Oncarriage, LLC. (a subsidiary of Nuvocargo Inc.) with its principal place of business at 134 Spring Street, Suite 601, New York, NY 10012, for itself and on behalf of its affiliated companies and divisions which are also deemed parties to this Agreement, collectively hereinafter referred to as “Broker”, in its capacity as an authorized property broker, provides a service that allows, via the website at nuvocargo.com (the “Site”) or by other means of communication, third party motor carriers to view shipments tendered by third parties (each a “Customer”) requiring over-the-road transportation (collectively, with the Site and all services provided therein, the “Service”). In order to use the Service, Carrier must register for an account on the Site (“Account”) and provide certain information as prompted by the registration form. As used herein, the term “Carrier” means any entity establishing an Account as a motor carrier. Carrier represents and warrants that all required registration information it submits is truthful and accurate and that Carrier will maintain the accuracy of such information. Carrier also acknowledges and agrees that this Agreement applies to any services rendered by Carrier, or on request of Broker, regardless of whether arranged, requested, or provided using the Site, or via other means.
BROKER ENTERS INTO THESE CARRIER TERMS AND CONDITIONS (“AGREEMENT”), AS AMENDED FROM TIME TO TIME BY BROKER AND AS IN EFFECT ON THE DATE A SHIPMENT IS AWARDED TO CARRIER, AS A PROPERTY BROKER FOR THE PURPOSE OF OBTAINING MOTOR CARRIER SERVICE IN ACCORDANCE WITH THE TERMS HEREOF. THIS AGREEMENT SETS FORTH THE LEGALLY BINDING TERMS GOVERNING MOTOR CARRIER SERVICE PROVIDED BY ANY CARRIER AND USE BY CARRIER, ITS DRIVERS AND ANY OF ITS USERS OF THE SERVICE. BY ACCESSING OR USING THE SERVICE, YOU, “CARRIER”, ARE ACCEPTING THIS AGREEMENT, ON BEHALF OF YOURSELF AND THE COMPANY, ENTITY OR ORGANIZATION THAT YOU REPRESENT, AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THIS AGREEMENT, ON BEHALF OF YOURSELF AND THE COMPANY, ENTITY OR ORGANIZATION THAT YOU REPRESENT. 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 THESE TERMS AND CONDITIONS SHALL NOT APPLY TO ANY SERVICES PERFORMED UNDER THIS AGREEMENT AND SHALL NOT BE BINDING ON OR APPLICABLE TO BROKER. CARRIER AND BROKER ACKNOWLEDGE AND AGREE THAT THIS AGREEMENT AND THE WEBSITE TERMS AND CONDITIONS SEPARATELY EXECUTED BY THE PARTIES EXCLUSIVELY GOVERN SERVICES ARRANGED VIA THE SITE REGARDLESS OF WHETHER CARRIER AND ANY LEGAL ENTITY INCLUDED IN THE DEFINITION OF “BROKER” ARE PARTIES TO ANY SEPARATE CONTRACT, AGREEMENT, OR OTHER DOCUMENT PURSUANT TO WHICH CARRIER HAS AGREED TO ARRANGE OR PERFORM TRANSPORTATION FOR OR ON BEHALF OF BROKER. YOU MAY NOT ACCESS OR USE THE SERVICE OR ACCEPT THIS AGREEMENT IF YOU ARE NOT AT LEAST 18 YEARS OLD, HAVE FULL LEGAL CAPACITY AND IN THE CASE OF A LEGAL REPRESENTATIVE, HAVE FULL AUTHORITY TO REPRESENT THE STATED CARRIER. IF YOU DO NOT AGREE WITH ALL OF THE PROVISIONS OF THIS AGREEMENT, DO NOT ACCESS OR USE THE SERVICE. BROKER MAY TERMINATE YOUR ACCESS TO AND ABILITY TO USE THE SERVICE AT ANY TIME, IN ITS SOLE DISCRETION WHETHER WITH OR WITHOUT CAUSE. UPON THE REASONABLE REQUEST OF BROKER, CARRIER SHALL PROVIDE ALL DOCUMENTATION AND OTHER INFORMATION REQUESTED IN CONNECTION WITH APPLICABLE “KNOW YOUR CUSTOMER” AND ANTI-MONEY-LAUNDERING RULES, REGULATIONS AND POLICIES OF BROKER.
The Service includes a platform whereby Customers can request pricing for a specific shipment (each an “Order”) (or Broker can post Orders at the Customer’s request) and may allow Carrier to view or request to transport such Orders and may otherwise allow Broker to communicate with Carrier and Customers regarding Orders.
Carrier acknowledges and agrees that Broker is not responsible for the content of, nor for providing, Orders. Carriers may request that Broker assign an Order to the Carrier. By requesting to transport an Order via the Site or otherwise (including, but not limited to, via phone or email), Carrier commits to completing the Order in accordance with all parameters provided via the Site or otherwise communicated to Carrier (including, but not limited to, origin and destination points, pickup and delivery schedules, shipment handling requirements, etc.), and will be directly liable to Broker for any additional cost or expense incurred by Broker in the event Carrier fails or refuses to transport the Order including, but not limited to, costs incurred in obtaining replacement transportation services. Broker may, in its sole discretion, award the Order to Carrier. Carrier acknowledges and agrees that Broker is not obligated to tender any specific Order requested by Carrier, nor any minimum number of Orders, to Carrier. Carrier fully understands, acknowledges and agrees that Broker does not render Services related with multimodal transportation for the Mexican market and that it shall refrain from rendering any such Services when contracted hereunder.
Carrier shall ensure Carrier accurately inputs into the Site any and all information required by the Service from the time of the Request until the transportation contemplated by the Order has been completed and all information requested by the Service has been provided by Carrier. Once the transportation and any other events contemplated by the Order are completed, Carrier shall promptly upload to the Service a proof of delivery signed by the authorized consignee (“Proof of Delivery”). Carrier shall ensure that Carrier uploads and sends the Proof of Delivery and all other documentation or information as prompted or otherwise required by the Service. Customer, or Broker (when legally or commercially permissible in the appropriate jurisdiction), may issue the Bill of Lading for each Order. Routing information provided with respect to any Order is for informational purposes only.
When the Services refer to transportation in Mexico, Carrier undertakes to comply with the Miscellaneous Tax Resolution for 2022 (as amended or supplemented from time to time, the “RMF”), under which the Carrier is required to issue a Revenue-type invoice (CFDI de tipo Ingresos) in connection with Service and a supplement to the bill of lading (Complemento Carta Porte, hereinafter the “BOL Supplement”). The Carrier agrees to deliver a copy of the BOL Supplement to Nuvocargo before beginning transportation of the Order.
The Carrier also acknowledges and agrees that if Carrier fails to comply with the foregoing, Carrier undertakes to (i) pay any damages and/or losses suffered by Nuvocargo and/or a Customer; (ii) hold Nuvocargo and/or the Customer harmless for any retention and/or confiscation of the unit (e.g. truck, container, box, etc.), as well as the Cargo; and (iii) reimburse any amounts paid by Nuvocargo and/or the Customer arising from or in relation to such breach, including, but not limited to, penalties, fines, sanctions and/or infractions, as well as attorney’s fees, within a period of no more than 5 (five) calendar days, after delivery by Nuvocargo and/or the Customer of written notice to Carrier of the claim.
Carrier represents and warrants that all transportation performed under this Agreement shall be contract carriage and that no portion of any tariff, terms and conditions, rules, classifications, bill of lading, circulars, pricing authorities, and/or similar documents that it publishes at any time shall apply to the transportation services provided by Carrier under this Agreement. Carrier shall be duly authorized and licensed to perform all services, and shall operate all of its equipment hereunder, in accordance with all domestic and/or international (including Mexican laws when the Services refers to transportation to or from Mexico) applicable laws, rules, and regulations (“Applicable Law”) with respect to the performance of transportation services under this Agreement.
Carrier further represents and warrants that it does not have an unsatisfactory or unfit safety rating issued by any regulatory authority with jurisdiction over Carrier’s operations, including, but not limited to (i) with respect to Carriers operating in any manner in or under the jurisdiction of the United States the Federal Motor Carrier Safety Administration (“FMCSA”) of the U.S. Department of Transportation (“DOT”); and/or (ii) with respect to Carriers operating in any manner in or under the jurisdiction of Mexico the General Directorate of Federal Motor Carrier Transportation (Dirección General de Autotransporte Federal “DGAT”), the Vice Ministry of Transportation (Subsecretaría de Transporte, “ST”) and the Mexican Communications and Transportation Ministry (Secretaría de Comunicaciones y Transportes, “SCT”). Carrier further agrees to comply with all Applicable Law in the performance of its services under this Agreement and to immediately notify Broker, via the Site or otherwise, of any change to the status, or loss of, any authorization, registration or other permit or authority impacting Carrier’s ability to provide transportation services as a for-hire motor carrier. In the event that Carrier receives an unsatisfactory or unfit safety rating (including an unsatisfactory or unfit safety rating by a reputable safety rating private service such as Recurso Confiable or R-Control in Mexico), is notified that it may receive an unsatisfactory or unfit safety rating, fails to maintain insurance required hereunder, is notified that such insurance may become ineffective or is otherwise prohibited by Applicable Law from performing services hereunder, Carrier shall immediately notify Broker of such fact and shall not carry any loads or goods tendered to Carrier by Broker until such prohibition on operations is removed. Carrier shall be solely responsible for its day to day operations including, but not limited to, setting appropriate routes to ensure that transportation of shipments is accomplished in accordance with all Applicable Laws and to otherwise ensure shipments are not damaged in transit.
Carrier shall transport shipments to their specified destination without delay and with reasonable dispatch, unless a specified delivery date and/or time is communicated to Carrier prior to the pick-up of any individual shipment, in which case delivery shall be performed in accordance with the communicated schedule and all Applicable Laws, including but not limited to all applicable hours of service rules. Carrier shall notify Broker immediately upon becoming aware of any anticipated delay in the pick-up or delivering of any shipment. Likewise, Carrier shall notify Broker of any discrepancies, inconsistencies, or problems with the shipment or the transportation thereof (including any accident involving the transporting conveyance) immediately as they arise.
Carrier will comply with handling instructions provided by the shipper, consignor or consignee (including such instructions that may be passed through to Carrier by Broker) including, but not limited to, compliance with requirements related to transportation of temperature controlled shipments. Carrier is responsible for verifying that all freight is properly blocked and braced for transportation pursuant to any applicable safety standards unless tendered to Carrier in a pre-loaded, sealed trailer, in which case Carrier shall note the seal numbers on the bill of lading or receipt. The goods being shipped shall be considered to be in apparent good order and condition, unless otherwise indicated by Carrier on the bill of lading.
Carrier shall be responsible for the acts and omissions of each of its employees, agents, representatives, contractors, and subcontractors and shall utilize only competent and able personnel that are legally licensed in accordance with all Applicable Law to perform the services hereunder. Carrier shall have full control of any personnel used in the provision of motor carrier services hereunder. Carrier shall ensure that its drivers are properly trained, tested, licensed, and qualified pursuant to all Applicable Law and are competent and capable of safely handling and transporting shipments accepted hereunder in accordance with such laws. Carrier shall ensure that any personnel providing services have sufficient hours available to complete scheduled deliveries in accordance with, and without violation of, applicable hours of service regulations. Carrier shall be solely responsible for determining whether scheduled services can be completed without violation of Applicable Law, and if services cannot be completed without violation of Applicable Law, shall notify Broker prior to acceptance of load.
Carrier shall provide and maintain, at its sole cost and expense, all equipment required for the services requested by Broker and shall only use and provide equipment that is clean, safe, in good operating condition and repair, in compliance with all Applicable Law, and is suitable and properly configured to load, transport, and unload safely the shipments tendered by Broker. Any equipment used by Carrier to transport cargo pursuant to this Agreement shall be used exclusively for such purpose while loaded with Customer cargo, and in no event will property of any other party be loaded on such equipment unless Broker expressly consents thereto in writing.
Carrier warrants that in transporting shipments that contain food products intended for human or animal consumption it will utilize only equipment that is food-grade, clean, water-tight, insect-free, rodent-free, contaminating-odor-free and properly equipped to permit Carrier to monitor the temperature of the shipment at any point during transit or the “Transportation Operations,” as that term may be defined by Applicable Law. Carrier further warrants that it will not utilize equipment that has been utilized for the transportation of waste, or that otherwise is not fully suitable for use in the transportation of any Food, Additive, Drug, Cosmetic or Device, as those terms are used in 21 U.S.C. §321 (provided such statute constitutes the Applicable Law in each specific case or in case the specific Customer requires compliance of those standards), or any other Applicable Law of similar kind or content. In the handling of all shipments, Carrier shall meet the guidelines and regulations under Applicable Law, including when the Services are performed in Mexico, those established by the Mexican Federal Commission for the Prevention of Sanitary Risks (Comisión Federal para la Protección contra Riesgos Sanitarios “Cofepris”) and any applicable Mexican Official Standards (Normas Oficiales Mexicanas).
Carrier will train all personnel to look for signs of adulteration or contamination prior to loading, and shall not load, or allow loading, of any cargo that Carrier personnel deems to be adulterated or contaminated at the time of tender. Carrier shall ensure that no freight transported pursuant to this Agreement will become or be deemed to be adulterated or misbranded within the meaning of Applicable Law, by reason of being, or having been, transported in or with Carrier's equipment, or by reason of any of Carrier's labor or other activities.
If goods are tendered to Carrier and a reasonable person trained in accordance with Applicable Law regarding a motor carrier’s obligations with respect to the transportation of food requiring controlled temperature transportation to ensure safety of the food would understand that the goods require controlled temperature transportation, and Carrier has not been provided instructions regarding controlled temperature goods, Carrier shall request and obtain such instructions prior to loading the goods. If Carrier receives contradictory or confusing instructions regarding any shipment, Carrier must resolve the contradictory or confusing instructions prior to accepting the shipment for transport. With respect to cargo requiring controlled temperature transportation, Carrier shall abide by the following: (i) Carrier shall perform regularly scheduled maintenance on any refrigeration unit used to transport cargo pursuant to this Agreement in accordance with manufacturer recommendations, and shall maintain records of such maintenance; (ii) Carrier shall ensure all refrigeration units are sufficiently fueled; (iii) Carrier is responsible to ensure pre-cooling of all transportation equipment prior to pick-up; (iv) Carrier shall ensure that all trailers are equipped with functioning temperature monitoring devices capable of demonstrating that required temperatures were maintained during the entire period of transit; and (v) Carrier will only use refrigeration equipment capable of producing a downloadable report demonstrating that required temperatures were maintained throughout the entire period of transit, which reports will be maintained for at least three (3) years after delivery and provided to Broker or its Customer upon request.
Carrier agrees that food that has been transported or offered for transport under conditions that are not in compliance with the load handling instructions, as provided to Carrier, may be considered “adulterated” within the meaning of Applicable Law. Carrier understands and agrees that adulterated shipments may be refused by the consignee or receiver, upon their delivery, at destination and Carrier shall bear sole risk of rejection of any cargo arising from or related to broken seals or failure to comply with load handling instructions.
Carrier shall be solely responsible for compliance with all provisions of Applicable Law regarding air quality and environmental standards including, but not limited to, those of the California Air Resources Board (“CARB”) (to the extent operations are conducted in California in any extent (and any and all Mexican environmental laws and regulations (with respect to any operations conducted in Mexico or under the jurisdiction of Mexican laws). By entering into this Agreement, Carrier acknowledges and agrees that, if operating in California, it is aware of applicable CARB regulations, including the Truck and Bus Regulation (“TBR”) at 13 C.C.R. § 2025, the Drayage Truck Regulation (“DTR”) at 13 C.C.R. § 2027, the regulation on Transportation Refrigeration Units (“TRU”) at 13 C.C.R. § 2477 et. Seq.., and the Tractor Trailer Greenhouse Gas (“GHG”) regulation at 17 C.C.R. § 95300 et. Seq., and if operating in Mexico or under the jurisdiction of Mexican laws), Mexican Official Standards NOM-019-SCT2/2015, NOM-251-SSA1-2009, NOM-012-SCT-2-2017, and has adopted policies and procedures to ensure compliance with such regulations, as they may be revised, adopted, and amended from time to time. Carrier shall only dispatch and operate compliant vehicles (including vehicles with compliant TRUs) and shall maintain shipment specific records evidencing such compliance, which records shall be provided to Broker upon request.
If Carrier agrees to provide transportation of any cargo defined or regulated as sensitive and/or dangerous goods or hazardous materials or goods otherwise subject to special regulations or requirements for transportation and/or handling, Carrier represents and warrants that it has obtained all necessary federal, state and provincial permits and registrations required by Applicable Law to transport hazardous materials or waste in international, inter-provincial, interstate and/or intrastate commerce. Carrier further represents and warrants that: (i) it is in compliance with any and all applicable laws, rules and regulations applicable to such transportation, including, but not limited to 49 C.F.R. Parts 171-178 (when and to the extent such statue constitutes Applicable Law); (ii) all drivers used to transport such shipments have undergone the necessary training requirements of all applicable state, provincial and federal laws; and (iii) all drivers used to transport hazardous material have the proper endorsements on their Commercial Driver's License (or such analogous operator permit as is applicable to such driver) to legally transport such shipments. Carrier will be solely responsible for the application of hazardous materials placards, as provided by the shippers, to the trailer and transport in accordance with all applicable laws and regulations. Carrier acknowledges and agrees that Broker’s sole obligation with respect to requesting services with respect to such shipments is to pass through information (including commodity descriptions and classifications) and documentation (including shipping papers) provided to Broker by the Customer. Broker shall have no obligation to independently verify the accuracy of such information or documentation.
The applicable rate for Carrier’s services will be as set forth in the Order. Carrier represents and warrants that there are no other applicable rates or charges except those set forth in the Order.
As a condition to payment, Carrier shall provide Broker with a legible copy of the Proof of Delivery. Failure to provide such documentation within forty-eight (48) hours of delivery may result in a reduction in rate, and shall result in Carrier being liable for any amounts Broker is unable to collect due to Carrier’s failure to provide Proof of Delivery as required by the Service.
Carrier will invoice Broker for the Fee and Broker will remit payment within thirty (30) days of Broker’s receipt of the invoice assuming Carrier has provided Proof of Delivery.
Carrier agrees that Broker has the exclusive right to handle all billing of freight charges to the Customer for the transportation services provided herein, and, as such, Carrier agrees to refrain from all collection efforts against the shipper, receiver, or the Customer. Upon Carrier’s receipt of payment from Broker, any right of Carrier to payment from the Customer or any other third-party for services performed will be automatically assigned to Broker.
Carrier further agrees that Broker has the discretionary right to offset any payments owed to Carrier hereunder for liability incurred by Carrier, including, but not limited to, claims for freight, loss, damage, or delay.
Regardless of any Applicable Law to the contrary, any claim for underpayment for transportation services provided pursuant to this Agreement shall be presented by Carrier to Broker within ninety (90) days of the delivery of the shipment or shipments giving rise to any such claim. Claims shall be supported by appropriate documentation. Any civil action to recover original charges or undercharges shall be instituted within twelve (12) months of the date of delivery of the shipments comprising the overcharge or undercharge claim.
Carrier shall have no lien, and hereby expressly waives its right to any lien on any cargo, freight, or property of Broker or any of its Customers, consignors, or consignees. Carrier also expressly waives any right of retention of the cargo, freight or property of Broker or Customer available under applicable law, including without limitation, that available under Article 591 of the Mexican Commercial Code (Código de Comercio).
Carrier shall provide Broker with written notice providing Broker with remittance instructions a (“Notice of Release”) in the event Carrier enters into from any factoring, assignment, pledge, hypothecation, or granting of a security interest in Carrier’s right to payment under this Agreement. Any factoring, assignment, pledge, hypothecation, or granting of a security interest in Carrier’s right to payment under this Agreement shall in no event modify, limit, or terminate Broker’s or its Customer’s right to offset or recoup or claims of Broker or its Customer for offset, recoupment, loss, or damage to any cargo or other property, including personal injury, or any other claim which Broker or its Customer may have against Carrier for any reason. All of Broker’s and its Customer’s claims and rights are specifically preserved and shall be superior to any such assignee’s, factor’s, or creditor’s rights or claims to payment, regardless of any notice to Broker or its Customer to the contrary. Carrier shall notify any such factor, secured creditor, or assignee of Broker’s and its Customer’s rights in this regard. Broker’s remittance of payment in accordance with any Notice of Release shall be deemed payment to Carrier in all regards and shall absolve Broker of any liability with respect to payment to Carrier for the services underlying such invoice. Should Carrier provide multiple or conflicting Notices of Release, Broker’s compliance with instructions in any Notice of Release shall absolve Broker of any liability with respect to amounts owed to Carrier for the services in question.
Carrier is an independent contractor and shall exercise exclusive control, supervision, and direction over (i) the manner in which transportation services are provided; (ii) the persons selected and engaged in providing transportation services; and (iii) the equipment selected and used to provide transportation services. Carrier shall have full responsibility for the payment of local, state, and federal payroll taxes, workers compensation and other social security and related payment requirements with respect to all persons engaged in the performance of transportation services. This Agreement does not create, nor shall it be deemed to create, any employment relationship, a partnership, joint venture, or agency relationship between Broker and Carrier.
Carrier assumes liability as a carrier pursuant to the Carmack Amendment (as currently codified at 49 U.S.C. § 14706) for loss, damage, destruction, or delay of any and all of Customer’s goods or property from the time of initial tender at origin until delivery at destination regardless of whether such standard would apply in the absence of this Agreement and regardless of whether Applicable Law might impose a different standard of liability. Carrier’s liability shall be for the full invoice value of the goods lost, damaged, or destroyed, up to a maximum liability of $100,000 per shipment. The foregoing notwithstanding, If the Order indicates that the shipment has a value in excess of $100,000, Carrier’s liability on any cargo claim relating thereto shall be the amount stated or declared in the Order. Carrier agrees that no other limitation of liability applies other than as set forth expressly in this Agreement, and agrees to be bound by excess value declarations as set forth in more detail below.
By accepting an Order indicating a shipment value in excess of $100,000 per shipment, Carrier acknowledges and agrees that Carrier is liable for the full value of the cargo, not to exceed the value stated in the Order.
Carrier waives any and all right of salvage or resale of any damaged goods and shall, at Broker’s or Customer's written request and direction, promptly return or dispose, at Carrier’s cost, any and all damaged goods. Unless approved by Customer in writing, Carrier shall not under any circumstance allow Customer’s goods to be sold or made available for sale or otherwise disposed of in any salvage markets, employee stores, or any other secondary outlets. In the event that damaged goods are returned to Customer and salvaged by Customer, in Customer’s sole discretion, then Carrier shall receive a credit for the salvage value of such freight.
Carrier waives any Applicable Law regarding processing of claims and handling of salvage, including, but not limited to, the provisions of 49 C.F.R. Part 370 (with respect to claims and handling of salvage for which United States law is the Applicable Law). Carrier shall pay to Broker or its Customer, or allow Broker to deduct from the amount Broker owes Carrier, Customer’s full actual loss for the kind and quantity of commodities so lost, delayed, damaged or destroyed. Payments by Carrier to Broker or its Customer, pursuant to the provisions of this section, shall be made within thirty (30) days following receipt by Carrier of Broker’s or Customer’s undisputed claim and supporting documentation. Carrier shall fully assist Broker in investigating any claim for cargo loss, damage, delay, or destruction. Broker’s withholding of compensation shall not allow or permit Carrier to seek payment from Broker’s Customers, consignors, consignees, or any other third party, and Carrier agrees that it shall not, under any circumstances, claim, demand, or pursue payment from Broker’s Customers, consignors, consignees, or other parties for transportation services provided hereunder.
Without limiting Carrier’s contractual liability to Broker hereunder, Carrier acknowledges and agrees that Broker may, in its sole discretion, but is not required to, pursue claims for cargo loss and damage on behalf of its Customer, and in such instances is not required to obtain an assignment of claim from its Customer in order to pursue such a claim.
Carrier agrees to procure and maintain at its own expense the following insurance in at least the following amounts (or for such other higher amounts or additional coverages as required by Applicable Law) at all times while rendering services pursuant to this Agreement:
Cargo Insurance: $100,000 per shipment, or, if the Order includes a value in excess of $100,000 per shipment, then such greater amount the amount, whichever is higher. The coverage provided under the policy shall have no exclusions or restrictions of any type that would foreseeably preclude coverage relating to cargo claims including, but not limited to, exclusions for unattended or unattached trailers, theft, commodities transported under this Agreement, refrigerator breakdown or lack of refrigerator fuel, or geographic limitations.
Automobile-Trucking Public Liability Insurance: $1,000,000 Per Occurrence, Combined Single Limit, for bodily injury and property damage;
Worker’s Compensation: as required by law and Employer's Liability: $500,000 per accident or occupational disease;
Commercial General liability, including contract coverage – limited to $1,000,000 per occurrence, $2,000,000 annual aggregate for bodily injury and property damage;
Any insurance coverage, endorsements, or requirements required by any governmental body for the type of transportation and related services specified in any appendix which expands, supplements or replaces the coverage specified in this Clause;
All insurance required by this Agreement must be written by an insurance company having a Best’s rating of A- or better if the insurer is rated (or such other creditworthiness rating or qualification as reasonably acceptable to Broker) and must be authorized to do business in any jurisdiction in which Carrier performs the transportation and related services. Carrier’s insurance shall be primary and required to respond and pay prior to any other available coverage. Carrier shall furnish written evidence of its insurance coverage to Broker upon request and shall advise Broker of any change in its insurance coverage thirty (30) days prior to the effective date of such change. Carrier further agrees to procure and maintain any and all insurance required by Applicable Law. Carrier shall cause the required insurance to be procured naming Broker as an “Additional Insured” on Automobile - Trucking Public Liability and Commercial General Liability policies and as “Certificate Holder” on cargo liability and/or such other endorsement/beneficiary or insured party appointments or designations as reasonably required to the satisfaction of Broker or as otherwise required by Customer. Upon execution of this Agreement, Carrier shall furnish to Broker written certificates obtained from each insurance carrier showing that the required insurance has been procured. Carrier’s indemnification obligations will not be reduced or limited by the actual insurance policy limits that Carrier chooses to purchase. Carrier shall provide copies of any insurance policies required to be maintained under this Agreement upon request of Broker.
CARRIER SHALL DEFEND, INDEMNIFY, AND HOLD BROKER, ITS CUSTOMER, AND EACH OF THEIR AFFILIATED ENTITIES HARMLESS FROM AND AGAINST, AND SHALL PAY AND REIMBURSE, ANY AND 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 OR BREACH OF THIS AGREEMENT BY CARRIER, ITS EMPLOYEES OR INDEPENDENT CONTRACTORS WORKING FOR CARRIER (COLLECTIVELY, THE “CLAIMS”), INCLUDING, BUT NOT LIMITED TO, CLAIMS FOR OR RELATED TO PERSONAL INJURY (INCLUDING DEATH), PROPERTY DAMAGE AND CARRIER’S POSSESSION, USE, MAINTENANCE, CUSTODY OR OPERATION OF THE EQUIPMENT; 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.
Carrier warrants that it shall ensure that the bill of lading properly names Carrier as the “carrier” on the load prior to signing it, and shall strike through and correct any erroneous designation of any other person as “carrier” (including Broker) on the bill of lading. The Parties acknowledge and agree that the terms and conditions of the bill of lading shall not apply to services provided under this Agreement.
Carrier specifically agrees that it shall transport all shipments tendered under this Agreement on motor vehicle equipment operating under Carrier’s own for-hire motor carrier authority and that it shall not, in any manner, sub- contract, broker, re-broker, assign, or tender to any third party for transportation any freight tendered to Carrier pursuant to this Agreement. In the event that Carrier, breaches this provision, Carrier shall be and remain liable to Broker under the terms of this Agreement as if Carrier performed the transportation using its employees including, without limitation, liability for loss, damage, destruction, or delayed delivery of any shipments, whether such loss, damage, destruction, or delay occurred while such shipment was in the possession of Carrier or such subcontractor or other person. Carrier shall be solely and exclusively responsible to pay any charges of any subcontractor or other person and agrees to indemnify, defend and hold Broker and its Customers and consignees harmless from and against any claims made by any such subcontractor or other person. If Carrier in any manner sub-contracts, brokers, or otherwise arranges for freight to be transported by a third party, in addition to any other rights and remedies available to Broker, Broker may, in its sole discretion, pay the underlying carrier directly, which payment will relieve Broker of any and all payment obligations to Carrier with respect to such load.
All information furnished by one party to the other in the course of performing work or rendering services under this Agreement shall be deemed to be the confidential and proprietary information of the disclosing party and/or its customers. The party receiving information agrees not to disclose any such information unless required to do so by order of court or other legally constituted tribunal, nor to use such information other than in performance of work and/or services under this Agreement. Carrier will not release, to any party including Customer, information including but not limited to instructions, rates, and shipment location, related to transportation rendered by Carrier pursuant to this Agreement without written authorization from Broker. Carrier agrees not to use Broker or Broker’s Customers’ names for promotional or other purposes without prior written consent.
Other than pursuant to this Agreement, Carrier will not accept traffic, either directly or indirectly, from any shipper, consignor, consignee or Customer of Broker where: (i) the availability of such traffic first became known to Carrier as a result of Broker’s efforts; or (2) the traffic of the shipper, consignor, consignee or Customer of Broker was first tendered to Carrier by Broker. If Carrier breaches this paragraph at any time within twelve (12) months of having transported any shipment pursuant to this Agreement (regardless of whether such shipment was transported in breach of this paragraph) without utilizing the services of Broker, Carrier shall be obligated to pay Broker, for a period of six (6) months thereafter, commissions in the amount of twenty-five percent (25%) of the transportation revenue resulting from traffic transported in violation of this provision, and Carrier shall provide Broker with all documentation requested by Broker to verify such transportation revenue. Carrier shall not utilize Broker’s or the Customer’s name or identity in any advertising or promotional communications without written confirmation of Broker consent.
BROKER HAS NO RESPONSIBILITY OR LIABILITY FOR ANY SHIPPING SERVICES PROVIDED TO CUSTOMERS BY CARRIER. BROKER SHALL NOT BE DEEMED TO BE AN AGENT OR A PARTNER OF CARRIER OR CUSTOMER FOR ANY REASON. CARRIER SHALL NOT BE DEEMED TO BE A SUBCONTRACTOR OR EMPLOYEE OF BROKER FOR ANY REASON.
IN NO EVENT SHALL BROKER (OR ITS SUPPLIERS) BE LIABLE TO CARRIER OR ANY THIRD PARTY FOR ANY LOST PROFIT OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT OR CARRIER’S USE OF, OR INABILITY TO USE, THE SERVICE, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFIT OR BUSINESS INTERRUPTION, EVEN IF BROKER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, BROKER’S (AND ITS SUPPLIERS’) LIABILITY TO CARRIER FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT OR THE SERVICE (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO THE GREATER OF (A) FIFTY US DOLLARS ($50) OR (B) AMOUNTS PAID BY BROKER TO CARRIER IN THE PRIOR 12 MONTHS (IF ANY). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT.
Carrier consents to receive communications from Broker in an electronic form and agree that all terms and conditions, agreements, notices, disclosures, and other communications that Broker provides to Carrier electronically satisfy any legal requirement that such communications would satisfy if it were be in a hardcopy writing and expressly agrees to be bound by all transactions with Broker conducted through electronic means without the need of physical signatures. The foregoing does not affect Carrier’s non-waivable rights.
Neither party shall assign this Agreement or any rights hereunder without the prior written consent of the other party, except that (i) Broker may assign this Agreement to any of its parent, subsidiary, or related companies (including, but not limited to, Nuvocargo Inc), or to any surviving company in a merger or acquisition; and (ii) Broker may assign or otherwise encumber any and all collection rights hereunder in favor of any third party, including financial institutions. Any assignment made pursuant to this paragraph shall be binding upon all assigns, heirs, and successors of the assigning party. Carrier expressly acknowledges and agrees that each Customer is an intended third party beneficiary of this Agreement.
Except for regular business communications, which may be transmitted through procedures established by agreement or acquiescence, all notices made hereunder shall be provided in writing and delivered by certified mail, or overnight courier with tracking capabilities. Notices transmitted by certified mail or overnight courier shall be deemed received as of the date and time signed for by recipient. If to Carrier, notices will be addressed to the address provided by Carrier when registering for the Service, as updated by Carrier from time to time. If to Broker, notice shall be addressed as set forth below:
Neither party shall be liable for any delay in the performance of their respective obligations under this Agreement resulting from any force majeure, including, but not limited to, acts of God, acts of government or other civil or military authorities, acts of terror, war, riots, or any other event of like kind beyond the reasonable control of the party. In the event of a force majeure, the affected party shall promptly notify the other party in writing, stating the reasons for the inability to comply with the provisions of this Agreement, and the expected duration of the force majeure.
This Agreement and the Website Terms and Conditions separately executed by the parties constitutes the entire agreement and understanding between the parties with respect to the Services and supersedes any and all prior agreements and understanding, either oral or written. In the event of a conflict between this Agreement and the Website Terms and Conditions, this Agreement shall govern. This Agreement may not be amended, changed, altered, or otherwise modified except in writing signed by both parties.
In the event either party incurs reasonable attorney fees, costs, or expenses in enforcing any of the provisions of this Agreement, or in exercising any right or remedy arising out of any breach of this Agreement by the other party, the prevailing party shall be entitled to receive reasonable attorney fees, costs, and expenses from the other party.
If any provision of this Agreement is held to be invalid under the laws of the Federal government, any State, Province, Territory, Municipality or any other jurisdiction having authority, such provision will be deemed to have no effect in such jurisdiction, but all other provisions of this Agreement shall remain in full force and effect.
The parties have entered into this Agreement pursuant to 49 U.S.C. § 14101(b) for the purpose of providing and receiving transportation services under the rates and conditions set forth in this Agreement to the extent services are rendered in or subject to the jurisdiction of the laws of the United States. The Parties expressly waive any and all rights and remedies under Part B of Subtitle IV to Title 49 of the U.S. Code, to the extent that such rights or remedies conflict with this Agreement. Carrier hereby waives its right to obtain copies of Broker’s records as provided for under 49 C.F.R. Part 371.
Carrier and Broker each warrants to the other and agrees that neither it nor any of its officers, directors, employees or agents nor any other person or entity acting on its behalf shall take any action in connection with the transportation activities described herein which would constitute a violation of the U.S. Foreign Corrupt Practices Act or the corresponding Mexican anti-corruption laws (Ley General del Sistema Nacional Anticorrupción y sus disposiciones complementarias). In particular, neither Carrier nor Broker, nor any of their respective officers, directors, employees or agents nor any other person or entity acting on their behalf shall request, induce, make, offer, authorize or promise to make any payment or transfer of anything of value, directly or indirectly, (i) to any governmental official or employee (including employees of government-owned or government-controlled corporations, agencies or bodies), (ii) any official or employee of a public international organization, (iii) to any political party, official of a political party or candidate, or (iv) to any third party knowing, believing, or suspecting that such third party will give or transfer the payment or thing of value, or any portion thereof, to any of the foregoing persons in order to obtain or retain business or for any other improper purpose.
This Agreement shall be deemed to have been drawn in accordance with the statutes and laws of the state of New York and in the event of any disagreement or dispute regarding services subject to this Agreement, to the extent not otherwise governed by U.S. federal law, the laws of the state of new York shall apply and suit must be brought in courts serving New York County, New York as each party specifically submits to the exclusive personal jurisdiction of such courts for disputes involving or arising from this Agreement or services rendered (or not received) pursuant to this Agreement. The parties hereby submit to the exclusive jurisdiction of, and venue in, such courts and waive any and all challenges to such venue or jurisdiction. Unless otherwise specified, the word “dollar” and the “$” sign used herein refer to United States currency, and all amounts to be advanced, paid or calculated hereunder are to be advanced, paid or calculated in United States currency. This Agreement is drawn in English. In the event it is interpreted to any other language, any such interpretation shall be for the convenience of the parties only. The English language version is the official agreed upon version and will govern any conflict with any version in any other language.
These Standard Terms and Conditions (this “Agreement”) apply to all transactions between the motor carrier tendering a Proposed Account Assignment (as defined hereinbelow) (“Carrier”), and Nuvocargo Capital, LLC, a Delaware limited liability company (“Capital,” and together with Carrier, each a “Party,” and together, the “Parties”).
WHEREAS, Carrier accepts and transports shipments of freight tendered to Carrier by Oncarraige, LLC, a Georgia limited liability company, doing business as Nuvocargo (“Nuvocargo”), pursuant to which Carrier issues an invoice to Nuvocargo for the amount of the transportation services (the “Invoice Amount”) for shipments that are satisfactorily completed and documented (“Completed Shipments,” and the Invoice Amount for each Completed Shipment, for purposes of this Agreement, being an “Account”);
WHEREAS, Carrier may from time to time desire to assign Accounts to Capital in exchange for Capital purchasing such Accounts for an amount equal to the Invoice Amount less a discount that is communicated to the Carrier via email or Nuvocargo’s website at nuvocargo.com (the “Site”) (the “Account Purchase Price”).
NOW THEREFORE, in consideration of the foregoing and the mutual agreements set forth below, the Parties agree as follows:
Tender of Assignment by Carrier. Capital shall notify Carrier that an Account is eligible for assignment and the Account Purchase Price via email or the Site (the “Quick Pay Notice”). Carrier desiring to assign such Account to Capital and receive from Capital in exchange for such Account the Account Purchase Price shall complete the electronic form attached in the Quick Pay Notice (a “Proposed Account Assignment”).
Acceptance or Rejection of Assignment by Capital. Within twenty-four (24) hours after its receipt of an applicable Proposed Account Assignment, Capital will notify Carrier of its acceptance of the Proposed Account Assignment (an “Assignment Acceptance”) via email. In the event Capital does not transmit an Assignment Acceptance to Carrier or otherwise notifies Carrier of its rejection of the Proposed Account Assignment, such will be deemed to be an “Assignment Rejection.”
Acknowledgement of Assignment by NuvoCargo. Upon Capital’s Assignment Acceptance, Capital will cause NuvoCargo to acknowledge the Assignment Acceptance.
Legal Status. Carrier’s exact legal name and state of organization are that as stated in the introductory paragraph of this Agreement. Carrier is validly existing under the laws of its state of organization.
Accounts. Carrier is the owner of and has the power to transfer each Account that is or will be the subject of a Proposed Account Assignment, free from any right or claim or any person or any adverse lien, security interest or other encumbrance. Carrier has not sold, assigned, factored or otherwise hypothecated any Account that is or will be the subject of a Proposed Account Assignment, and Carrier has not agreed in any form or fashion to sell, assign, factor or otherwise hypothecate any Account that is or will be the subject of a Proposed Account Assignment. Each Account that is or will be the subject of a Proposed Account Assignment represents a bona fide rendering of services to NuvoCargo in the ordinary course of Carrier’s business.
Information. All information provided by Carrier to Capital in connection with this Agreement, including information provided in any Proposed Account Assignment is and will be true and correct.
Term. The term of this Agreement (the “Term”) shall commence upon Effective Date and shall remain effective until terminated by either Party upon thirty (30) day’s written notice.
Survival. Any provision of this Agreement which, by its nature, would be intended to be applicable following termination or expiration of this Agreement, including, without limitation, the Payment of Account Purchase Price under section 2, the Representations and Warranties of Carrier under section 4 hereof, and the Confidentiality Provisions of section 5, will survive any termination or expiration of this Agreement.
Indemnity. Carrier agrees to indemnify, defend, and hold harmless Capital, its affiliates and their officers, directors, employees, and agents from, and to reimburse them for, any and all claims, demands, losses, liabilities, and expenses (including attorneys’ fees), arising out of or in connection with any loss incurred by Capital as a result of any misstatement or breach of the Representations and Warranties of Carrier under section 4 hereof.
Entire Agreement. This Agreement represents the entire agreement between Carrier and Capital, and supersedes any and all previous oral and written agreements relating to the subject matter herein. No change or modification of this Agreement will be valid unless the same be in writing and executed by all of the Parties hereto.
Enforcement. Capital shall have the right to enforce this Agreement, or any term hereof, specifically, and to obtain equitable relief, including without limitation injunctive relief, in order to prevent any breach or threatened breach hereof, without posting of any bond or other security, in addition to any other remedy available.
Recitals. The recitals to this Agreement are incorporated herein and made a part hereof.
Headings. Headings in this Agreement are for convenience only and shall not be used to interpret or construe its provisions.
Gender and Number. Any reference to the masculine, feminine or neuter gender herein will be deemed to include all other genders unless context otherwise requires. When the context requires, singular nouns and pronouns include the plural, and plural nouns and pronouns include the singular.
Notice. Any notice required or permitted to be given by either Party under this Agreement, unless otherwise indicated, must be in writing and directed to the attention of the individual, mailing address and email address set forth below:
If to Carrier, notices will be addressed to the address provided by Carrier when registering on the Site, as updated by Carrier from time to time.
If to Capital, notice shall be addressed to:
Nuvocargo Capital, LLC
Attn: Deepak Jagdish Chhugani
134 Spring Street, Suite 601
New York, NY 10012
Notice may be given by hand, by a nationally recognized overnight courier, or by email transmission (with a confirming copy sent via U.S. First Class Mail).
Governing Law and Jurisdiction. This Agreement is governed by the laws in force in the State of New York (the “State”) and shall be interpreted according to the internal laws of the State without reference to its conflicts of laws or choice of law principles. The Parties hereby irrevocably agree that the courts of the State of New York and the courts of the United States of America, in each case sitting in the County of New York, shall have jurisdiction to hear and determine any proceedings and to settle any disputes arising under this Agreement and, for such purposes, irrevocably submit to the jurisdiction of such courts.
Assignment. Carrier may not assign this Agreement without the prior written consent of Capital. This Agreement may be assigned by Capital without any consent on the part of Carrier, and this Agreement will inure to the benefit of the successors and assigns of Capital.
Severability. If any provision in this Agreement shall be determined to be invalid, such provision shall be deemed omitted, and the remainder of this Agreement shall continue in full force and effect.