When executed electronically by Seller and LoadX Factoring, this Factoring Services Agreement, Notification of Assignment and the Factoring Policies & Definitions attached hereto (hereafter the “Factoring Services Agreement”), by and between LoadX Factoring a division of LoadX Logistics LLC, (hereinafter referred to as “LoadX Factoring”) and Seller as indicated on the signed service agreement, (hereafter referred to as “Seller”), shall constitute the entire agreement pursuant to which LoadX Factoring shall factor Seller’s Freight Bills.
If Seller desires to sell to LoadX Factoring any Freight Bills, Seller shall submit a Factoring Application to LoadX Factoring as instructed by LoadX Factoring and will be charged a Factoring Fee based on package selected and shown on the signed Factoring Services Agreement.
Upon submission of a Factoring Application by Seller to LoadX Factoring, LoadX Factoring has the exclusive option to purchase from Seller all of Seller’s right, title and interest in and to Seller’s now existing and hereafter created Freight Bills and Accounts created and owned by Seller that are submitted on such Factoring Application, together with all Corresponding Rights with respect thereto. LoadX Factoring shall advise Seller of its election to purchase any Freight Bills submitted to it on such Factoring Application and upon such notification by LoadX Factoring, the Seller shall be deemed to have assigned and sold to LoadX Factoring as sole and exclusive owner thereof, all of Seller’s rights, title and interest in and to such Freight Bills and Accounts and all Corresponding Rights relating thereto, covered by such Factoring Application. Upon LoadX Factoring’s acceptance of each Factoring Application, or any portion thereof, LoadX Factoring shall have the option to pay Seller the aggregate net face value of the Freight Bill less the Factoring Fee (the “Purchase Price”).
The Factoring Application shall be in a form satisfactory to LoadX Factoring and shall be delivered to LoadX Factoring together with copies of all originals, or originals as required by the Debtor, shipping or delivery receipts, documents and proofs of delivery of merchandise or rendition of services as LoadX Factoring may require.
LoadX Factoring shall be entitled to, at its sole discretion (i) notify each Debtor of Seller’s sale and assignment of such Freight Bills to LoadX Factoring and its duty to make payments directly and solely to LoadX Factoring, which notification may include a Payment Notation; and (ii) verify all Freight Bills directly with the respective Debtor.
All Accounts sold to and purchased by LoadX Factoring shall be deemed sold on a Non-Recourse basis, provided, however, that LoadX Factoring shall have recourse against Seller for (i) the amount of any dispute or short pay, (ii) if said invoice is not fully paid within sixty (60) days of the date of purchase by LoadX Factoring for any reason other than Debtor’s financial inability to pay (for example, incorrect paperwork submitted, damaged freight, or other disputes where Seller is at fault), (iii) the amount of any Freight Bill that does not comply with the Factoring Policies, or (iv) all Accounts upon a breach of this Factoring Agreement by Seller.
Factoring of all or any part of the Freight Bills of a load shall be at the discretion of LoadX Factoring and LoadX Factoring shall not be under any obligation to factor all or any load of Seller.
When Seller factors the Freight Bills for a load with LoadX Factoring, Seller agrees to notify LoadX Factoring before receiving funding for any load that Seller knows or suspects may be damaged, picked-up late, delivered late, shorted for any reason or subject to potential claims. Notification must be made on the Factoring Application for the Freight Bills for such load if possible, otherwise it should be provided by email or telephone.
If Seller receives funding for Freight Bills for a load from LoadX Factoring and the load is later determined to have been damaged, picked-up late, delivered late, shorted or subject to potential claims or disputes for any reason whatsoever, Seller shall reimburse LoadX Factoring the amount of the shortage up to and including the full amount of the Freight Bill and LoadX Factoring reserves its right to offset any such amounts from amounts LoadX Factoring may owe to Seller. Upon request from LoadX Factoring, Seller will have five (5) business days to provide payment in full to LoadX Factoring for any amounts owed.
Seller is only allowed to receive advances on a load before the Freight Bills for such load are factored and the Purchase Price paid by LoadX Factoring, and Seller must notify LoadX Factoring of any and all advances taken (from any party other than LoadX Factoring) on the Freight Bills for a load. Advances from other parties for any load must be indicated on the Factoring Application covering the Freight Bills for such load. If LoadX Factoring has funded the Purchase Price to Seller for the Freight Bills for a load, and any advances were taken (from any party other than LoadX Factoring) without notifying LoadX Factoring, the Seller will reimburse LoadX Factoring upon request for the full amount of any advances taken within five (5) business days. Seller is not allowed to take any advances (from any party other than LoadX Factoring) on any Freight Bills for a load after such Freight Bills are purchased by LoadX Factoring. Should Seller violate this policy, Seller will reimburse LoadX Factoring immediately upon request for the full amount of the advance plus a penalty of 25% of the advance amount.
If for any reason whatsoever a check or payment which should have been delivered or provided to LoadX Factoring is received by the Seller, Seller will (1) immediately notify LoadX Factoring of its receipt of the funds, and (2) remit payment, in kind, to LoadX Factoring for the misdirected funds within three (3) business days. Failure to deliver such payments to LoadX Factoring will result in a fee of 15% of the amount of any payment on account of the Purchase Price which has been received by Seller and not delivered in kind to LoadX Factoring on the third business day following the date of receipt by Seller, or 30% of the amount of any such payment which has been received by Seller as a result of any action taken by Seller to cause such payment to be made to Seller in order to compensate LoadX Factoring for the reasonably likely additional administrative expenses caused by this conduct.
To secure the full payment and performance of all liabilities and Obligations of Seller to LoadX Factoring of every kind and description, direct or indirect, absolute or contingent, due or to become due, whether now existing or hereafter arising, Seller hereby grants to LoadX Factoring a continuing general lien on and security interest in all Accounts, Freight Bills, instruments, chattel paper, equipment, general intangibles, goods, negotiable collateral and all proceeds and collections thereof, all Corresponding Rights and guaranties or other security therefore, together with all records of Seller pertaining to the foregoing and all computer programs and systems used in connection therewith whether now existing or hereafter arising and wherever located.
If Seller fails to act in accordance with any of the preceding terms or breaches any provision of any agreement with LoadX Factoring, or violates the Factoring Policies, or in the event that LoadX Factoring shall determine in its sole discretion at any time hereafter that it is insecure with respect to the payment or performance by Seller of all or part of the Obligations of Seller to LoadX Factoring under this Agreement or any other agreement between Seller and LoadX Factoring (each of the foregoing, a “Default”), then all Obligations of Seller under this Agreement or any other agreement between Seller and LoadX Factoring, without demand or notice of any kind or nature, shall immediately become due and payable and LoadX Factoring may exercise its rights under this Agreement, any other agreement between Seller and LoadX Factoring or any applicable law. Upon the occurrence of a Default, in addition to the Factoring Fee, Seller agrees to pay interest on any unpaid balances owing to LoadX Factoring at a rate of 1.5% per month up to a rate of 18% per annum, or the highest rate allowable by law until paid in full. In the event that LoadX Factoring uses an attorney to enforce any right or rights of LoadX Factoring against Seller under this Agreement, or any other agreement between LoadX Factoring and Seller, including, without limitation, rights arising out of the inaccuracy of any of the promises made of the obligations set forth in this Agreement, Seller agrees, in addition to any other amounts owed to LoadX Factoring, to pay to LoadX Factoring all costs and expenses of collection, including reasonable attorney’s fees.
IT IS THE INTENTION OF THE PARTIES HERETO THAT AS TO ALL PURCHASED FREIGHT BILLS, THE TRANSACTIONS CONTEMPLATED HEREBY SHALL CONSTITUTE A TRUE PURCHASE AND SALE OF FREIGHT BILLS UNDER § 9-318 OF THE UCC AS IN EFFECT IN THE STATE OF TEXAS AND AS SUCH, THE Seller SHALL HAVE NO LEGAL OR EQUITABLE INTEREST IN SUCH PROPERTY SOLD. NEVERTHELESS, IN THE EVENT ANY PORTION OF THIS TRANSACTION IS CHARACTERIZED AS A LOAN, THE PARTIES HERETO INTEND TO CONTRACT IN STRICT COMPLIANCE WITH APPLICABLE USURY LAW FROM TIME TO TIME IN EFFECT. IF ANY INDEBTEDNESS OR OBLIGATION OWED BY Seller HEREUNDER IS DETERMINED TO BE IN EXCESS OF THE LEGAL MAXIMUM, OR LOADX FACTORING SHALL OTHERWISE COLLECT MONEYS WHICH ARE DETERMINED TO CONSTITUTE INTEREST WHICH WOULD OTHERWISE INCREASE THE INTEREST ON ALL OR ANY PART OF SUCH OBLIGATIONS TO AN AMOUNT IN EXCESS OF THAT PERMITTED TO BE CHARGED BY APPLICABLE LAW THEN IN EFFECT, THEN ALL SUCH SUMS DETERMINED TO CONSTITUTE INTEREST IN EXCESS OF SUCH LEGAL LIMIT SHALL, WITHOUT PENALTY, BE PROMPTLY APPLIED TO REDUCE THE THEN OUTSTANDING OBLIGATIONS OR, AT LOADX FACTORING’S OPTION, RETURNED TO Seller OR THE OTHER PAYOR THEREOF UPON SUCH DETERMINATION. AS USED IN THIS SECTION, THE TERM “APPLICABLE LAW” MEANS THE LAWS OF THE STATE OF TEXAS OR, IF DIFFERENT, THE LAWS OF THE STATE OR TERRITORY IN WHICH LOADX FACTORING RESIDES, WHICHEVER LAW ALLOWS THE GREATER RATE OF INTEREST, AS SUCH LAWS NOW EXIST OR MAY BE CHANGED OR AMENDED OR COME INTO EFFECT IN THE FUTURE, AND THE TERM “MAXIMUM RATE” MEANS THE MAXIMUM NONUSURIOUS RATE OF INTEREST THAT LOADX FACTORING IS PERMITTED UNDER APPLICABLE LAW TO CONTRACT FOR, TAKE, CHARGE OR RECEIVE WITH RESPECT TO THE OBLIGATIONS.
Providing fraudulent information, including but not limited to falsifying documents, modifying or altering documents, providing false or misleading information in any manner whatsoever will subject Seller to all civil or criminal causes of action available to LoadX Factoring. This Agreement shall have full and binding effect on Seller until such time as the Obligations are paid and satisfied in full and LoadX Factoring has no other or further obligation, contingent or otherwise, to make any present or future funding or pay any Purchase Price or to incur any present or future expense contemplated by this Agreement or any other agreement between the Seller and LoadX Factoring, and Seller shall have executed a release, in form and substance satisfactory to LoadX Factoring of all obligations and liabilities of LoadX Factoring and the officers, directors, employees, agents, parents, subsidiaries and affiliates of LoadX Factoring. If Seller obtains new financing from another lender, Seller shall deliver such lender’s indemnification of LoadX Factoring, in form and substance satisfactory to LoadX Factoring, for checks which LoadX Factoring has credited to Seller’s account, but which subsequently are dishonored for any reason.
THE VALIDITY OF THIS FACTORING AGREEMENT, AND ALL OTHER AGREEMENTS BETWEEN THE SELLER AND LOADX FACTORING, THE CONSTRUCTION, INTERPRETATION, AND ENFORCEMENT AND THE RIGHTS OF THE PARTIES HERETO SHALL BE DETERMINED UNDER, GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF TEXAS, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. THE PARTIES AGREE THAT ALL ACTIONS AND PROCEEDINGS ARISING IN CONNECTION WITH THE FACTORING AGREEMENT SHALL BE TRIED AND LITIGATED ONLY IN THE STATE COURTS LOCATED IN THE COUNTY OF WILLIAMSON, STATE OF TEXAS, THE FEDERAL COURTS WHOSE VENUE INCLUDES THE COUNTY OF WILLIAMSON, STATE OF TEXAS, OR, AT LOADX FACTORING’S SOLE OPTION, IN ANY OTHER COURT IN WHICH LOADX FACTORING SHALL INITIATE LEGAL OR EQUITABLE PROCEEDINGS AND WHICH HAS SUBJECT MATTER JURISDICTION OVER THE MATTER IN CONTROVERSY. EACH OF THE PARTIES HERETO WAIVES, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, THE RIGHT TO A TRIAL BY JURY AND ANY RIGHT EACH MAY HAVE TO ASSERT THE DOCTRINE OF “FORUM NON CONVENIENS” OR TO OBJECT TO VENUE TO THE EXTENT ANY PROCEEDING IS BROUGHT IN ACCORDANCE WITH THE AGREEMENT AND THE Seller DOES HEREWITH SUBMIT TO THE JURISDICTION OF SAID COURTS.
The Factoring Policies and Definitions attached hereto are made a part hereof and incorporated herein by reference. In the event Seller electronically transmits Factoring Applications hereunder via LoadX Factoring’s on-line Internet based communication and account management system by either directly keying or uploading such information, the submission of the same shall be considered a “Factoring Application” hereunder.
This Agreement may be executed in two or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same Agreement. The counterparts of this Agreement may be executed and delivered by facsimile or other electronic signature by any of the parties to any other party and the receiving party may rely on the receipt of such document so executed and delivered by facsimile or other electronic means as if the original had been received.
HAVING READ, UNDERSTOOD AND AGREED TO THIS DOCUMENT, the parties hereto have executed this Agreement as of the date indicated on the signed Factoring Services Agreement. Each of the undersigned acknowledges that he is the owner or authorized representative of the Seller. The service agreement signed hereby jointly and severally unconditionally guarantees and promises to pay on demand and in full to LoadX Factoring, its successors or assigns, any and all indebtedness and Obligations of Seller to LoadX Factoring under this Agreement or any other agreement between LoadX Factoring and Seller.
If you have any questions about this Agreement, please call our office at (512) 862-4046 to speak with an account specialist.
2. Factoring Policies & Definitions
The parties agree that the purpose of this Agreement and the financing provided herein is commercial in nature. All terms not defined herein shall have the meaning set forth in the Factoring Services Agreement and vice versa or the Uniform Commercial Code.
Account – All “Accounts” as defined in the Uniform Commercial Code and all goods represented therefrom and specifically includes Freight Bills
Account Debtor – The person or entity obligated to pay an account, including but not limited to, general intangibles and chattel paper.
Advance Rate – Percentage of the face value of any Eligible Account as set forth in the Factoring Services Agreement.
Agreement Term – The length of term as indicated on the Factoring Services Agreement under the label Agreement Term. The Agreement will automatically renew for a subsequent term provided that Cancellation has not occurred.
Bill of Lading – LoadX Factoring will only factor Freight Bills when provided with the signed (by both shipper and receiver) copy of the bill of lading. Original bills of lading may be required per the debtor and will be required for factoring if the debtor requires the original. If LoadX Factoring is unable to determine whether a bill of lading is signed, we will not factor the Freight Bills for that load. If the shipper provides you with a document other than a bill of lading, such as a packing/shipping list, manifest or invoice, please complete and provide your own bill of lading. Blank bills of lading can be obtained at most truckstops.
Cancellation – The Agreement may be canceled pursuant to the terms set forth herein, provided that all Obligations have been met.
Chosen State – Texas (TX)
Clearance Days – Two (2) business day on all checks and electronic funds transfers, for all purposes of this Agreement, Clearance Days will be added to the date on which any payment is received by Purchaser.
Closed – a Purchased Account for which payment in full has been received from Account Debtor or the advanced amount on the invoice, including fees has been charged to the Reserve Account pursuant to this Agreement.
C.O.D. Loads – If you intend to factor Freight Bills from a C.O.D. load, you must send the original C.O.D. check to LoadX Factoring with your Freight Bills. Otherwise, we will be unable to factor the load.
Collateral – All of Seller’s existing and later acquired Accounts, Chattel Paper, Deposit Accounts, Documents, General Intangibles, Inventory, Letter of Credit Rights and all Supporting Obligations including all of Seller’s books and records evidencing and/or related to all Accounts, any Commercial Tort Claim that Seller may come to have and that is subsequently specifically referenced by written amendment, together with Seller’s software programs, stored data, aging schedules, customer lists, books, records, returned merchandise and all property of Seller at any time coming into LoadX Factoring’s possession; and all lien rights associated with the Accounts, whether arising by operation of law or pursuant to contract or agreement.
Corresponding Rights – means all of Seller’s rights against its Debtor or customer with respect to the goods sold or performance of services, whether arising under contract, statute, common law or otherwise, including all supporting obligations.
Credit Checks – LoadX Factoring will only advance upon approved Debtors. If you are unable to find a particular Debtor in our database, please call us at (512) 862-4046 and provide the broker’s MC number, Seller name, city, state and telephone. We will provide you with information as to whether the Debtor is approved or denied for factoring at that time.
Debtor – means the Seller’s customer or account debtor or other party responsible for payment of the Freight Bill.
Debtor by Debtor Basis – Once you submit a Factoring Application and factor Freight Bills for a particular Debtor, you must continue to factor Freight Bills for every future load you haul for that Debtor. LoadX Factoring notifies all Debtors of the assignment of your Freight Bills and Account. Should you mail a bill of lading and invoice to the Debtor directly, the Debtor is obligated to remit payment only to LoadX Factoring.
Dilution – The percentage of chargeback debits divided by the total payments received for any specific period selected.
Dispute – Any dispute or claim, bona fide or not, as to the price, terms, amount, quantity, quality, setoff, claims in recoupment or other defense to payment asserted by an Account Debtor.
Double-Brokered Loads – LoadX Factoring will not factor double-brokered loads under any circumstances.
Eligible Account – An Account, which means a right to payment for goods sold or services provided, which is acceptable for purchase at the discretion of Purchaser in the sole exercise of its credit and business judgment.
E-Mail Submission / Online Client Portal Access – The primary mode to submit Factoring Applications is via email at firstname.lastname@example.org. All emails must have the completed required documents included as attachments. Access to the online portal providing 24/7 access to your account information will be through the login name and password unique to your Seller, details of which can only be provided to authorized signers. All funding requests submitted through email or portal will be deemed as submitted by an authorized person. LoadX Factoring accepts the submission of assignment schedules in good faith and does not accept any responsibility for submissions made by unauthorized persons that may have gained inadvertent access to the email or portal.
Events of Default – As set forth in Paragraph 4 herein.
Exposed Payments – Payments received by Purchaser from an Account Debtor which has become subject to a bankruptcy proceeding, to the extent such payments cleared said Account Debtor’s deposit account within ninety days prior to the commencement of said bankruptcy case.
Face Value – The amount presented as due on an Account at the time of Purchase.
Factoring Applications – You must submit a rate confirmations and BOL’s for each load your Seller intends to factor. We must receive these by 11:00am CST for funding the same day; otherwise the funds may not be received until the next business day.
“Factoring Application” means the form of cover page that shall be used by Seller to offer Freight Bills for sale to LoadX Factoring. In the event Seller shall electronically transmit Freight Bills for sale to LoadX Factoring hereunder via LoadX Factorings on-line Internet based communication and account management system by either directly keying or uploading such information, the submission of the same shall be considered a “Factoring Application” hereunder.
Factoring Fee – As specified in the Factoring Services Agreement multiplied by the original face value of a Purchased Account, for each Factoring Fee Period or portion thereof, computed from Purchase Date by Purchaser through and including the Late Payment Date.
Factoring Fee Period(s) – As specified in the Factoring Services Agreement, the period in which the corresponding Factoring Fee will be applied to such Eligible Account(s) after payment has been received by Purchaser and after said Clearance Days have passed.
Financial Inability – Means that the Account Debtor is unable to pay the Seller and all other similarly situated creditors in the ordinary course of its business, solely as a result of its financial inability and for no other reason.
Freight Bills – means and includes all of Seller’s now existing or hereafter arising i) accounts as defined under the UCC, and ii) freight bills or other invoices and rights to payment for delivery or other services rendered, goods, merchandise, or inventory sold, rented, or leased, including without limitation, those which are not evidenced by instruments or chattel paper, and whether or not they have been earned by performance, all collateral security and guarantees of any kind given by any obligor with respect to any of the foregoing, and all goods returned to or reclaimed by Seller that correspond to any of the foregoing and all proceeds of the foregoing, in each case arising from the delivery of loads by Seller to the recipients or Debtors.
Funded Amount – The face value of an Account multiplied by the Advanced Rate, less any amounts due to Purchaser from Seller.
Insolvent – An Account Debtor has become Insolvent if it is the subject of (i) a petition under any state or federal debtor relief or liquidation statute filed within the Insolvency Period, (ii) a proceeding under Chapters 11, 7 or 13 of the Bankruptcy Code filed on or after the Purchase Date and within the Insolvency Period, or (iii) the Financial Inability of an Account Debtor.
Insolvency Period – The earlier of (i) the Late Payment Date or (ii) the date on which the Seller could be required to repurchase an Account under Paragraph 2.5 herein entitled “Repurchase of Accounts.”
Non-Factored Loads – Occasionally, LoadX Factoring may be unable to fund you for certain Freight Bills. If the load is damaged, shorted, picked up late, delivered late or subject to a possible claim, we will prepare an invoice and forward the bill of lading to the Debtor on your behalf as a courtesy. LoadX Factoring will pay you for the load upon receiving payment from the Debtor. Under this circumstance, our Factoring Fee will not be applied. LoadX Factoring reserves the right to determine whether a load is designated as non-factored. All non-factored loads are subject to a $25.00 fee, with 0% Factoring Fee.
Non-Recourse Account – A Purchased Account that is not a Recourse Account as defined herein.
Obligations – means all present and future Obligations owing by Seller to LoadX Factoring of every kind and nature, whether or not for the payment of money, whether or not evidenced by any note or other instrument, whether direct or indirect, absolute or contingent, due or to become due, joint or several, primary or secondary, liquidated or unliquidated, secured or unsecured, original or renewed or extended, whether presently contemplated or not, regardless of how the same arise, or by what instrument, agreement, or book account they may be evidenced, or whether evidenced by any instrument, agreement or book account, whether arising before, during or after the commencement of any federal Bankruptcy Case in which Seller is a debtor, including but not limited to, fees and expenses, obligations arising pursuant to guaranties, letters of credit or acceptance transactions or any other financial accommodations.
Parties – Seller and Purchaser
Problem Loads – If a load is shorted, damaged, picked up late or delivered late, you must contact the Debtor immediately. Failure to do so will delay the settlement process and possibly result in a non-factored load. Upon receipt of the signed bill of lading, LoadX Factoring reserves the right to determine whether a load will be classified as a non-factored load. LoadX Factoring is not responsible for any issues relating to the delivery or condition of the load.
Produce Loads – LoadX Factoring will not factor Freight Bills for produce loads when the bill of lading is signed under protest, subject to inspection, damaged, shorted or delivered late.
Purchase Date – the date on which Seller has been advised in writing, or by update to Purchaser maintained website, that Purchaser has agreed to purchase an Account.
Purchased Accounts – Accounts that have been purchased pursuant to this Agreement which have not been Closed.
Short Paid Loads – If LoadX Factoring is short paid by the Debtor on a Freight Bill you factored, we will deduct the amount from your next settlement or Comdata card. It is your exclusive responsibility to reconcile the short payment with the broker or Debtor.
Special Accommodation – the financial accommodations provided for a fee to Seller in Purchaser’s sole discretion as set forth on the Factoring Services Agreement, or in addendum thereto.
Term – As set forth in Paragraph 9 herein
Unnoted Advance Fee – ten percent (10%) or one-hundred dollars ($100), whichever is greater, of the original face value of any Account which has been sold to Purchaser by Seller whereby any monies have been advanced to Seller against the Account and have not otherwise been disclosed to Purchaser in writing prior to Purchase of said Account.
Dispatch Terms and Conditions
1. Terms and Conditions The parties agree that the purpose of this Agreement and the services provided herein is commercial in nature. All terms not defined herein shall have the meaning set forth in the Uniform Commercial Code. This agreement is made between LoadX Logistics LLC dba LoadX Factoring (DISPATCH) and the CARRIER licensed by the FMCSA as an interstate or intrastate carrier of property holding valid federal or state authority (CARRIER). The DISPATCH and the CARRIER have, upon due consideration, determined that a contract agreements to their mutual advantage and best interest, they hereby agree to the following terms and conditions
2. RELATIONSHIP The relationship of CARRIER to DISPATCH shall, at all times, be that of an independent contractor. DISPATCH agrees to solicit, and offer freight transportation shipments for CARRIER from and to such locations between service may be required, subject to the availability of suitable equipment. DISPATCH shall be the agent for CARRIER for searching for loads, booking them, dispatching, handle all paperwork directly with the broker and/or shipper, including advances, and any load problems.
3. TERM The term of this AGREEMENT shall be effective as of the date hereof, and shall continue thereafter for a term of one (1) month of such date, and automatically from year to year thereafter, subject to the right of either party hereto to cancel the AGREEMENT at any time upon not less than thirty (7) days written notice by of one party to another.
4. DISPATCH SERVICE METHOD DISPATCH’s objective is to design a pro-active logistic plan a week in advance, based on CARRIER’s territory preference. The plan is influence by the current situation on the market and/or region, in order toto take advantage of the most profitable loads. DISPATCH’s logistics coordinators (dispatchers) will find loads that best matches CARRIER’s preference, and communicate such options with CARRIER and/or it’s driver. Once CARRIER agrees to accept the load, DISPATCH will send all necessary and required supporting documents to broker/shipper. Once the load confirmation is received, it is forward to CARRIER, for it’s records. DISPATCH agrees to “assist” CARRIER with any load issues, road assistance, advances, paperwork, and/or billing issues.
5. COMPENSATION By the end of the week of receiving the load confirmation from brokers/shippers, DISPATCH will invoice and require payment via electronic payment or other methods for the agreed service rendered. In case that the load gets cancelled by broker/shipper for any reason, CARRIER will receive a credit for the amount of the load in question for future loads. However, if the load gets canceled by CARRIER for any reason, (i.e. breakdown, etc.) CARRIER will not receive credit for the load in question. CARRIER will be compensated directly from other brokers/shippers handling the load, or from a factoring company chosen by CARRIER. The fee shall be determined based on the selection made by CARRIER on the initial Application or other agreements made between CARRIER and DISPATCH in writing.
6. NON-SOLICIATATION CARRIER agrees that it will not solicit traffic from any shipper, consignor, or customer from loads tendered by DISPATCH where the CARRIER transports loads, or is made aware of such traffic, as a result of DISPATCH’s efforts. It is further agreed that this non-solicitation provision shall be in force and effect during the term of this AGREEMENT and for a period of three (3) years from the date of the termination of this AGREEMENT for any reason. In the event of non-compliance with the specific provisions of this paragraph, CARRIER upon discovery of breach, be liable to DISPATCH for 100 percent (100%) of the gross transportation revenue received by CARRIER from said shipper(s) within three (3) years after the date of termination of this AGREEMENT.
7. BILLS OF LADING Each shipment will be evidenced by a bill of lading issued by other brokers/shippers, etc. Such bills of lading or receipts or invoices are however, for the sole purpose of evidencing receipt for the goods and are the responsibility of CARRIER.
8. EQUIPMENT CARRIER agrees to provide, operate and maintain in good working condition, motor vehicles and all allied equipment necessary to perform the Transportation Schedule in a safe, efficient and economical manner.
10. DRIVERS CARRIER agrees to provide properly qualified, trained and licensed drivers and other personnel to perform the transportation and related services under this Agreement and each transportation schedule in a safe, efficient and economical manner. CARRIER’s personnel are expected to conduct themselves in a professional manner at all times, and shall ascertain and comply with all of Customer’s facility rules and regulations while on Customer’s premises.
11. FREIGHT LOSS, DAMAGE OR DELAY CARRIER shall have the sole and exclusive care, custody and control of the shipper’s property from the time it is picked up for transportation, until it is delivered to the destination. CARRIER assumes the liability of a common carrier for loss, delay, damage to or destruction of any and all of shipper’s goods or property while under CARRIER’s care.
12. SUB-CONTRACT PROHIBITION CARRIER specifically agrees that all freight tendered to it by DISPATCH shall be transported on equipment operated only under the authority of CARRIER, and that CARRIER shall not in any manner sub-contract, broker, or in any other form arrange for the freight to be transported by a third party without the prior written consent of DISPATCH.
13. INDEMNIFICATION CARRIER agrees to indemnify, defend and hold DISPATCH (including their officers, directors, employees, subcontractors and agents) harmless from and against any and all liabilities, damage, fines, penalties, costs, claims, demands and expenses of whatever type or nature. CARRIER shall be responsible for and agrees to indemnify DISPATCH for any and all personal injury, property damage, loss, claim, injury, obligation or liability arising from CARRIER’s actions, behavior or transportation pursuant to this agreement.
14. GOVERNING LAW, JURISDICTIONS AND VENU This agreement shall be governed by and constructed in accordance with laws of the State of Texas both as interpretation and performance. DISPATCH and CARRIER hereby consent to and agree to submit to the jurisdiction of the federal and State courts located in Williamson County, Texas in connection with any claims or controversies arising out of this Agreement.
15. ADDITIONAL PROVISIONS In the case of insufficient funds or credit card decline, there is a built in grace period of 7 days after the due date, before the account is subject to suspension. In which case, the account must be paid current and is subject to a reinstatement fee of $100.