSIDIARIES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS,  EMPLOYEES AND AGENTS (COLLECTIVELY FOR PURPOSES OF THIS SECTION 12, THE "INDEMNITEES"), FROM AND AGAINST ANY AND ALL CAUSES OF ACTION, SUITS, CLAIMS, LIABILITIES, LOSSES, DAMAGES, AND COSTS, INCLUDING, BUT NOT LIMITED TO, ATTORNEYS' FEES, COURT COSTS AND EXPENSES INCURRED IN THE INDEMNITEES' DEFENSE (COLLECTIVELY REFERRED TO AS "LOSS"), ALLEGED TO ARISE OUT OF OR IN CONNECTION WITH (A) The NEGLIGENCE OR WILLFUL MISCONDUCT OF THE CARRIER, ITS CONTRACTORS, OR THEIR RESPECTIVE AGENTS AND EMPLOYEES or (B) cARRIER’S BREACH OF ANY OBLIGATION OR WARRANTY CONTAINED IN THIS AGREEMENT.

 

  1. Insurance Coverage. Carrier agrees to maintain with companies acceptable to the Shipper the insurance set forth below.  Insurance certificates evidencing the coverage and requirements of this paragraph 13 shall be delivered to the Shipper along with the Carrier executed original of this Agreement. 

 


              12.1          Worker’s Compensation Insurance affording statutory limits in all states where Carrier’s vehicles will be operated and for every state in which Carrier’s transportation services shall be provided or performed.  If Carrier does not maintain Workers Compensation insurance as permitted by local state statutes, carrier must maintain Occupational Injury and Employers Indemnity insurance providing medical and wage replacement benefits for Carrier’s employees.

 

              12.2          Employer’s Liability Insurance with a limit not less than Two Million Dollars ($2,000,000.00) each accident.  

 

              12.3          Commercial General Liability (“CGL”) Insurance written on an “Occurrence” form covering bodily injury, personal injury and property damage, affording limits no less than Two Million Dollars ($2,000,000.00) for each occurrence.  Contractual liability coverage afforded under the policy shall have no exclusions for any contracts related to the transportation services being rendered hereunder.

 

              12.4          Automobile Liability Insurance for bodily injury and property damage affording combined single limits no less than One Million Dollars ($1,000,000.00) each accident, covering all owned, non-owned and hired autos and automotive equipment.  Coverage shall include coverage for Carrier’s responsibilities under the Federal Motor Carrier Act (evidenced by Carrier’s Form MCS90 endorsement) and other applicable Federal, state and local laws.

 


12.5          If Carrier’s transportation services to be rendered hereunder are to be provided outside the 48 contiguous states of the United States, carrier shall maintain Foreign Liability Insurance (including General Liability, Auto Liability and Employer’s Responsibility) providing coverage for Carrier’s operations, including the operations and services of Carrier’s subcontractors and agents.  Coverage shall afford limits no less than as may be required by applicable local laws, ordinances, orders, rules and regulations, however, in no event less than One Million Dollars ($1,000,000.00) each occurrence for bodily injury, personal injury, property damage and employer’s responsibility.

 

              12.6          Cargo Insurance, for all property or cargo other than sand, gravel, aggregate, top soil or similarly constituted materials, for loss of or damage to property while in the custody, possession or control of Carrier in an amount not less than One Hundred Thousand Dollars ($100,000.00).

 

The policies required under paragraphs 12.3, 12.4 and 12.5 shall be endorsed to name Latch Systems, Inc. as Additional Insured on a primary and non-contributory basis to any insurance which may be maintained by the Additional Insureds. The additional insured endorsements may not exclude or restrict coverage for negligence as may be imputed against or alleged of the Additional Insured.  Certificates of Insurance issued to Shipper will reflect the foregoing requirements and shall contain an endorsement that such insurance will not be cancelled or reduced in coverage without thirty (30) days prior written notice to Shipper.  All policies of insurance shall contain a waiver of subrogation endorsement in favor of the Additional Insured. 

 

The liability of Carrier is not limited by the insurance coverage required of Carrier.  The obligation of Carrier to provide insurance shall never be diminished by the Certificate of Insurance, nor shall the obligation be waived or altered in any way by the action or inaction of the Shipper in permitting Carrier to perform services unless expressly waived in writing in accordance with this Agreement.

 

Carrier acknowledges and agrees that any insurance policy of Shipper is solely intended for the benefit of Shipper and third parties shall have no rights there under.

 

  1. Freight Loss or Damage.

 


              13.1          Carrier shall be liable to Shipper for the full actual loss or damage to Shipments occurring while in the custody, possession or control of Carrier or resulting from Carrier’s performance of or failure to perform the Services provided for in this Agreement, regardless of any released rate values, or limitations of any kind, that Carrier may have set forth in tariffs, published rates, or its bills of lading.  Shipper shall have no obligation to notify Carrier of the value of any Shipment tendered to Carrier pursuant to this Agreement.  Subject to the foregoing, if any Shipment or part thereof is lost, damaged or destroyed, the Carrier shall be responsible to Shipper for the actual value or injury to the Shipment and such liability shall not be limited pursuant to 49 U.S.C. 14706, the Carmack Amendment. 

 

              13.2          Shipper shall submit to Carrier a written claim for loss of or damage to any Shipment within nine (9) months after delivery by Carrier of such Shipment with respect to which such claim is made, and any action at law to recover for such loss or damage shall be instituted against Carrier no later than two (2) years from the date of delivery (or scheduled delivery) by Carrier of such Shipment.  Carrier agrees to acknowledge in writing each such claim within thirty (30) days of its receipt and to pay such claim, if warranted, within sixty (60) days of its receipt thereof. 

 


  1. Jurisdiction and Venue; Governing Law. This Agreement shall be construed in accordance with the laws of the state of New York.   For all disputes, lawsuits, or other legal proceedings arising out of this Agreement or the business relationship of the parties hereto, the parties agree that the exclusive venue shall be New York County, New York.  If any provision of this Agreement shall be invalid or unenforceable to any extent, then the other provisions of this Agreement and the provision in question, to the extent valid and enforceable, shall not be affected thereby and shall be enforced to the greatest extent permitted by law.  This Agreement may be executed in counterparts, and when so executed shall constitute one Agreement, binding on both of the parties hereto, notwithstanding that both parties are not signatory to the original or the same counterpart.  The parties desire that the provisions of this Agreement will have precedence over any federal or state provisions governing or dealing with the specific provisions of this Agreement.  The parties agree that pursuant to 49 U.S.C. 14101(b)(1), they expressly waive any and all rights and remedies under the Interstate Commerce Commission Termination Act and Interstate Commerce Act as amended, and regulations promulgated thereunder, including Part B of Subtitle IV Interstate Transportation, 49 U.S.C. 13101, et seq, (the “Acts”) that are inconsistent with the provisions of this Agreement, including the rights of Carrier’s to limit liability pursuant to the Carmack Amendment, 49 U.S.C. 14706.  No party shall challenge any provision of this Agreement on the ground that any such provision or provisions violates the waived rights and remedies under the Acts. 

 

  1. Notices. All notices, demands or other communications of any type given or required to be given pursuant to this Agreement shall be in writing and delivered to the other party either (i) in person, (ii) sent by a recognized overnight service for next day delivery, (iii) by United States certified mail, return receipt requested, postage prepaid to the addresses below or (iv) by electronic mail to the parties contact information set forth on the applicable purchase order or bill of lading. If to Shipper, a copy of the notice shall be emailed to legal@latch.com.

 

All notices under this Agreement will be deemed to have been duly given, if by electronic mail, when sent to other party’s email address above, if by one of the other delivery methods set forth above, upon delivery at the time of delivery except in the event an addressee refuses delivery in which case notice shall be deemed completed on the date delivery is refused or, in the case of certified mail, three (3) days after the date upon which the notice was deposited with the United States mail as described above. Either party may change its address by written notice to the other party.

 

  1. Assignment. Neither party hereto may assign or transfer this Agreement or any interest arising hereunder, without the prior written consent of the other party. Notwithstanding the foregoing, either party may assign the Agreement in the event of a merger, reorganization, or the sale of majority of the assets or equity interests in the assigning party.

 

  1. Modification of Agreement. This Agreement completely and exclusively states the rights and obligations of the parties hereto with respect to the subject matter hereof and supersedes all other agreements, oral or written, with respect to such subject matter.  No modification of this Agreement and no waiver of any of its terms, conditions or provisions shall be valid or binding, except as expressly provided herein, unless in writing duly executed by both parties hereto.

 

  1. Confidentiality. Except and to the extent required by lawful authority, the existence of this Agreement, its terms and conditions, and all information pertaining to each Shipment hereunder, shall be confidential and shall not be disclosed by Carrier or Shipper without the prior written consent of the other.  Any unauthorized disclosure may be treated as a material breach of this Agreement.

 

  1. Severability. To the extent permitted by applicable law, if any provision hereof is held to be illegal, invalid or unenforceable, it shall be fully severable; this Agreement shall be construed and enforced as if such provision had never comprised a part hereof; and the remaining provisions hereof shall remain in full force and effect and shall not be affected by the illegal, invalid or unenforceable provision or by its severance herefrom.

 

  1. Waiver of Breach. The waiver of either party to this Agreement of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach by such party.             

 


  1. Survival. Paragraphs 11, 15, 18 and 21 hereof shall survive the termination or cancellation of this Agreement.