CARRIER/BROKER AGREEMENT

This Terms and Conditions (“Agreement”) governs the relationship between the entity or person that accepts the terms and conditions of this Agreement by signing or accepting this Agreement (“You,” “Your,” or “User”) and Heritage Logistics, LLC. (“Us,” “Our,” “We,” or “Broker”). For the purpose of this Agreement, You and Broker may each be referred to as a “Party” and collectively as the “Parties.”

I.

Recitals

1. WHEREAS BROKER is licensed as a property broker by the Federal Motor Carrier Safety Administration (“FMCSA”), or by appropriate State agencies, and as a licensed broker, arranges for freight transportation; and

2. WHEREAS You are authorized to operate in inter-provincial, interstate and/or intrastate commerce and is qualified, competent and available to provide for the transportation services requested by and directly for BROKER (the “Services”); and

         NOW THEREFORE, intending to be legally bound, BROKER and You agree as follows:

II.

Agreement

1. TERM AND TERMINATION. The Term of this Agreement shall be for one (1) year from the date first set forth above and shall automatically renew for successive one (1) year periods; provided, however, that either PARTY may terminate this Agreement at any time by giving thirty (30) days prior written notice.

2. YOUR OPERATING AUTHORITY AND COMPLIANCE WITH LAW. You represents and warrants that it is duly and legally qualified in accordance with all federal, state, provincial, territorial, and local laws, statutes, regulations, rules, and ordinances (collectively, “Applicable Law”) to provide, as a for-hire carrier, the Services contemplated herein. You further represents and warrants that it does not have an unsatisfactory or unfit safety rating issued by any regulatory authority with jurisdiction over Your operations, including, but not limited to, the Federal Motor Carrier Safety Administration (“FMCSA”) of the U.S. Department of Transportation (“DOT”). You further agrees to comply with all Applicable Law in the performance of its Services under this Agreement. In the event that You receives an unsatisfactory or unfit safety rating, 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, You shall immediately notify BROKER of such fact and shall not carry any loads or goods tendered to You by BROKER until such prohibition on operations is removed.

3. PERFORMANCE OF SERVICES.

4. 1. Notwithstanding anything to the contrary herein, the PARTIES may elect to do business pursuant to this Agreement by utilizing the third-party transportation management system and load board offered through Trux, Inc. (the “Trux Platform”). If You utilizes the Trux Platform to provide Services, You represents and warrants all copies or other proofs of insurance, licenses, permits, authorities, and other applicable qualifications required by and uploaded to the Trux Platform, and to which BROKER has access, are updated and effective and reflect Your current operations. Any shipment or other request for Services offered through the Trux Platform by BROKER and accepted through the Trux Platform by You shall be subject to this Agreement. If the PARTIES utilize the Trux Platform, any reference throughout this Agreement to providing notice, as well as submitting or otherwise exchanging information or documentation shall contemplate the PARTIES’ utilization of the Trux Platform to complete the same. To the extent any terms or provisions in the Trux Terms and Conditions, and other documentation applicable to use of the Trux Platform, conflict with or contradict this Agreement, this Agreement shall supersede and control.

   2. You shall be solely responsible for controlling the method, manner and means of accomplishing Your Services. You or your driver are responsible for determining the appropriate route for transportation. Any directions provided by BROKER to You, directly or through the Trux Platform, are provided as a convenience only and You shall have no obligation to follow such routing directions. Upon request, You shall provide BROKER, or otherwise ensure BROKER has access to (including via the Trux Platform), information regarding shipment status.

   3. Your Services under this Agreement are designed to meet the needs of BROKER under the specified rates and conditions set forth herein. You agrees that the terms and conditions of this Agreement, as well as BROKER’s online terms and conditions (available through BROKER’s website), apply to all shipments handled by You for BROKER and that the terms of this Agreement control the relationship between the PARTIES. To the extent any terms and conditions in this Agreement conflict with or are inconsistent with BROKER’s online terms and conditions, this Agreement supersedes and governs. Regardless of whether they are required by law, in no event shall any provisions of Your tariff, terms and conditions, service guide, bill of lading, or similar documentation apply to Services provided under this Agreement.

   4. You shall transport all shipments provided under this Agreement without delay, and all occurrences which would be probable or certain to cause delay shall be immediately communicated to BROKER by You. This Agreement does not grant You an exclusive right to perform any transportation related Services for BROKER, nor does this Agreement grant You any right to perform services directly for any entity that has retained BROKER (hereinafter, the “Shipper”). BROKER is not obligated to use Your services, but if BROKER makes use of Your services, this Agreement will apply.

   5. Any equipment used by You to transport cargo pursuant to this Agreement shall be used exclusively for such purpose while loaded with cargo tendered by BROKER, and in no event will property of any other party be loaded on such equipment unless BROKER expressly consents thereto in writing.

5. RECEIPTS AND BILLS OF LADING. Each shipment hereunder shall be evidenced by a bill of lading or other document acceptable to BROKER naming You as the transporting carrier. The fact that BROKER is named as a “carrier” upon any applicable bill of lading or other document shall not affect its status as a property broker. Upon delivery of each shipment made hereunder, You shall obtain a receipt showing the kind and quantity of product delivered to the consignee of such shipment at the destination specified by BROKER or the Shipper, and You shall cause such receipt to be signed by the consignee if requested by BROKER. The bills of lading or other documents are intended to act as a receipt only. Except as otherwise stated herein, no terms, conditions or provisions of the bill of lading, manifest, scale ticket, or other form of receipt or contract shall apply to Services provided under this Agreement. Your failure to issue a bill of lading or other document shall not affect its liability hereunder. You shall notify BROKER immediately of any exception made on the bill of lading, delivery receipt, or other document.

6. YOUR OPERATIONS.

1. 1. You shall, at its sole cost and expense:

      1. furnish all equipment necessary or required for the performance of its obligations hereunder (the “Equipment”);

      2. pay all expenses related, in any way, with the use and operation of the Equipment; and

      3. maintain the Equipment in good repair, mechanical condition and appearance; and

      4. maintain records of Equipment use which will be provided to BROKER upon request.

   2. You shall be responsible for the acts and omissions of each of its employees, agents, representatives, contractors, subcontractors, and any other individuals used in the performance of transportation of shipments tendered by BROKER hereunder and shall utilize only competent and able personnel that are legally licensed in accordance with all Applicable Law to perform the Services hereunder. You shall have full control of any personnel used in the provision of Services hereunder. You shall be solely responsible for ensuring, and will ensure, at Your cost and expense, that such personnel are fully qualified to perform Services hereunder, and that such personnel have access to all locations into which access is necessary to perform Services under this Agreement. Without limiting the foregoing, You 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. You 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.

   3. You shall perform the Services hereunder as an independent contractor, and assumes complete responsibility for all state and federal taxes, assessments, insurance (including, but not limited to, workers’ compensation, unemployment compensation, disability, pension and social security insurance) and any other financial obligations arising out of the transportation performed hereunder.

   4. You shall be solely responsible for compliance with all provisions of Applicable Law regarding overdimension and overweight loads and air quality and environmental standards.

   5. You will 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.

   6. In the event You are requested to transport waste or hazardous materials, You represents and warrants that You have obtained all necessary federal, state and provincial permits and registrations to transport hazardous materials or waste in inter-provincial, interstate and/or intrastate commerce. Upon request, You shall provide BROKER with a copy of all such federal and state permits and registrations. You further represents and warrants that: (i) it is in compliance with any and all Applicable Law related to such transportation, including, but not limited to 49 C.F.R. Parts 171-178; (ii) all drivers used to transport such shipments have undergone the necessary training requirements of all Applicable Law; 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. You acknowledges and agrees that BROKER’s sole obligation regarding information-disclosures related to 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 Shipper. BROKER shall have no obligation to independently verify the accuracy of such information or documentation.

   7. With respect to Your general business operations, You represents and warrants, as well as agree to provide BROKER, upon BROKER’s request, all necessary supporting documents, information, and materials necessary to confirm, the following:

      1. Your operations and Services are free from any direction and control by BROKER with respect to the performance of the work.

      2. Your performance of Services is in response to BROKER’s request and directly performed for BROKER. You do not provide any Services directly for any of BROKER’s Shippers.

      3. You has obtained, and shall maintain at all times, any applicable license, permit, and/or tax registration, required by Applicable Law, necessary for You to operate its business.

      4. You maintain and operate out of its headquarters or other primary business location, located at _____________________________________________________.

      5. You are customarily engaged in the business of providing for-hire motor carrier services to the public, including to property brokers. This business is independent from that of BROKER’s.

      6. You provide motor carrier services for Your own, separate clientele, including under separate motor carrier services agreements. You acknowledges and understands BROKER does not prohibit or otherwise restrict Your ability to provide services and engage in such business dealings with Your separate clientele.

      7. You actively advertise Your motor carrier services and holds yourself out to the public as an available for-hire motor carrier.

      8. You provides Your own tools, vehicles, and all other equipment necessary to provide the Services. Moreover, CARRIER determines its own hours of operations and business location(s).

      9. You negotiate Your own rates and, with respect to this Agreement, has had the opportunity to negotiate rates with BROKER.

      10. You are not performing the type of work for which a license is required by the California State License Board, pursuant to Chapter 9 (commencing with Section 7000) of Division 3 of the California Business and Professions Code.

   8. You understand and agree that BROKER’s Shippers require that BROKER provide real time tracking of shipments while in transit and as such that BROKER may request or obtain GPS tracking information that would have the effect of tracking the location of Your driver. You warrant and represent that Your obtained driver consent to allow BROKER to perform such tracking and, where relevant, to share driver tracking information obtained by You with BROKER.

   9. You understand and agree that, while operating equipment at any time in California, You must comply with all applicable regulations promulgated by the California Air Resources Board (“CARB”) in addition to any other applicable environmental or emissions laws in the State of California. You are responsible for understanding the applicable regulations. The below description is not intended to be, nor to be relied on as, a full description of the applicable legal requirements.

      1. CARB Truck and Bus Regulation (Title 13, California Code of Regulations, Section 2025) (“TBR”): The TBR generally requires trucks operating in California to be equipped with 2010 or newer engine model years. Prior to Your transporting any shipment subject to this Agreement that originates in, is destined for, or moves through California, You shall submit to BROKER evidence that You are in compliance with the TBR. This evidence shall be submitted annually by January 31st of each year thereafter during the term of this Agreement. Evidence of compliance shall include the following:

         1. A Certificate of Reported Compliance issued by CARB through reporting via the Truck Regulation Upload, Compliance, and Reporting System (“TRUCRS”); or

         2. If CARRIER does not report via TRUCRS, a dated and signed written statement certifying that You are aware of its obligations under the TBR and provides engine model year information and any other information requested by BROKER about trucks to be used in operations in California.

      2. CARB Transportation Refrigeration Unit Airborne Toxic Control Measures Regulation (Title 13, California Code of Regulations, Section 2477 et seq.) (“TRU”): Motor carriers can only dispatch trucks and trailers equipped with trailer refrigeration units that are compliant with the TRU and/or are prohibited from operating non-compliant trailer refrigeration units in California. CARRIER shall, regardless of TRU obligations, register all trailer refrigeration units to be operated in California and provide BROKER proof of such registration and compliance with the TRU.

      3. CARB Tractor-Trailer Greenhouse Gas Regulation (Title 13, California Code of Regulations, Section 95301 et seq.) (“GHG”): The GHG generally requires motor carriers to use aerodynamic tractors and trailers that are also equipped with low rolling-resistance tires when operating in California.

      4. CARB Heavy-Duty Inspection and Maintenance Program (Title 13, California Code of Regulations, Section 2195 et seq.) (“Clean Truck Check”): The Clean Truck Check generally requires motor carriers to report their vehicles to CARB, pay a compliance fee, and submit to periodic emission testing.

      5. CARB Advanced Clean Fleets Regulations (Title 13, California Code of Regulations, Section 2013 et seq. (Drayage Trucks) and Section 2014 et seq. (High Priority Fleets) (“ACF”): The ACF generally require a transition of covered equipment in fleets from diesel to zero-emission vehicles. CARRIERS with fleets not subject to the ACF shall submit a signed statement certifying they are not subject to the ACF. Vehicles with a GVWR greater than 8,500 lbs. and light-duty package delivery vehicles operated in California may be subject to the California Air Resources Board Advanced Clean Fleets regulations. Such vehicles may therefore be subject to requirements to reduce emissions of air pollutants. For more information, please visit the CARB Advanced Clean Fleets webpage at https://ww2.arb.ca.gov/our-work/programs/advanced-clean-fleets.

      6. You warrant and represent that all equipment used to transport a shipment subject to this agreement and operated in California shall fully comply with such CARB laws. You further certify that You will not operate any equipment in California unless such equipment is compliant with such CARB laws.

      7. You agree to provide the following BROKER contact information to drivers it uses to transport shipments in California subject to this Agreement:

Heritage Logistics, LLC
c/o Trux, Inc.
PO Box 540230
Waltham, MA 02454
insurance@truxnow.com​ 

6. RATES & PAYMENTS.

1. 1. Unless otherwise agreed in writing, the PARTIES agree to utilize the Trux Platform, Where the Trux Platform is used, You will submit documentation necessary to determine payment via the Trux Platform and BROKER will pay the rates and charges agreed to by the PARTIES and memorialized in the applicable Shipment Assignment or other documentation exchanged via the Trux Platform. The PARTIES agree, for the avoidance of doubt, and not by way of limitation: (i) any invoices or documentation submitted or payments made by Trux, on behalf of You, to BROKER shall constitute Your submission or payment of the same, and (ii) any payments made by Trux, on behalf of BROKER, to You shall constitute BROKER’s satisfaction of the corresponding payment obligations hereunder. Payment conditions and timing shall be as set forth in the applicable Trux Terms and Conditions and the PARTIES hereby expressly agree to such payment timing as set forth therein.

   2. If the PARTIES do not utilize the Trux Platform, all applicable rates and charges for transportation Services pursuant to this Agreement are as set forth in Appendix A or otherwise agreed to by You and BROKER in writing and signed by both PARTIES. You will send invoices or other documentation required to process payment to BROKER. You represent and warrant that there are no other applicable rates or charges except those established in this Agreement. Appendix A can be supplemented or revised only by written agreement signed by both PARTIES. In no event will BROKER be responsible for payment of such rates unless paid by Shipper. Without limiting the foregoing, BROKER must receive notice from You at least sixty (60) minutes prior to the time when detention would start to accrue.

   3. In the event Service is provided and it is subsequently discovered that there was no applicable or understood rate in Appendix A or via the Trux Platform, as applicable, the PARTIES agree that the rate paid by BROKER and collected by You shall be the agreed upon contract rate of the PARTIES for the Services provided, unless such rate is objected to by You in writing within 10 days of payment.

   4. If the PARTIES do not utilize the Trux Platform, payment by BROKER will be made within thirty (30) days of receipt by BROKER of Your freight bill, bill of lading, clear delivery receipt, and any other necessary billing documents enabling BROKER to ascertain that Service has been provided at the agreed upon charge. As a condition to payment, You shall provide BROKER with a legible copy or photocopy of the bill of lading or other proof of delivery.

   5. Your failure to provide BROKER with a legible copy or photocopy of the bill of lading or other proof of delivery will result in You being held responsible to BROKER for any and all revenues that are uncollected by BROKER because of Your failure to provide needed support paperwork to BROKER.

   6. You agrees that BROKER has the exclusive right to handle all billing of freight charges to the Shipper for the transportation Services provided herein, and, as such, You agrees to refrain from all collection efforts against the shipper, receiver, or the Shipper unless BROKER, in its sole discretion, expressly authorizes You in writing to collect from any such party, in which case, Your sole recourse will be against such party. In the event BROKER authorizes You in writing to collect from any party other than BROKER, the PARTIES acknowledge and agree this does not change the nature of the Services as being performed directly for BROKER, not the party to which You reaches out for such payment. Upon Your receipt of payment by BROKER, any right of Your to payment from the Shipper or any other third-party for Services performed will be automatically assigned to BROKER.

   7. You further agrees that BROKER has the discretionary right to offset any payments owed to You hereunder for liability incurred by You, including, but not limited to, claims for freight, loss, damage, or delay.

   8. You shall submit all freight bills or documents necessary for payment within 24 hours of delivery or waive its right to payment for Services rendered with respect to such late submitted invoices. This period may be extended by written agreement of the parties for good cause shown, but You shall, in no event, submit documents necessary for payment more than seven (7) days following delivery. Assuming You has complied with the foregoing invoicing obligations, You shall bring suit related to unpaid freight charges or undercharges within 18 months of the date of delivery or Your right to sue or otherwise seek payment shall be waived.

   9. You shall provide BROKER with written notice providing BROKER with remittance instructions (“Notice of Release”) in the event You enters into any factoring, assignment, pledge, hypothecation, or granting of a security interest in Your right to payment under this Agreement (“Factoring”). Any Factoring shall in no event modify, limit, or terminate BROKER’s or its Shipper’s right to offset or recoup or claims of BROKER or its Shipper for offset, recoupment, loss, or damage to any cargo or other property, including personal injury, or any other claim which BROKER or its Shipper may have against You for any reason. All of BROKER’s and its Shipper’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 Shipper to the contrary. You shall notify any such factor, secured creditor, or assignee of BROKER’s and its Shipper’s rights in this regard. Further, if BROKER discovers that You has not provided a valid Notice of Release, YOu shall be deemed in breach of this Agreement and BROKER may at its sole discretion terminate this Agreement. BROKER’s remittance of payment in accordance with any Notice of Release shall be deemed payment to You in all regards and shall absolve BROKER of any liability with respect to payment to CARRIER for the services underlying such invoice. Should You 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 You for the services in question.

7. WAIVER OF YOUR LIEN. You shall not withhold any goods transported under this Agreement on account of any dispute as to rates or any alleged failure of BROKER to pay charges incurred under this Agreement. You are relying upon the general credit of BROKER and hereby waives and releases all liens which You might otherwise have to any goods of BROKER or its Shipper in the possession or control of You.

8. FREIGHT LOSS, DAMAGE OR DELAY.

1. 1. You shall have the sole and exclusive care, custody and control of the cargo tendered hereunder from the time it is delivered to You for transportation until delivery to the consignee accompanied by the appropriate receipts. You shall notify BROKER immediately in the event any such cargo is lost (including stolen), damaged or destroyed, or in the event You becomes aware that applicable delivery schedules will not be met.

   2. You assumes the liability of a motor carrier under the Carmack Amendment as currently codified at 49 U.S.C. § 14706 for loss, delay, damage to or destruction of any and all goods or property tendered to You pursuant to this Agreement from the time the shipment is tendered to You until delivery regardless of whether such standard would apply in the absence of this Agreement. You will also be solely liable for any and all costs of clean-up and remediation associated with any release of cargo.

   3. You shall be liable for the full invoice value of the cargo lost, damaged, delayed, or destroyed, as well as any additional costs or fees imposed upon BROKER by the cargo claimant. No limitation of liability shall apply.

   4. Should BROKER or its Shipper incur costs to collect amounts owed by You pursuant to this article, in addition to the amounts owed by You hereunder, You will be liable to reimburse any and all such costs including, but not limited to, reasonable attorney fees.

   5. You 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. You shall pay to BROKER, or allow BROKER to deduct from the amount BROKER owes You, the full actual loss for the kind and quantity of commodities so lost, delayed, damaged or destroyed. Payments by You to BROKER, pursuant to the provisions of this section, shall be made within thirty (30) days following receipt by You of BROKER’s undisputed claim and supporting documentation. You shall fully assist BROKER in investigating any claim for cargo loss, damage, delay, or destruction.

   6. You waives any right to salvage goods subject to this provision, as well as any right to claim an offset for the value of salvage.

   7. Exclusions from coverage contained in Your Cargo insurance as required herein shall not affect Your liability for freight loss, damage, or delay.

   8. Without limiting Your contractual liability to BROKER hereunder, You acknowledges and agrees that BROKER may pursue claims for cargo loss and damage hereunder on behalf of the Shipper, and in such instances is not required to obtain an assignment of claim from the Shipper in order to pursue such a claim.

9. INSURANCE. You shall procure and maintain, at Your sole cost and expense, the following insurance coverages. Documentation of such coverages shall be submitted via the Trux Platform unless otherwise agreed in writing by the PARTIES:

1. 1. Commercial automobile liability (“AL”) insurance in an amount not less than $1,000,000.00 per occurrence, or such larger amount as required by Applicable Law.

      1. Alternative Coverage for You acting as “Non-Asset Brokers” on the Trux Platform. Where a You utilizes approved subcontracted parties who (1) are registered on the Trux Platform; (2) have AL coverage that complies with the terms of paragraph 9(a), and (3) have named BROKER as an additional insured on the AL coverage, the You may, in lieu of AL coverage as described in paragraph 9(a), obtain Commercial General Liability (“CGL”) insurance in an amount not less than $1,000,000.00 per occurrence. You agrees that it shall be liable for the activities of any claims arising out of the acts or omissions of such subcontracted parties as if it were the owner of the vehicle subject to any claim.

   2. Statutory Workers’ Compensation Insurance coverage in such amounts and in such form as required by applicable state law.

   3. All insurance policies required by this Agreement shall, as applicable, (i) be primary to any other insurance and any other insurance shall be noncontributory until Your insurance is exhausted, (ii) You shall furnish to BROKER, via the Trux Platform, written certificates obtained from the insurance carrier showing that such insurance, including copies of the required endorsements, has been procured, is being properly maintained, the expiration date, and specifying that written notice of cancellation of the policies shall be given to BROKER at least ten (10) days prior to such cancellation. In addition, BROKER shall be named as an additional insured on Your policies as evidenced by an endorsement on the certificates of insurance.
      
      The Certificates of Insurance shall indicate the Certificate Holder as follows:
      
      Heritage Logistics, LLC
      c/o Trux, Inc.
      PO Box 540230
      Waltham, MA 02454
      
      You shall submit any and all Certificates of Insurance evidencing all required coverages and limits to Support@heritage-logisitics.com. ​

   4. Upon request of BROKER or its designated insurance consultant, You shall provide BROKER or BROKER’s consultant with copies of the applicable insurance policies, including all policy declarations proof of insurance identification card, and proof of premium payment. You will not conduct any operations not covered by its insurance policies. Without limiting the foregoing, if any of Your insurance policies limit coverage to certain scheduled automobiles or drivers, You will provide BROKER up-do-date schedules of all scheduled drivers and/or vehicles (including any amendments thereto) and will only use currently scheduled drivers and vehicles in the performance of services under this Agreement. You will file claims with its insurer and will actively communicate with the insurer and provide information requested by the insurer, and provide claims information to BROKER as requested. You understand and agree that insurance limits are not a cap on liability arising from or related to this Agreement.

   5. Neither Your procurement of insurance nor BROKER’s receipt of, acceptance of, rejection of, or failure to object to any insurance, certificates, or policies waives, releases, or limits any of Your liabilities or obligations under this Agreement. BROKER shall not be obligated to review certificates or other evidence of insurance, or to advise You of any deficiencies in such documents, and receipt thereof shall not relieve You from, nor deemed to be a waiver of BROKER’s right to enforce, the terms of the Your obligations hereunder.

10. INDEMNITY. You shall defend, pay, reimburse, indemnify, and hold BROKER, the Shipper, and each of their affiliated entities harmless from and against, and will pay and reimburse them for, 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 You, Your employees or independent contractors working for You (collectively, the “Claims”), including, but not limited to, Claims for or related to personal injury (including death), property damage (excluding cargo, which Your liability for such is addressed in Section 8 of this Agreement) and Your possession, use, maintenance, custody or operation of the Equipment; provided, however, that Your indemnification and hold harmless obligations under this section 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. You 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 Your obligations under this provision.

11. CONFIDENTIALITY AND NON-SOLICITATION.

1. 1. You shall not disclose the terms of this Agreement to a third party without the written consent of BROKER except as required by law or regulation. In addition, in no event will You disclose any information regarding BROKER’s or its Shippers’ business or operations (including Shipper identities, locations, volumes, etc.), the rates for Services agreed between BROKER and You, or the rates paid by BROKER to You with respect to Services hereunder.

   2. While this Agreement is in effect and for eighteen months following termination or expiration, You will not accept traffic, either directly or indirectly, from any shipper, consignor, consignee or customer of BROKER where: (a) the availability of such traffic first became known to You as a result of BROKER’s efforts; or (b) the traffic of the shipper, consignor, consignee or customer of BROKER was first tendered to You by BROKER. If You breache this paragraph, You shall be obligated to pay BROKER commissions in the amount of thirty-five percent (35%) of the transportation revenue resulting from traffic transported in violation of this paragraph, and You shall provide BROKER with all documentation requested by BROKER to verify such transportation revenue. You shall not utilize BROKER’s name or identity in any advertising or promotional communications without written confirmation of BROKER consent.

12. SUB-CONTRACT PROHIBITION. You specifically agrees that all freight tendered to it by BROKER shall be transported on equipment operated only under the for-hire motor carrier authority of You, and that You shall not in any manner sub-contract, broker, or in any other form arrange for the freight to be transported by a third party unless the PARTIES agree to such an arrangement in writing. Any lease arrangement between You and any third party will be deemed to be a lease pursuant to 49 C.F.R Part 376 pursuant to which You assumes exclusive use, possession and control of the lessor’s equipment, which such lease will result in the lessor’s equipment being operated pursuant to Your for-hire motor carrier authority and any operations of the lessor will be operations of You subject to this Agreement. Where You authorize a third party to transport cargo pursuant to this Agreement, You shall: (a) remain directly liable to BROKER as if You transported such freight under Your own authority and using Your own vehicles in accordance with this provision, (b) be liable for consequential and special damages arising from or related to Your offering cargo tendered by BROKER to any third party, and (c) shall further hold harmless and indemnify BROKER and its Shipper from any and all loss, liability, damage, claim, fine, cost or expense, including reasonable attorney’s fees, arising out of or in any way related to the use of any subcontractor regardless of whether arising from the conduct or omissions of You, the subcontractor, or any other third party. If You 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, You waives and forfeits any and all right to payment for services subcontracted in violation of this provision, and is liable to BROKER for any and all costs and expenses arising from or related to such breach. In addition, BROKER may, in its sole discretion, pay the underlying carrier directly, which payment will relieve BROKER of any and all payment obligations to You with respect to such load.

13. BROKER’S RECORDS. You hereby waives its right to obtain copies of BROKER’s records as provided for under 49 C.F.R. Part 371. Notwithstanding the foregoing, to the extent that You obtains records set forth in 49 C.F.R. § 371.3 by any means whatsoever, You agrees to refrain from utilizing such records in negotiating for the provision of Services with any third party, including existing customers of BROKER. You further agree and understand that all such records comprise BROKER’s confidential information and trade-secrets. Nothing in this section is intended to relieve You of any other obligations imposed upon it by this Agreement, or to limit any rights of BROKER to enforce such obligations.

14. BROKER’S RIGHT TO AUDIT. BROKER, or an authorized representative of BROKER, shall have the right to examine and audit all records and other evidence of You relating to Your operations under and compliance with this Agreement, including, but not limited to: (i) complete copies of any insurance policies maintained by You pursuant to Section 9 of this Agreement; and (ii) all necessary supporting documents, information, and materials necessary to confirm compliance pursuant to Section 5(h). BROKER may, in its sole discretion, elect to gain access to Your records pursuant to this section via the Trux Portal and/or a direct request to You and You agree to comply with any such direct request.

15. ASSIGNMENT/MODIFICATION/BENEFIT OF AGREEMENT. This Agreement may not be assigned or transferred in whole or in part by You absent the prior written consent of BROKER, and supersedes all other agreements and all tariffs, rates, classifications and schedules published, filed or otherwise maintained by You. This Agreement shall be binding upon and inure to the benefit of the PARTIES hereto, their successors and assigns. In addition, Shippers are express intended third-party beneficiaries of this Agreement.

16. SEVERABILITY. In the event that the operation of any portion of this Agreement results in a violation of any law, the PARTIES agree that such portion shall be severable and that the remaining provisions of this Agreement shall continue in full force and effect.

17. SURVIVAL. Those provisions of this Agreement which, by their terms, extend beyond the termination of this Agreement will remain in full force and effect and survive such termination.

18. WAIVER. You and BROKER expressly waive any and all rights and remedies allowed under 49 U.S.C. § 14101 to the extent that such rights and remedies conflict with this Agreement. Failure of BROKER to insist upon Your performance under this Agreement or to exercise any right or privilege arising hereunder shall not be a waiver of any BROKER’s rights or privileges herein.

19. NOTICE. All notices or other communications required or permitted by this Agreement shall be effective upon receipt; shall be in writing; and shall be sent via electronic communication (including e-mail); personally delivered; mailed by registered or certified mail, return receipt requested; sent by an overnight delivery service which provides proof of delivery; or sent by telecopy with a duplicate copy sent by first class mail, postage prepaid, as follows:

20. GOVERNING LAW, VENUE, DISPUTE RESOLUTION. This Agreement shall be deemed to have been drawn in accordance with the statutes and laws of the United States and the state where the transportation Services are performed. In the event of any disagreement or dispute, the laws of such state shall apply except to the extent superseded by applicable federal law. Any legal proceedings arising from this Agreement or the relationship of the Parties hereto shall be submitted to the court of proper jurisdiction solely and exclusively in such state, except that suit may be commenced against You in any venue permitted by claims brought under 49 U.S.C. § 14706, and if BROKER is a party to a lawsuit involving a third-party, including any Shipper, with respect to any claim with respect to which You have potential liability to BROKER, BROKER may initiate suit against You in the same jurisdiction where the lawsuit involving BROKER is pending. EACH PARTY HEREBY CONSENTS TO THE AFOREMENTIONED JURISDICTION OF SUCH COURTS, AND HEREBY IRREVOCABLY WAIVES AND AGREES NOT TO ASSERT BY WAY OF MOTION, AS A DEFENSE OR OTHERWISE IN ANY SUCH ACTION OR PROCEEDING, ANY CLAIM THAT SUCH PARTY IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF THE COURT OF APPROPRIATE VENUE AS OUTLINED ABOVE IN THIS SECTION. Notwithstanding the foregoing, the PARTIES may mutually agree in writing to submit any such disagreement or dispute to binding arbitration.

21. JURY TRIAL WAIVER. THE PARTIES TO THIS AGREEMENT DESIRE TO AVOID THE ADDITIONAL TIME AND EXPENSE RELATED TO A JURY TRIAL OF ANY DISPUTE ARISING HEREUNDER. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY TO THIS AGREEMENT HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY ON ANY CLAIM, COUNTERCLAIM, SETOFF, DEMAND, PROCEEDING, ACTION, OR CAUSE OF ACTION ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT, WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT, IN TORT, OR OTHERWISE.

22. AFFORDABLE CARE ACT COMPLIANCE. You agree to comply with all provisions of the Patient Protection and Affordance Care Act (“ACA”) applicable to Your drivers and other employees. You shall defend, hold harmless, and unconditionally indemnify BROKER and its affiliates for any claims, losses, liabilities, damages, assessable payments, or excise taxes resulting from the failure of You to comply with the ACA.

23. COMPLETE AGREEMENT. This Agreement constitutes the entire agreement of the PARTIES with reference to the subject matters herein, and may not be changed, waived, or modified except in writing signed by both PARTIES.

IN WITNESS WHEREOF, the PARTIES hereto have continued to accept the terms of this Agreement in their respective names, by Broker’s offer of shipment and Your acceptance of shipment on the Trux Platform.