BROKER CARRIER TERMS AND CONDITIONS

Terms and Conditions

1.               Applicability.  Unless expressly superseded by a written contract signed by an officer of CAP Logistics (“CAP”)  these Terms and Conditions, as amended from time to time (“T&Cs”), shall govern motor carrier service (“Services”) provided by any motor carrier (“Carrier”) performing motor carrier services at the request of CAP including, but not limited to, the motor carrier identified, pursuant to a Rate Confirmation Agreement (“RCA”) making reference to these T&Cs, regardless of whether this RCA is signed by Carrier.  Any terms and conditions on any transactional or shipment-specific document, including, but not limited to, any bill of lading, dock receipt or similar documentation exchanged between the parties other than an RCA and these T&Cs shall not apply to any Services and shall not be binding on or applicable to CAP.  CAP and Carrier represent and warrant that their relationship is that of independent contractors.  Carrier is responsible for the acts or omissions of any and all personnel providing or engaged to provide the Services.  Carrier acknowledges and agrees that all Services will be performed using motor vehicle equipment operating pursuant to Carrier’s for-hire motor carrier authority and that in no event will Carrier subcontract, CAP, interline, interchange or otherwise allow any third-party to transport any cargo or equipment tendered to Carrier hereunder.  In the event of any violation of this prohibition, without limiting any other rights or remedies of CAP under these T&Cs, CAP may make payment for the Services directly to the transporting carrier, which payment will relieve CAP of any and all obligation to pay Carrier for the services in question.

2.               Authorization and Compliance.  CAP is authorized to tender the cargo in question to Carrier for transportation. Carrier warrants and represents that it, and that any personnel used by Carrier in the performance of Services, at all times while Services are performed, holds any and all licenses, permits, authorizations and other qualifications necessary to perform the Services in accordance with all applicable laws, rules and regulations (“Applicable Law”).  All of Carrier’s services will be performed in accordance with Applicable Law.  To the extent allowable under Applicable Law, Carrier hereby waives its right to obtain copies of CAP’s records as provided for under 49 C.F.R. Part 371.

3.               Rates and Payments.  Carrier will charge and CAP will pay the rates and charges set forth in the RCA, which charges shall constitute the entire compensation due Carrier for Services provided subject to the RCA.  Payment will be made within thirty (30) days of receipt by CAP of Carrier’s freight bill which must be supported by the original proof of delivery.  The freight bill should be remitted to the address shown on the face of the RCA.  In no event will Carrier have any lien on any cargo transported pursuant to the RCA or otherwise withhold delivery of such cargo.

4.               Cargo Loss and Damage.  Carrier shall have the sole and exclusive care, custody and control of the cargo tendered hereunder from the time it is delivered to Carrier for transportation until delivery to the consignee accompanied by the appropriate receipts.  Carrier will be liable for cargo loss, damage or delay as a “carrier” pursuant to the Carmack Amendment as currently codified at 49 U.S.C. § 14706, which liability shall be for the full value of the commodities involved.  No limitation of liability shall apply to such liability, except that Carrier’s full value liability shall not exceed $100,000 per shipment unless agreed upon in writing by CAP and Carrier.  Carrier will provide at least nine (9) months from the date of delivery or the date delivery should have occurred, if none, for the claimant to file a claim for cargo loss, damage or delay, and at least two (2) years from the date of complete denial of the claim during which the claimant is entitled to commence legal action.  Carrier waives any right to salvage any cargo as well as any right to offset salvage value from its liability. 

5.               Insurance.  While performing services, unless greater amounts are required by law, Carrier shall maintain automobile liability and commercial general liability insurance each with limits of not less than $1,000,000 per occurrence, workers’ compensation insurance as required by law, and motor truck cargo insurance with limits of not less than $100,000 per occurrence which insurance shall contain no conditions to or exclusions from coverage likely to result in denial of claims arising from services to be provided hereunder. Upon request by CAP, Carrier shall provide copies of insurance certificates evidencing any insurance policy required hereunder.

6.               Indemnification.  CARRIER shall defend, indemnify, and hold CAP and its customer, and each of their affiliated entities harmless from and against all direct or indirect loss, liability, damage, claim, fine, cost or expense, including reasonable attorney’s fees, arising out of or in any way related to the performance of, or failure to perform, Carrier’s services, or breach of these T&Cs by Carrier, its employees or independent contractors working for Carrier (collectively, the “Claims”), provided, however, that Carrier’s indemnification and hold harmless obligations under this paragraph will not apply to the prorated extent that any Claim is directly and proximately caused by the negligence or other wrongful conduct of the party to be defended, indemnified or held harmless.  Carrier hereby expressly waives any exclusive remedy defense, including, but not limited to, those available under any workers’ compensation or other occupational accident statutory regime, to the extent necessary to effectuate Carrier’s obligations under this provision.

7.               Dispute Resolution.  This Agreement, and disputes hereunder, are subject to federal transportation law to the extent relevant and otherwise, to the laws of the state of Colorado without regard to the choice of law rules thereof.  Each party hereto (a) agrees that any suit, action, or other legal proceeding arising out of or relating to these T&Cs may be brought in any court of competent jurisdiction in Denver, Colorado, or in the United States District Court for the District of Colorado; (b) consents to the exclusive jurisdiction of such courts in any such suit, action, or proceeding arising from or related to this Agreement or the relationship of the parties; and (c) waives any objection which it may have to the laying of venue of any such suit, or proceeding in any of such courts.  CAP and Carrier expressly waive any and all rights and remedies allowed under 49 U.S.C. § 14101 to the extent that such rights and remedies conflict with these T&Cs.