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THESE TERMS AND CONDITIONS (“TERMS”) APPLY TO ALL SHIPMENTS (EACH A “SHIPMENT”) OF GOODS PROCESSED AND/OR DISTRIBUTED (COLLECTIVELY, “PRODUCTS”) THROUGH OR BY ANY DIVISION, SUBSIDIARY, OR AFFILIATE (EACH AN “AFFILIATE”) OF DULCICH, INC. DBA PACIFIC SEAFOOD GROUP (“PACIFIC”) VIA A THIRD-PARTY TRANSPORTATION SERVICE PROVIDER (EACH A “CARRIER”). THE TERM “SHIPPER” REFERS TO THE SPECIFIC PACIFIC AFFILIATE THAT SHIPS PRODUCTS VIA THE CARRIER NAMED IN THE BILL OF LADING, MANIFEST, OR OTHER SIMILAR DOCUMENT ISSUED BY SUCH AFFILITATE IN CONNECTION WITH THE SHIPMENT (A “SHIPMENT DOCUMENT”).
SHIPMENT OF PRODUCTS IS EXPRESSLY CONDITIONED ON CARRIER’S ASSENT TO THESE TERMS. BY ACCEPTING ANY SHIPMENT, RECEIVING ANY PAYMENT, OR TRANSPORTING ANY PRODUCTS, CARRIER AGREES TO BE BOUND BY AND ACCEPT ALL TERMS UNLESS EXPRESSLY MODIFIED BY SEPARATE AGREEMENT SIGNED BY BOTH CARRIER AND SHIPPER.
PACIFIC MAY, FROM TIME TO TIME, AND IN ITS SOLE DISCRETION, REVISE THESE TERMS WITHOUT NOTICE BY POSTING REVISED TERMS ON ITS WEBSITE (HTTP://WWW.PACIFICSEAFOOD.COM/STANDARD-CARRIER-TERMS-CONDITIONS) (THE “WEBSITE”). THE TERMS POSTED ON THE WEBSITE AT THE TIME CARRIER ACCEPTS ANY SHIPMENT GOVERN THAT SHIPMENT.
- Offer and Acceptance. Each Shipment Document constitutes a separate offer to ship Products. Carrier’s confirmation (including e-mail), receipt of any payment, commencement of any work, or transport of all or any portion of Products in connection with a Shipment, whichever occurs first, shall be deemed acceptance of Shipper’s offer. All Shipment Documents incorporate these Terms whether or not they are separately referenced in the Shipment Document. Acceptance of the Shipment shall therefore also constitute acceptance of these Terms. The accepted Shipment Document shall govern the transaction between the Carrier and Shipper. In the event of a conflict between any term or condition of the Shipment Document and these Terms, these Terms shall control unless expressly amended in the Shipment Document by specific reference to these Terms. If any Shipment is deemed to be an acceptance of a prior offer by Carrier, then such acceptance shall be limited to these Terms. Any terms included in Carrier’s bill of lading, bid, proposal, invoice, statement, published rate schedule, or other memoranda or attachment of any nature whatsoever, whether written or oral, shall not govern the transaction between Shipper and Carrier. Additional or different terms proposed by Carrier, or any other attempt by Carrier to vary these Terms, shall constitute a counteroffer by Carrier, which counteroffer is rejected by Shipper.
- Services. Carrier agrees to perform all motor contract carriage services, and to furnish all required supervision, labor, personnel, motor vehicles, equipment, supplies, services, administration, taxes, safety measures, notices, trade and business permits, and any and all other things necessary to fully complete the services, required to fully complete the Shipment detailed in the Shipment Document (collectively, the “Services”). Carrier must complete all Services: 1) in strict compliance with both the Shipment Document and Shipper’s directives; 2) in conformance with the highest industry standards (except as modified by the Shipment Documents); and 3) to the reasonable satisfaction of Shipper. Disputes between Carrier and Shipper, or legal proceedings arising from or relating to such disputes, shall not relieve Carrier of its obligations to perform the Services or to comply with Pacific’s directives.
- Extra Services. Carrier shall not perform additional or extra services that might result in additional charge to Shipper except upon prior authorization from Shipper. Authorization generally will take the form of a letter, facsimile, or electronic mail (e-mail) from an authorized representative of Shipper, however verbal authorization will be acceptable for services within 250 miles of Shipper’s locations. Should Carrier proceed with additional or extra services without prior authorization, Carrier thereby waives any and all claims for additional payment in connection therewith.
- Price. All prices listed or quoted in any Shipment Document, proposal, or price sheet are in U.S. dollars and do not include any sales, value added, inventory, use, or other taxes, fees or charges, which are the sole responsibility of Carrier. Shipper will pay Carrier an amount calculated in accordance with the schedule of rates and charges attached as EXHIBIT 1 for performance of the Services, subject to any additions and/or deductions for charges agreed upon and memorialized according to the requirements of these Terms (the “Price”). Carrier agrees to accept the Price as full compensation for performance of the Services and shall not be entitled to any additional amounts for taxes, fees, licenses, assessments, or other items of any nature whatsoever. Carrier shall pay for all materials and equipment furnished and all work and labor performed in connection with the Services.
- Payment. Carrier shall submit invoices to Shipper according to the schedule set forth in the Shipment Document. If not otherwise specified in the Shipment Document, Carrier shall submit an invoice to Shipper for the Shipment no later than THIRTY (30) days from the delivery of the Products to the final destination identified in the Shipment Document (the “Delivery Point”) or from when the Shipment is “closed” in Shipper’s transportation management system, whichever is later (the “Completion Date”). Carrier waives its right to payment for any amounts not invoiced within ONE HUNDRED TWENTY (120) days following the Completion Date. All of Carrier’s invoices shall be directed to the address specified on the Shipment Document, reference the individual Shipment number, and be accompanied by appropriate documentation supporting the invoiced amounts. No payment by Shipper shall constitute final acceptance of the Services nor shall it waive any of Shipper’s rights and remedies.
- Delivery. Carrier shall perform and complete all Services on or before the dates specified in the Shipment Document. Carrier shall immediately report any delays to Shipper. Receipt of such report shall not operate as a waiver of any of Shipper’s rights in connection with the Shipment. Carrier shall take all reasonable steps to avoid or end delays and shall be solely responsible for any costs related to such efforts. In no event shall Carrier be entitled to any additional compensation without express Authorization from Shipper. Carrier shall be liable for any and all damages suffered by Shipper as a result of a failure by Carrier to satisfy the requirements of this section, including, without limitation, liquidated damages, additional expenses (including overhead expenses), and other damages of any nature whatsoever.
- Performance. Carrier shall perform all Services under Carrier’s own authority. Should Carrier engage third-party services absent Shipper’s prior written authorization, then Carrier shall be liable to Shipper for any cargo loss, damage, or injury to the same extent as if Carrier had performed the Services itself. This prohibition against subcontracting does not apply to persons or equipment leased to Carrier pursuant to the provisions of 49 C.F.R. Part 376.
- Cargo Liability. Carrier shall be responsible for and liable to Shipper for loss or damage to Products transported in connection with the Shipment during any period in which they are in Carrier’s care, custody, possession, or control. Carrier assumes liability of a common carrier (i.e. Carmack Amendment liability) for loss, delay, damage to, or destruction of any and all Pacific goods or property while under Carrier’s care, custody, possession, or control. Carrier shall be liable for the full value of Products lost or damaged while in Carrier’s care, custody, possession, or control. Such liability shall not be limited by the Shipment Document or by any bill of lading, delivery receipt, tariff, or other similar document. Carrier shall pay the full value of any loss to Pacific within THIRTY (30) days of invoice.
- Customs and Security Requirements. Carrier shall be responsible for ensuring compliance with all customs and security laws that are applicable to motor carriers transporting goods either domestically in the United States or for import or export from or to the United States.
- Refused Freight. Carrier shall immediately notify Shipper of any returned or refused Shipment. Carrier may not sell or destroy Shipper’s Products in the event of a returned or refused Shipment. Carrier’s liability for loss or damage shall continue until the Shipment has been properly returned to the point of origin or to such other location designated by Shipper.
- Salvage. In no event may Carrier permit Shipper’s Products to be placed in a salvage market or otherwise disposed of without Shipper’s advance written approval and direction.
- Shipment Coordination. Shipper reserves the right to award separate contracts in connection with individual Shipments. Carrier shall permit Shipper and others reasonable opportunity to perform services related to each Shipment and shall coordinate its Services with theirs. Carrier acknowledges that delays and interference may occur as a result of coordination of the Services with others. Shipper shall not be responsible for any damages or costs attributable to a failure by Carrier to coordinate its Services with those of others. Carrier further acknowledges that it is vital and necessary that Carrier perform its Services diligently and expeditiously so that Shipper and others will not be delayed in the performance of their Services. Carrier shall perform its Services so as to avoid causing delays or otherwise interfering with completion of the Shipment. Shipper reserves the right to reasonably modify any portion of the Shipment schedule with respect to the sequence or duration of the Services. Carrier shall use its best skill and judgment to cause the Services to be performed in a prompt and expeditious manner and in accordance with the Shipment schedule notwithstanding any such modifications.
- Indemnity. Carrier, at its sole cost and expense, shall defend, indemnify, and hold harmless: 1) Shipper, Pacific, and its Affiliates; 2) any and all other parties which Shipper, Pacific, and/or its Affiliates are required to defend, indemnify, or hold harmless; and 3) each of their respective owners, directors, officers, employees, and agents (collectively, “Indemnified Parties”), from and against all loss, direct or consequential damage, cost, expense, claim, or other liability of any kind whatsoever (including attorney fees), actual or alleged, caused by, arising out of, resulting from, or occurring in whole or in part in connection with: (i) violation by Carrier of any law, regulation, or ordinance applicable to Carrier; (ii) Carrier’s failure to comply with any obligation under these Terms and/or the Shipment Documents; (iii) any failure or omission to perform any act that, as between Shipper and Carrier, was Carrier’s obligation to perform; (iv) performance of the Services by Carrier or any other party for whom Carrier is responsible, whether or not caused in part by an act or failure to act, active or passive negligence, breach of this Agreement, or other fault of any Indemnified Party; or (v) bodily injury, death, or damage to property of any person caused by or arising out of negligence or willful misconduct of Carrier or any person for whom Carrier is responsible.
- Shipper Equipment. Should Carrier or any of its directors, officers, employees, agents, servants, or subcontractors utilize any machinery, trailers, equipment, hoists, lifts, or similar items belonging to or under the control of Shipper, Carrier shall be liable to Shipper for any loss or damage (including personal injury or death) which may arise or result from such use, unless such loss or damage derives solely from negligence of Shipper’s employees operating Shipper’s own (or leased) equipment.
- Insurance: Carrier shall obtain and maintain throughout the duration of any Shipment, at Carrier’s sole expense and with insurance companies reasonably satisfactory to Shipper, insurance coverage of the types and limits described below in U.S. dollars. The limits set forth below are minimum limits and shall not be construed to limit Carrier’s liability. Limits may be satisfied through any combination of primary and umbrella policies.
- Commercial General Liability insurance with a combined single limit of $5,000,000 per occurrence and coverage for all liability associated with the Shipment, including, without limitation, bodily injury or property damage, personal injury, products, completed operations, sudden and accidental pollution, and Carrier’s indemnity obligations;
- Business Auto Liability insurance complying with the requirements of all regulatory bodies having jurisdiction, or a combined single limit of $1,000,000 per occurrence for bodily injury or property damage, including coverage for all vehicles used in the performance of any services related to the Shipment, whether owned, non-owned, or hired;
- Workers Compensation insurance complying with the laws having jurisdiction over each employee, whether or not Carrier is required by such laws to maintain such insurance, and Employer’s Liability (if applicable) with limits of not less than $1,000,000 each accident, $1,000,000 disease policy limit, and $1,000,000 each employee, and which must further include coverage for liability arising out of the U.S. Longshoremen’s and Harbor Workers’ Act, the Jones Act, and the Outer Continental Shelf Land Act, if applicable;
- All Risk Cargo Liability insurance (including mechanical refrigeration breakdown) with limits of not less than $250,000 per trailer, which shall be in the form required by 49 C.F.R. 1043.2(b) and shall have no exclusions or restrictions that would not be accepted by the FMCSA for filing under statutory requirements; and
- Any other insurance required by the U.S. Department of Transportation, or any other federal, state or local governmental agency whose rules and regulations may apply to Carrier’s performance under these Terms or any Shipping Document.
In each of the above described policies, Carrier shall waive, and shall require its insurers to waive, any rights of subrogation or recovery they may have against Shipper, Pacific, and/or its Affiliates. Under the policies described in (a) and (b) above, Shipper, Pacific, and its Affiliates shall be named as additional insureds. Any costs associated with naming these additional insureds shall be the sole responsibility of Carrier. Such policies shall be primary insurance with respect to Shipper, Pacific, and its Affiliates, and any other insurance maintained by Shipper, Pacific, and/or its Affiliates shall be excess and not contributory with this insurance. Carrier must provide Shipper with at least THIRTY (30) days prior written notice of any non-renewal or cancellation of the policies described above. Carrier shall deliver to Shipper certificates of insurance evidencing the existence of all insurance required above as a condition precedent to the rendering of any services by Shipper related to any Shipment. If Carrier is self-insured, evidence of state approval and excess workers compensation coverage must be provided, which coverage must include liability arising out of the U.S. Longshoremen’s and Harbor Workers’ Act, the Jones Act, and the Outer Continental Shelf Land Act, if applicable.
In addition, each of the above described policies: 1) shall be with reputable and financially responsible insurance companies (rated B+ or better); 2) shall (with the exception of worker’s compensation and employer’s liability) provide coverage for Shipper’s negligence, whether sole or partial, active or passive, and shall not be limited by Carrier’s liability under the indemnity provisions of these Terms; 3) shall have punitive damage exclusions, if any, deleted (and the deletion indicated on the certificate of insurance); and 4) shall be endorsed, to the extent permitted by law, to include contractual liability coverage with respect to these Terms and the liabilities assumed by Carrier herein, which endorsement must be stated on the certificate of insurance.
Acceptance of any insurance certificate shall not constitute acceptance of the adequacy of coverage, compliance with the requirements of these Terms, or an amendment to these Terms.
- Liens. Carrier shall not withhold any of Shipper’s goods, property, or Products on account of any dispute as to rates or any alleged failure by Shipper to pay charges in connection with any Shipment or other agreement between Shipper and Carrier. Carrier shall have no lien, and hereby expressly waives right to any lien, on any cargo or other property of Shipper or its customers in the care, custody, possession, or control of Carrier.
- Representations and Warranties. Carrier represents, guarantees, and warrants each of the following to Shipper and acknowledges that each is a material inducement to Shipper to complete the Shipment:
- Carrier is duly authorized and licensed by the Federal Motor Carrier Safety Administration (“FMCSA”) and all other appropriate governmental bodies to perform interstate transportation services as a motor carrier, and at all times while providing Services shall have and maintain a satisfactory safety rating from the FMCSA and shall submit a copy of its motor carrier authority to Pacific immediately upon request;
- Carrier possesses the requisite skill, expertise, and licensing to perform the Services and complies with all applicable codes, laws, ordinances, rules, and regulations of state, regional, and local authorities affecting the Shipment (collectively, “Applicable Law”);
- All Services shall be performed: i) in strict compliance with the Shipment Document and Shipper’s directives; ii) using equipment and materials which are in good order, condition, and repair, and which meet or exceed all requirements under Applicable Law; and iii) in compliance with Pacific’s Sanitation and Temperature Requirements as attached to this Agreement as EXHIBIT 2;
- Carrier understands that Shipper deals in goods and products requiring sanitary equipment and does not use equipment or materials that have ever been utilized to haul garbage, trash, hazardous waste, or Division 6.1 Poisonous/Toxic Material (as defined by 49 CFR §173.132);
- Carrier has, and shall at all times maintain, a current safety rating from the U.S. Department of Transportation or other regulatory body (if applicable) of not less than “Satisfactory” (or its equivalent);
- Carrier complies with all human rights laws, including, without limitation, prohibitions on child labor, slavery, and human trafficking, in the countries in which it does business;
- Carrier complies with all environmental laws and regulations in the countries in which it does business;
- Carrier employs sustainable technologies and initiatives in connection with its business, operations, and processes; and
- Carrier does not unlawfully discriminate, harass or permit harassment against any person because of their race, color, religion, sex, age, sexual orientation, ancestry, creed, marital status, national origin, disability, veteran’s status, or union activity.
The above representations and warranties made by Carrier are in addition to, and shall not be construed as restricting or limiting any warranties of Carrier, express or implied, which are otherwise provided by law.
- Right to Audit. Shipper shall have the right to inspect and audit at all reasonable times Carrier’s accounts and records pertaining to the Shipment and Carrier’s performance under and compliance with the Shipment Document and/or these Terms. Such right shall continue for a period of TWENTY FOUR (24) months following the Completion Date. Carrier is obligated to retain such accounts and records for at least TWENTY FOUR (24) months following the Completion Date. Shipper shall similarly have the right to conduct on-site Carrier inspections and audits as Shipper deems necessary or appropriate. Carrier shall cooperate as necessary to accommodate all such inspections.
- Risk of Loss. Cost allocation and risk of loss to Products shall pass from Shipper to Carrier when Products are first loaded onto Carrier equipment at the point of origin with fixed and persisting intent to deliver such Products to the Delivery Point.
- Taxes and Other Fees. Carrier will pay or cause to be paid all taxes, fees, levies, penalties, licenses, charges, or interest imposed by any government authority (“Taxes”) on or with respect to the Products prior to or at the Delivery Point. If either party is required to remit or pay Taxes that are the other party’s responsibility under these Terms, then the party responsible for such Taxes shall promptly reimburse the other party for such Taxes. Any party entitled to an exemption from any such Taxes shall furnish the other party with any documentation necessary to evidence such exemption.
- Termination for Convenience. Shipper reserves the right to cancel any Shipment, in whole or in part, for its own convenience without cause at any time by giving Carrier written notice (in paper or electronic form) of such cancellation. Upon receipt of written notice of termination, Carrier shall cease operations and take any action as directed to preserve and protect the Products being transported. Shipper shall pay for the portion of Carrier’s performance that has been satisfactorily completed as of the date of receipt of Shipper’s notice of cancellation as invoiced by Carrier. Under no circumstances shall Carrier be entitled to any prospective profits or other damages because of such Shipper cancellation. In no event shall Carrier have the right or ability to cancel any Shipment, either in whole or in part, without Shipper’s prior written consent, which may be withheld in Shipper’s sole and absolute discretion. Should Carrier attempt to cancel any Shipment, then Carrier shall be in default of its obligations under these Terms.
- Termination for Cause.
- Default. Carrier shall be in default if Carrier: (i) materially fails in any respect to prosecute the Services according to the applicable schedule; (ii) fails to comply with all provisions or fails to fulfill any obligation of these Terms and/or the Shipment Document; (iii) fails to observe and comply with any Applicable Law or instructions from Pacific; (iv) files a petition in bankruptcy, or has a petition in bankruptcy filed against it; (v) becomes either insolvent or a debtor in reorganization proceedings; (vi) fails to pay for all labor and material, payroll, taxes (including, without limitation, payroll taxes), contributions, and insurance premiums in connection with the Services; or (vii) gives Pacific, through any act or omission, reasonable cause to doubt Carrier’s ability to timely, fully, and properly execute its obligations under this Agreement and/or the Shipment Document (singularly and collectively, a “Default”).
- Remedies. If Carrier is in Default, Shipper may, in its sole discretion, avail itself to any or all of the following remedies: (i) elect not to pay Carrier any amounts due for the purpose of setoff against and to the extent of Shipper’s damages caused by Carrier’s Default; (ii) terminate or suspend Shipper’s performance under any Shipment, in whole or in part, effective immediately upon Carrier’s receipt of Shipper’s notice of termination/suspension; or (iii) pursue and enforce any and all other rights or remedies available to Shipper at law or equity.
- Wrongful Cancellation. Should a court or arbitrator determine that Shipper’s alleged termination for cause was wrongful or otherwise improper, then Shipper’s termination shall be deemed a termination for convenience.
- Assignment. Carrier may not assign any of its rights or obligations under any Shipment, Shipment Document, and/or Terms without Shipper’s prior written consent. Any attempted assignment of such rights or obligations without Shipper’s prior written consent shall be void. Shipper, however, may assign, delegate, or transfer its rights and obligations under any Shipment, Shipment Document, and/or Terms, in whole or in part, to any Affiliate.
- Binding Effect. These Terms shall apply to and bind the successors and permitted assigns of the parties.
- Captions. All captions, titles, headings, and divisions are for purposes of reference and convenience only and may not be construed to limit or affect the interpretation of the Terms.
- Change of Terms. Shipper may change these Terms at any time by publishing the updated Terms to its Website. Carrier’s acceptance or delivery of Shipper’s Products shall constitute acceptance of the amended Terms.
- Confidentiality. Carrier shall: (a) maintain as confidential and proprietary all information provided by Shipper pursuant to or otherwise in connection with the Shipment (“Shipper’s Information”); (b) not divulge or disclose any of Shipper’s Information to third parties without prior written consent of Shipper; (c) not use any of Shipper’s Information to the detriment of Shipper or to the benefit of third parties; and (d) return all of Shipper’s Information to or as directed by Shipper upon termination or expiration of the Shipment or as otherwise requested by Shipper.
- Contract Carriage. All Services are provided as “contract carriage” within the meaning of 49 U.S.C. § 13102(4)(B). Carrier waives any and all rights and remedies available under 49 U.S.C. Subtitle IV, Part B to the full extent permitted by 49 U.S.C. § 14101(b)(1).
- Costs/Attorney Fees. Carrier agrees to compensate Shipper for all reasonable costs and expenses of any kind, including, without limitation, attorney, paralegal, and other professional fees, actually incurred and reasonably necessary in connection with any efforts by Shipper to enforce a right or obligation relating to any Shipment which take place outside of suit, action, arbitration, or other legal proceeding. In the event that a suit, action, arbitration, or other legal proceeding of any nature whatsoever is brought relating to a Shipment, Shipment Document, and/or these Terms, or any of the rights or obligations under a Sale and/or these Terms, each party shall pay its own attorney, paralegal, and other professional fees, as well as any and all other fees, costs, and expenses of any kind actually incurred and reasonably necessary in connection herewith, and including such fees, costs, and expenses incurred in any appellate or review proceeding, or in collecting any judgment or award, or enforcing any decree rendered with respect thereto.
- Drug-Free Workplace. Carrier understands that Shipper maintains a drug and alcohol free workplace. Carrier covenants that Carrier has, and with respect to Carrier’s agents, representatives, employees, and subcontractors, will implement and enforce Carrier’s own policies and procedures to ensure maintenance of drug and alcohol free workplaces at least in compliance with Applicable Law.
- Force Majeure. Shipper shall not be responsible for, and no liability shall result to Shipper in connection with, any delays in delivery or in performance which result from any circumstances beyond Shipper’s immediate control, including, without limitation, Carrier delays, foreign or domestic embargoes, seizures, acts of God, insurrections, wars, pandemics, adoption or enactment of any new laws, ordinances, or regulations, fires, floods, explosions, weather events of any kind, labor or workforce stoppages or strikes, extraordinary currency devaluations, taxes or custom duties, or any other similar events or contingencies.
- Governing Law and Venue. Pacific operates the Website from its offices in Clackamas, Oregon in the United States of America. These Terms shall be construed and enforced according to the laws of the STATE OF OREGON notwithstanding any conflict-of-law principle that might implicate the laws of any other jurisdiction governing the same. Venue for legal proceedings of any nature whatsoever relating to or otherwise involving a Sale and/or these Terms shall be CLACKAMAS COUNTY, OREGON. Carrier consents and submits to the jurisdiction of any state or federal court located in the STATE OF OREGON.
- Merger. These Terms constitute the entire agreement between Carrier and Shipper pertaining to the Shipment, Shipment Documents, and Products and supersede any prior or contemporaneous agreements, understandings, negotiations and discussions, whether written or oral, except as specifically set forth herein.
- Modification. No change, modification, or amendment of these Terms as they apply to the Shipment shall be effective unless made via separate written agreement signed by authorized representatives of both Shipper and Carrier. Such change, modification, or amendment shall apply only to the specific Shipment to which the change, modification, or amendment relates and shall not apply to any future Shipment.
- Notices. Any notice to Shipper in connection with any Shipment shall be in writing and delivered to the Shipper’s Contact listed on the Shipment Document, with a copy to Pacific Seafood Group, Attn: Legal Department, 16797 SE 130th Ave., Clackamas, OR 97015. All notices to Shipper shall be delivered via overnight courier requiring a signature for delivery, or received by Registered or Certified Mail, postage prepaid, return receipt requested.
- Relationship. Carrier is an INDEPENDENT CONTRACTOR. No past relationships or course of dealings between Carrier and Shipper shall affect Carrier’s status as an independent contractor. Any and all persons engaged by Carrier in connection with the Shipment shall be deemed to be Carrier’s agents or employees and not Shipper’s agents or employees. No provision of these Terms or any Shipping Document or any act of the parties pursuant to this Agreement shall be construed to express or imply a joint venture, partnership, principal-agent relationship, or employer-employee relationship. As an independent contractor, Carrier shall have the sole and exclusive responsibility for all costs incurred in providing the Services and over the manner in which its employees and/or independent contractors perform the transportation service, including the equipment provided. No employee, agent or other representative of either party shall at any time be deemed to be under the control or authority of the other party, or the joint control of both parties. Carrier assumes full responsibility for the payment of federal, state, and local taxes or contributions or taxes for unemployment insurance, pensions, workers’ compensation, and related matters with respect to the persons engaged by Carrier in the performance of the Services and agrees to comply with all applicable federal, state, and local laws, ordinances, regulations, and rules as they may apply to the Services rendered under this Agreement, including all hazardous material requirements. Carrier will indemnify and hold harmless Pacific from any liability, loss, or expense including reasonable attorney’s fees incurred by Shipper on account of any matter relating to Carrier’s negligent failure to comply with such applicable federal, state, and local laws, ordinances, regulations, or rules. Nothing in either the Terms or any Shipment Document shall be construed to grant Carrier an exclusive right to perform Services for Shipper and/or Pacific.
- Set Off. Shipper, Pacific, and/or its Affiliates shall have the right at all times to set off any amount owing to or from Carrier in connection with any Shipment or pursuant to any other agreement with Carrier.
- Severability. If any provision becomes or is found to be illegal, unenforceable, void, or voidable, then such clause or provision shall be modified to the extent necessary to make it legal and enforceable. If modification of such provision is not possible, then it shall be severed from the remainder of the Shipment and/or Terms so that the remainder may remain in full force and effect.
- Social Responsibility. Carrier shall employ the highest ethical, human rights, social responsibility, and sustainability principles in connection with its business, operations, and processes, and in its selection and use of equipment, subcontractors, and other service providers. Carrier acknowledges that it is committed to implementation of stringent environmental standards and to utilization of sustainable technologies and initiatives, with the goals of reducing environmental impacts and protecting natural resources from permanent damage or depletion. Carrier shall provide Pacific, upon request, with documentation to support this commitment.
- Survival. Any provisions of these Terms which by their nature are intended to survive termination, expiration, cancellation, or completion of a Shipment (including, without limitation, Confidentiality, Indemnification, Representations and Warranties, Further Assurances, and Survival) shall survive and continue as valid and enforceable obligations notwithstanding termination, expiration, cancellation, or completion of the Shipment.
- Time. Time is of the essence with respect to any and all provisions which specify a deadline for performance.
- Waiver. No waiver of any breach shall be deemed to be a waiver of any other or any subsequent breach, whether or not similar, nor shall such wavier constitute a continuing waiver unless expressly provided. The failure of either party to exercise or enforce any provision shall not constitute a waiver of the provision and shall not preclude or prejudice such party from later enforcing or exercising the same, or any other, provision.
FREIGHT, ACCESSORIAL, AND OTHER CHARGES
Basic Freight Charges. Shipper will pay Carrier a basic freight charge in the amount or at the rate specified in the Shipment Document for Services rendered in connection with each Shipment.
Mileage Computation. Shipper has specific processing locations in the United States and specific customer locations where its product is to be shipped from and delivered to. To meet Shipper’s distinct needs for specialized Carrier services, Carrier agrees as follows:
- Deliveries shall be no earlier or later than specific deadline set by Shipper unless mutually agreed upon in writing (which may be electronic mail);
- Reasonable dispatch on all shipments that do not have specific delivery deadlines; and
- Carrier must notify Shipper immediately of all problems incurred in transit, such as freight damage, loss, rejection by consignee, inability to deliver on stated time or date, inability to deliver or to deliver in a reasonable time, or any other matters which may affect transportation or delivery of the goods.
Carrier agrees to provide all of the above without additional charge. Calculation differences may occur due to route changes or software errors. Any exceptions to Shipper’s calculated mileage must be negotiated and agreed to by Shipper.
Fuel Surcharge. In consideration of the volatile nature of fuel costs (i.e. significant or unusual increases for periods exceeding FOURTEEN (14) days), a fuel surcharge may be negotiated and applied in connection with certain individual Shipments upon Shipper’s advance written consent. Fuel surcharges must be billed as a separate charge on the freight bill. Fuel surcharges apply only to the specific Shipment for which the charge is negotiated and agreed.
Accessorial Charges. Shipper consents to pay accessorial charges to Carrier as detailed in this Exhibit. Accessorial charges must be billed as a separate charge on the invoice by Carrier with appropriate backup paperwork attached. Attachments must include a copy of the signed Bill of Lading.
Detention of Trailer (with Tractor). Shipper shall be allowed TWO (2) hours to complete loading/ unloading and release of Carrier equipment for dispatch without charge. If Shipper fails to complete loading/ unloading and release for dispatch within such period, then Shipper shall pay Carrier a detention charge agreed upon by Shipper and Carrier for each hour or fraction thereof in excess of the initial TWO (2) hour period, up to a maximum of $500 per twenty-four hour period.
Forwarding and Documentation Services. Shipper shall be responsible for any costs required in connection with forwarding and documentation services for international or coastal intermodal service.
In-Transit Stop-Off / Drop. A single shipment may be stopped at the direction of Shipper for partial loading or partial unloading; provided, however, that in the event of any in-transit stop at the direction of Shipper or Shipper’s consignee, Shipper shall pay Carrier an agreed upon amount, in addition to other freight charges due, for each mile required to deviate from the most practical route otherwise to be traversed from origin to destination.
Loading and Unloading. If the Services include loading and unloading, Carrier shall only be responsible for loading and unloading to the extent that such services can be physically performed without mechanical assistance. If Shipper or Shipper’s consignee requires the use of a lumper (third-party loader or unloader), then Shipper will be responsible for payment of such lumping and/or guarantee the payment of any actual charges Carrier may incur. If any loading and/or unloading is done by an operator of Carrier beyond the tailgate, including sorting or stacking or similar service, then Shipper will pay Carrier an amount to be negotiated and agreed to by Shipper.
Billing Weight. If freight charges are to be assessed in whole or part based on billing weights, then such weights will generally be based on scale weight. Shipper may, however, utilize uniform or standard weights for convenience. Weight shall include protective materials used by Shipper in preparing the lading for shipment.
Exclusive Use. If the freight Shipper tenders does not fill the capacity of the trailer Carrier furnishes and additional freight of another shipper may be hauled without jeopardizing the integrity of the freight Shipper tenders, then Carrier may utilize such additional freight unless Shipper indicates that exclusive use of the vehicle is required. Carrier may not assess additional charges for exclusive use of the trailer.
Permits. Carrier is responsible for securing any and all necessary permits.
Re-Consignment. If Shipper re-consigns or otherwise changes the destination of a Shipment, then the applicable rate shall be the rate that would have applied had Carrier originally been directed to deliver the Shipment to the new destination via the location where the Shipment was located at the time it was re-consigned.
Re-Delivery. If a delivery cannot be accomplished through no fault of Carrier, Carrier shall notify Shipper and request redelivery instruction from Shipper.
Split Pickups on Shipper Premises. If Carrier is required to make pickups at two or more sites on a premises, an additional charge of $50 per pickup (exclusive of the initial pickup) may be assessed to Shipper.
Tracking and Tracing. Carrier shall make available in-transit load position and related load delivery status and tracing information. Carrier may not assess additional charges to respond to Shipper’s reasonable inquiries by telephone, e-mail, or other method requiring personal contact and responses regarding position and/or delivery status.
SANITATION AND TEMPERATURE REQUIREMENTS1
- Trailers must be precooled to an internal ambient air temperature appropriate for the type of food product being transported before loading.
- Trailers must maintain an internal ambient air temperature appropriate for the type of food product being transported throughout transit.
- The original quality and condition of all food products being transported must be maintained throughout transit (e.g., frozen must remain frozen, fresh must remain fresh).
- Internal ambient air temperature must never exceed 38° Fahrenheit while food products are on board.
- All equipment (including trailers) must be in suitable condition, clean, and free of moisture and offensive odors. Trailers shall be in good order and repair, with no evidence of pest activity and free of foreign substances such as glass, chemicals, or odors. Freight should not show evidence of tampering or other unusual conditions.
- The interior of trailers, trucks, or cars shall be free of loose or broken boards, nails, and/or holes in sheet metal sides that could cause contamination of goods being transported or which could be conducive to pest harborage.
- Any raw material, ingredients, food products, intermediate/semi-processed products, and/or packaging materials transported in messy or dirty equipment or trailers with unpleasant odor and/or evidence of pest activity will not be accepted. Actual observation of leaking cases across different allergen groups or raw to cooked is direct cause for rejection.
- All equipment (including trailers) shall be dedicated for food product use only unless other products being transported are fully contained in an enclosed container and appropriate barriers are established and maintained to prevent cross-contact with and/or contamination of food products. In no event is it permissible to employ equipment or materials which have ever been used to haul garbage, trash, hazardous waste, or Division 6.1 Poisonous/Toxic Material (as defined by 49 CFR §173.132).
1 Sanitation and Temperature Requirements are intended to satisfy the FSMA Final Rule on Sanitary Transportation of Human and Animal Food (21 CFR Parts 1 and 11) (the “Rule”). Transportation of live food animals (except molluscan shellfish) does not constitute “transportation operations” under the Rule and is therefore exempt from Sanitation and Temperature Requirements.