Terms & Conditions

A Legal Disclaimer

When we say "Broker," "we," "our" or "us" in this document, we are referring to NexFr8 Brokerage. When we say "Carrier" or "you," we mean the individual agreeing to these Terms and Conditions. If you agree on behalf of a corporation, LLC, partnership or other business entity, then "Carrier" and "you" shall include that business entity and any associated individuals. Collectively, "Broker" and "Carrier" are the "Parties." When we say "Shipper," "Consignor," "Consignee" or "Receiver," we mean the customer of Broker. When we say "Shipment," we mean an order for transportation services.

Carrier agrees to these Terms and Conditions. No agent or employee of the Parties may alter these Terms and Conditions. Any individual or entity acting on behalf of the Carrier in accepting shipments hereunder warrants that it has the right to act on behalf of the Carrier and the right to legally bind Carrier. These Terms and Conditions shall apply to all shipments accepted by Carrier, unless and until these Terms and Conditions are altered or amended by the Broker.

We may update these Terms and Conditions in the future. Typically these changes are to clarify some of these terms. You are agreeing to the latest Terms and Conditions. These terms do contain a limitation of our liability.

These Terms and Conditions supersede all agreements, representations, warranties, statements, promises, and understandings of the parties, written or oral, except as stated herein. Where a Carrier enters into a separate contractual agreement with Broker, only conflicting terms in that agreement will take precedence over these Terms and Conditions.

If Carrier enters into a separate supplementary contractual arrangement with Broker, that agreement will take precedence over any inconsistent provisions of these Terms and Conditions.

Carrier responsibilities

Carrier represents and warrants that it:

Is a Registered Motor Carrier of Property under 49 U.S.C. §13102(14), is operated under authority issued by the Federal Motor Carrier Safety Administration (or its predecessors) within the U.S. Department of Transportation, and is authorized to provide transportation of property under contracts with shippers and receivers and/or brokers of general commodities.
Agrees to comply with all federal, state and local laws regarding the provision of the transportation services contemplated under this agreement.
Shall transport the property, under its own operating authority and subject to the terms of these Terms and Conditions.
Makes the representations herein for the purpose of inducing Broker to enter into these Terms and Conditions.
Agrees that a Shipper's insertion of Broker's name as the Carrier on a bill of lading shall be for the Shipper's convenience only and shall not change Broker's status as a property Broker nor Carrier's status as a motor Carrier. Broker is not a motor Carrier and assumes no motor Carrier responsibility for cargo loss and damage in the event that the National Motor Freight Traffic Association (NMFTA) (effective in August 2016), form of bill of lading is utilized.
Will not re-broker, co-broker, subcontract, assign, interline, or transfer the transportation of shipments hereunder to any other persons or entity conducting business under a different operating authority, without prior written consent of Broker. If Carrier breaches this provision, among all other remedies (whether at equity or in law), Broker shall have the right of paying the monies it owes Carrier directly to the delivering Carrier, in lieu of payment to Carrier. Upon Broker's payment to delivering Carrier, Carrier shall not be released from any liability to Broker under these Terms and Conditions or otherwise, including any claims under MAP-21 (49 U.S.C. §13901 et seq.). In addition to the indemnity obligation included in these Terms and Conditions, Carrier will be liable for consequential damages for violation of this provision.
Is in, and shall maintain compliance during the term of these Terms and Conditions, with all applicable federal, state and local laws relating to the provision of its services including, but not limited to: transportation of Hazardous Materials (including the licensing and training of Haz-Mat qualified drivers), as defined in 49 C.F.R. §172.800, §173, and §397 et seq. to the extent that any shipments hereunder constitute Hazardous Materials; security regulations; owner/operator lease regulations; loading and securement of freight regulations; implementation and maintenance of driver safety regulations including, but not limited to, hiring, controlled substances and alcohol testing, and hours of service regulations; sanitation, temperature, and contamination requirements for transporting food, perishable, and other products, including without limitation the Food Safety Modernization Act, the Sanitary Food Transportation Act of 2005 and the FDA's Final Rule pertaining to Sanitary Transportation of Human and Animal Food, qualification and licensing and training of drivers; implementation and maintenance of equipment safety regulations; maintenance and control of the means and method of transportation including, but not limited to, performance of its drivers; all applicable insurance laws and regulations including but not limited to workers' compensation. Carrier agrees to provide proof of compliance upon request.
Is solely responsible for any and all management, governing, discipline, direction and control of its employees, owner/operators, and equipment with respect to operating within all applicable federal and state legal and regulatory requirements to ensure the safe operation of Carrier vehicles, drivers and facilities. Carrier and Broker agree that safe and legal operation of the Carrier and its drivers shall completely and without question govern and supersede any service requests, demands, preferences, instructions, and information from Broker or Broker's customer with respect to any shipment at any time.
Will notify Broker immediately if its federal Operating Authority is revoked, suspended or rendered inactive for any reason; and/or if it is sold, or if there is a change in control of ownership, and/or any insurance required hereunder is threatened to be or is terminated, canceled, suspended, or revoked for any reason.
Shall defend, indemnify and hold Broker and its shipper customer harmless from any claims, actions or damages, arising out of its performance under these Terms and Conditions, including cargo loss and damage, theft, delay, damage to property, and personal injury or death. Neither Party shall be liable to the other for any claims, actions or damages due to the negligence or intentional act of the other Party, or the shipper. The obligation to defend shall include all costs of defense as they accrue.
Does not have an “Unsatisfactory” safety rating issued by the Federal Motor Carrier Safety Administration (FMCSA), U.S. Department of Transportation, and will notify Broker in writing immediately if its safety rating is changed to “Unsatisfactory” or “Conditional”.
Authorizes Broker to invoice Carrier's freight charges to shipper, consignee, or third parties responsible for payment.
Has investigated, monitors, and agrees to conduct business hereunder based on the credit-worthiness of Broker and is granting Broker credit terms accordingly.
Warrants, for the benefit of the Broker and any and all shippers, consignors, consignees, receivers, and any other parties with any interest to the transportation of the property, that : To the extent that any shipments subject to these Terms and Conditions are transported within the State of California, all equipment including but not limited to: semi-trailers, containers, truck vans, shipping containers and railcars, and Semi-Tractors that haul them under these Terms and Conditions are in compliance with the California Air Resources Board (ARB) Heavy-Duty Vehicle Greenhouse Gas (Tractor-Trailer GHG) Emission Reduction Regulations, and all refrigerated equipment utilized within the state are in full compliance with the California Air Resources Board (ARB) Transport Refrigerated Unit (TRU) Airborne Toxic Control Measure (ATCM), and in-use regulations, and (iii) the California Air Resources Board (ARB) Truck and Bus Regulation or On-Road Heavy-Duty Diesel Vehicles (In-Use) Regulation. Carrier shall defend, indemnify, hold harmless and be liable to Broker and any and all shippers, consignors, consignees, receivers, and any other parties with any interest to the transportation of the property for any penalties, or any other liability, imposed on the same, or assumed by Broker due to penalties imposed on Broker's customer(s) because of Carrier's use of non-compliant equipment.

Subject to its representations and warranties above, Carrier agrees to provide the necessary equipment and qualified personnel for completion of the transportation services required for Broker and/or its customers. Carrier will not supply equipment that has been used to transport hazardous wastes, solid or liquid, regardless of whether they meet the definition in 40 C.F.R. §261.1 et. seq. Carrier will furnish equipment for transporting cargo which is sanitary, and free of any contamination, suitable for the particular commodity being transported and which will not cause in whole or in part adulteration of the commodity as defined in 21 U.S.C §342. Carrier agrees that all shipments will be transported and delivered with reasonable dispatch, or as otherwise agreed in writing.

Carrier shall sign a bill of lading, produced by shipper or Carrier in compliance with 49 C.F.R. §373.101 (and any amendments thereto), for the property it receives for transportation under these Terms and Conditions. Unless otherwise agreed in writing, Carrier shall become fully responsible/liable for the freight when it takes/receives possession thereof, and the trailer(s) is loaded, regardless of whether a bill of lading has been issued, and/or signed, and/or delivered to Carrier, and which responsibility/liability shall continue until delivery of the shipment to the consignee and the consignee signs the bill of lading or delivery receipt. The foregoing sentence is not intended to limit or waive the application of the law related to concealed damages. Any terms of the bill of lading (including but not limited to payment and credit terms, released rates or released value) inconsistent with the terms of these Terms and Conditions shall be ineffective. Failure to issue a bill of lading, or sign a bill of lading acknowledging receipt of the cargo, by Carrier, shall not affect the liability of Carrier.

Documents for each Broker Shipment shall name Broker as third-party payor of all freight charges and Carrier as carrier of record. If there is a wrongly worded document, the Parties will treat it as if it showed Broker as third party payor and Carrier as carrier. If there is a conflict between these Terms and Conditions and any transportation document related to a Broker shipment, these Terms and Conditions shall govern.

Carrier shall obtain from the consignee a complete, signed delivery receipt or proof of delivery for each shipment, and it shall notify Broker immediately of any exception on any document. Carrier shall send Broker clear delivery receipt or proof of delivery and lumper receipts (if any) within 24 hours of delivery.

Carrier shall comply with 49 C.F.R. §370.1 et seq. and any amendments and/or any other applicable regulations adopted by the Federal Motor Carrier Safety Administration, U.S. Department of Transportation, or any applicable state regulatory agency, for processing all loss and damage claims and salvage. Carrier agrees that food that has been transported or offered for transport under conditions that are not in compliance with Shipper's or Broker's instructions, as provided to Carrier by Shipper or Broker, will be conclusively determined to be "adulterated" within the meaning of the Federal Food, Drug and Cosmetic Act, 21 U.S.C. §342 (i). Carrier understands and agrees that adulterated shipments may be refused by the consignee or receiver, at the destination without diminishing or affecting Carrier's liability in the event of a cargo claim. Carrier shall not sell, salvage or attempt to sell or salvage any goods without the Broker's express written permission.

In the event Carrier performs services for a Shipper with U.S. Government contracts, Carrier shall follow all laws and regulations governing contractors and subcontractors providing goods or services to government agencies, including but not limited to Federal Acquisition Regulations ("FAR") clauses 52.222-26; 41 C.F.R. §60-751.5; FAR 52.222-37; 41 C.F.R. §60-250.40; FAR 52.222-35; FAR 52.222-36; 52.247-64 and 41.

Carrier's liability for any cargo damage, loss, or theft from any cause shall be determined under the Carmack Amendment, 49 U.S.C. §14706 if applicable; however, liability for exempt commodities and processing cargo loss and damage claims shall be determined by: DRC Trading Practices, or Blue Book Transportation Guidelines, or NAPTWG Best Practices by agreement of the Parties and if no agreement then by one of the above associations' guidelines named above at the selection of the Broker.

Carrier's indemnification liability for freight loss and damage claims shall include legal fees which shall constitute special damages, the risk of which is expressly assumed by Carrier, and which shall not be limited by any liability of Carrier above.

Except as provided above, neither Party shall be liable to the other for consequential damages without prior written notification of the risk of loss and its approximate financial amount, and agreement to assume such responsibility in writing.

Notwithstanding the terms of 49 CFR 370.9, Carrier shall pay, decline or make settlement offer in writing on all cargo loss or damage claims within 60 days of receipt of the claim. Failure of Carrier to pay, decline or offer settlement within this period shall be deemed admission by Carrier of full liability for the amount claimed and a material breach of these Terms and Conditions.

Carrier shall furnish Broker with Certificate(s) of Insurance, or insurance policies evidencing coverage in force as of the date of certificate issuance, and unless otherwise agreed, subject to the following minimum limits: General liability $1,000,000; motor vehicle (including hired and non-owned vehicles) $1,000,000, ($1,000,000 if transporting hazardous materials including environmental damages due to release or discharge of hazardous substances); cargo damage/loss, $100,000; workers' compensation with limits required by law. Except for the higher coverage limits which may be specified above, the insurance policies shall comply with minimum requirements of the Federal Motor Carrier Safety Administration and any other applicable regulatory state agency. Nothing in these Terms and Conditions shall be construed to avoid or limit Carrier's liability due to any policy limits or exclusion or deductible in any insurance policy. Carrier hereby agrees that Broker and/or Broker's insurance provider may discuss Carrier's insurance coverage with Carrier's insurance provider. Except to the extent (if any) that the same may affect, prejudice or void coverage under the applicable insurance policy, Carrier hereby gives permission to Carrier's insurance provider to disclose and discuss Carrier's insurance coverage with Broker and/or Broker's insurance provider and gives permission for Carrier's insurance provider to provide a copy of Carrier's insurance policy(ies), together with all declaration pages, endorsements, schedules, applications and/or other documents pertaining to such policy(ies), to Broker and/or Broker's insurance provider. This permission includes, but is not limited to, the release of verbal and written information pertaining to any claim that arises from transportation that occurs under these Terms and Conditions, including, but not limited to, letters or other correspondence pertaining to any denial of coverage or reservation of rights to deny coverage.

Carrier automatically assigns to Broker all its rights to collect freight charges from Shipper or any responsible third party on receipt of payment of its freight charges from Broker.

Carrier assumes full responsibility and liability for payment of the following items: All applicable federal, state, and local payroll taxes, taxes for unemployment insurance, old age pensions, workers' compensation, social security, with respect to persons engaged in the performance of its transportation services hereunder. Broker shall not be liable for any of the payroll-related tax obligations specified above and Carrier shall indemnify, defend, and hold Broker harmless from any claim or liability imposed or asserted against Broker for any such obligations.

Broker responsibilities
There is no minimum volume of freight contemplated by these Terms and Conditions. Broker shall inform Carrier of place of origin and destination of all shipments; and if applicable, any special shipping and handling instructions, special equipment requirements, or value of shipments in excess of the amount specified below, of which Broker has been timely notified.
Each Shipment shall require a written Rate Confirmation signed or otherwise acknowledged by Carrier prior to each shipment, specifying all applicable rates and charges. Broker shall not be liable for costs, charges, surcharges, or other amounts not specified in said Rate Confirmations. All rates and charges specified in written Rate Confirmations shall include liability for actual cargo value and shall not be "released rates" limiting cargo liability to any lesser value. Rates or charges, including but not limited to stop-offs, detention, loading, unloading, fuel surcharges, or other accessorial charges, release rates or values, or tariff rules or circulars, shall only be paid when specifically agreed to in writing by the Parties.
Broker agrees to conduct all billing services to shippers, consignees, or other parties responsible for payment. Carrier shall invoice Broker for its (Carrier's) charges, as mutually agreed in writing or by electronic means. Additional rates for truckload or LTL shipments, or modifications or amendments of the above rates, or additional rates, may be established to meet changing market conditions, shipper requirements, Broker requirements, and/or specific shipping schedules as mutually agreed upon, and shall be confirmed in writing (or by email) by both Parties. Any such additional, modified, or amended rates, changes in rates shall automatically be incorporated herein by this reference.
Additionally, any rates, which may be verbally agreed upon, shall be deemed confirmed in writing where Carrier has billed the agreed rate and Broker has paid it. All written confirmations of rates, including confirmations by billing and payment, shall be incorporated herein by this reference. Rates or charges, including but not limited to stop-offs, detention, loading or unloading, fuel surcharges, or other accessorial charges, tariff rates, released rates or values, or tariff rules or circulars, shall only be valid when their terms are specifically agreed to in a writing signed by both Parties.
The Parties agree that Broker is the sole party responsible for payment of Carrier's charges. Broker agrees to pay Carrier's invoice within 30 days of receipt Carrier's freight bill; bill of lading; clear delivery receipt or proof of delivery; lumper receipts (if any); and any other documents necessary to enable Broker to ascertain transportation has been property provided, providing Carrier is not in default under the terms of these Terms and Conditions. If Broker has not paid Carrier's invoice as agreed, and Carrier has complied with the terms of these Terms and Conditions, Carrier may seek payment from the Shipper or other party responsible for payment after giving Broker 15 business days advance written notice. Carrier shall not seek payment from Shipper, consignees, or third parties, if they can prove payment to Broker.
Broker shall maintain a surety bond or trust fund as agreed to in the amount of not less than $75,000.00 and on file with the Federal Motor Carrier Safety Administration (FMCSA) in the form and amount not less than that required by that agency's regulations.
Broker will notify Carrier immediately if its federal Operating Authority is revoked, suspended or rendered inactive for any reason; and/or if it is sold, or if there is a change in control of ownership, and/or any insurance required hereunder is threatened to be or is terminated, canceled, suspended, or revoked for any reason.
Broker's responsibility is limited to arranging for, but not actually performing, transportation of a shipper's freight.
Miscellaneous
Independent contractor
The relationship of the Parties to each other shall at all times be that of independent contractors. None of the terms of these Terms and Conditions, or any act or omission of either Party shall be construed for any purpose to express or imply a joint venture, partnership, principal/agent, fiduciary, or employer/employee relationship between the Parties. Each Party shall provide sole supervisions and shall have exclusive control over the actions and operations of its employees, and agents used to perform its services hereunder. Neither Party has any right to control, discipline or direct the performance of any employees, or agents of the other Party. Neither Party shall represent to any party that it is anything other than an independent contractor in its relationship to the other Party.
Non-exclusive agreement
Carrier and Broker acknowledge and agree that this contract does not bind the respective Parties to exclusive services to each other. Either party may enter into similar agreements with other Carriers, Brokers, or freight forwarders.
Waiver of provisions
Failure of either Party to enforce a breach or waiver of any provision or term of these Terms and Conditions shall not be deemed to constitute a waiver of any subsequent failure or breach, and shall not affect or limit the right of either Party to thereafter enforce such a term or provision.
These Terms and Conditions are for specified services pursuant to 49 U.S.C. §14101(b). To the extent that Terms and Conditions herein are inconsistent with Part (b), Subtitle IV, of Title 49 U.S.C. (ICC Termination Act of 1995), the Parties expressly waive any or all rights and remedies they may have under the Act.

Disputes
In the event of a dispute arising out of these Terms and Conditions, including but not limited to Federal or State statutory claims, the Party's recourse (except as provided below) shall be to arbitration, or litigation as specified below. Arbitration Proceedings shall be conducted under the rules of the Transportation ADR Council, upon mutual agreement of the Parties, or if no agreement, then at Broker's sole discretion. Arbitration proceedings shall be started within eighteen (18) months from the date of delivery or scheduled date of delivery of the freight, whichever is later. Upon agreement of the Parties, arbitration proceedings may be conducted outside of the administrative control of the Transportation ADR Council. The decision of the arbitrators shall be binding and final and the award of the arbitrator may be entered as judgment in any court of competent jurisdiction. The rationale and reasoning of the decision of arbitrator(s) shall be fully explained in a written opinion, including findings of fact and conclusions of law. The prevailing party shall be entitled to recovery of costs, expenses and reasonable attorney fees as well as those incurred in any action for injunctive relief, or in the event further legal action is taken to enforce the award of arbitrators. Arbitration proceedings shall be conducted at the office of the AAA, ADR, or DRC at such other place as mutually agreed upon in writing, or by conference call or video conferencing upon agreement of the Parties, or if no agreement then at the selection of the Broker or as directed by the acting arbitration association. Provided, however, either Party may apply to a court of competent jurisdiction for injunctive relief. Unless preempted or controlled by federal transportation law and regulations, the laws of the State of UT shall be controlling notwithstanding applicable conflicts of laws rules. The arbitration provisions of this paragraph shall not apply to enforcement of the award of arbitration.
Subject to the time limitation set forth above, for disputes where the amount in controversy exceeds $100,000, Broker shall have the right, but not the obligation, to select litigation in order to resolve any disputes arising hereunder. In the event of litigation, the prevailing Party shall be entitled to recover costs, expenses and reasonable attorney fees, including but not limited to any incurred on appeals.
Subject to the time limitation set forth above, for disputes where the amount in controversy does not exceed $5,000, Broker shall have the right, but not the obligation, to select litigation in small claims court order to resolve any disputes arising hereunder. The prevailing Party shall be entitled to recover costs, expenses and reasonable attorney fees, including but not limited to any incurred on appeals.
Venue, controlling law, and jurisdiction in any legal proceedings shall be in the State of UT.
Back solicitation
Unless otherwise agreed in writing, Carrier shall not knowingly solicit freight shipments (or accept shipments) for a period of 12 month(s) following termination of these Terms and Conditions for any reason, from any shipper, consignor, consignee, or other customer of Broker, when such shipments of shipper customers were first tendered to Carrier by Broker.
In the event of breach of this provision, Broker shall be entitled, for a period of 12 months following delivery of the last shipment transported by Carrier under these Terms and Conditions, to a commission of 25% of the gross transportation revenue (as evidenced by freight bills) received by Carrier for the transportation of said freight as liquidated damages. Additionally, Broker may seek injunctive relief and in the event it is successful, Carrier shall be liable for all costs and expenses incurred by Broker, including, but not limited to, reasonable attorney's fees.
Confidentiality
In addition to Confidential Information protected by law, statutory or otherwise, the Parties agree that all of their financial information and that of their customers, including but not limited to freight and Brokerage rates, amounts received for Brokerage services, amounts of freight charges collected, freight volume requirements, as well as personal customer information, customer shipping or other logistics requirements shared or learned between the Parties and their customers, shall be treated as Confidential, and shall not be disclosed or used for any reason without prior written consent. In the event of violation of this Confidentiality paragraph, the Parties agree that the remedy at law, including monetary damages, may be inadequate and that the Parties shall be entitled, in addition to any other remedy they may have, to an injunction restraining the violating Party from further violation of these Terms and Conditions in which case the non-prevailing Party shall be liable for all costs and expenses incurred, including but not limited to reasonable attorney's fees.
The limitations of liability for cargo loss and damage as well as other liabilities, arising out of the transportation of shipments, which originate outside the United States of America, may be subject to the laws of the country of origination.
Notices
All notices provided or required by these Terms and Conditions, shall be made in writing and delivered, return receipt requested, to the addresses shown herein with postage prepaid or by email with electronic receipt. The Parties shall promptly notify each other of any claim that is asserted against either of them by anyone arising out of the Parties performance of these Terms and Conditions. Notices sent as required hereunder, to the addresses shown in these Terms and Conditions shall be deemed sent to the correct address, unless the Parties are notified in writing of any changes in address.
Term of agreement
The term of these Terms and Conditions shall be one year from the date hereof and thereafter it shall automatically be renewed for successive one (1) year periods, unless terminated, upon thirty (30) day's prior written notice, with or without cause, by either Party at any time, including the initial term. In the event of termination of these Terms and Conditions for any reason, the Parties shall be obligated to complete performance of any work in progress in accordance with the terms of these Terms and Conditions.
Severance & survival
In the event any of the terms of these Terms and Conditions are determined to be invalid or unenforceable, no other terms shall be affected and the unaffected terms shall remain valid and enforceable as written. The representations, rights and obligations of the parties hereunder shall survive termination of these Terms and Conditions for any reason.
Force majeure
In the event that either Party is prevented from performing its obligations under these Terms and Conditions because of an occurrence beyond its control and arising without its fault or negligence, including without limitation, war, riots, rebellion, acts of God, acts of lawful authorities, fire, strikes, lockouts or other labor disputes, such failures to perform (except for any payments due hereunder) shall be excused for the duration of such occurrence. Economic hardships, including, but not limited to, recession and depression, shall not constitute Force Majeure events.