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Broker/Shipper Transportation Agreement
Terms and Conditions

All shipments to or from Shipper (which term includes but is not limited to the exporter, importer, sender, receiver, owner, consignor, consignee, 3PL/4PL logistic handler, transferor or transferee of the shipments or the agents thereof, referred to as the “SHIPPER”) will be handled by New World Transportation Services, Inc., the broker handling this shipment (referred to as the “BROKER”), on the following standard terms and conditions.  These standard terms and conditions outline the provisions by which the BROKER provides service for the SHIPPER and the BROKER’s responsibilities for delivery of such services.  No agent or employee of either party may alter or waive any of the following conditions.  These terms and conditions are non-negotiable and have been prepared by the BROKER on the BROKER’s behalf.

THIS SHIPPING AGREEMENT SUPERCEDES AND NEGATES ANY CLAIMED, ALLEGED OR ASSERTED ORAL AGREEMENT, PROMISE, REPRESENTATION OR UNDERSTANDING BETWEEN THE SHIPPER AND THE BROKER WITH RESPECT TO SHIPMENTS TENDERED TO BROKER FOR SHIPPING.

BROKER  is licensed as a Property Broker by the Federal Motor Carrier Safety Administration (FMCSA) in Docket Number MC-484125, and as a licensed broker, arranges for freight transportation.  Upon request of SHIPPER, BROKER will provide copies of BROKER’s authorities and surety bond or trust fund.

SHIPPER, to satisfy some of its transportation needs, desires to utilize the services of BROKER to arrange for transportation of SHIPPER’s freight.

  1. TERM.  This agreement shall be in effect for each shipment tendered to BROKER by SHIPPER, transported by brokered truck.

  2. SERVICE.
     BROKER agrees to arrange for transportation of SHIPPER’s freight pursuant to these terms and conditions and in compliance in all material respects with all federal, state and local laws and regulations relating to the brokerage of the freight.  BROKER’s responsibility under these terms and conditions shall be limited to arranging for, but not actually performing, transportation of SHIPPER’s freight.  The parties may, upon written mutual agreement, include additional service terms to be attached to this agreement as an appendix.

  3. VOLUME.
      SHIPPER agrees to tender the shipment to BROKER, and BROKER agrees to arrange for the transportation of said shipment.  SHIPPER is not restricted from tendering freight to other brokers or directly to motor carriers.  BROKER is not restricted from arranging transportation for other parties.  SHIPPER shall be responsible to BROKER for timely and accurate delivery instructions and description of the cargo, including any special handling or security requirements, for any shipment.

  4. FREIGHT CARRIAGE.
      BROKER warrants that it has entered into, or will enter into a bilateral written contract of carriage with each carrier it utilizes in performance of the transportation under this agreement.  BROKER further warrants that those contracts comply with all applicable federal and state laws and regulations and shall include the following provisions: Carrier is in, and shall maintain compliance during the term of this agreement, 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 its drivers), as defined in 49 CFR §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 hours of service regulations; Sanitation, temperature and contamination requirements for transporting food, perishable and other products, and the qualification, 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. Carrier shall agree to defend, indemnify and hold BROKER and SHIPPER harmless from all damages, claims or losses arising out of its performance of agreement, including cargo loss and damage, theft, delay, damage to property and personal injury or death, to the fullest extent permissible under applicable federal and state law. Carrier shall agree that its liability for cargo loss or damage shall be no less than that of a common carrier as provided for in 49 USC 14706 (the Carmack Amendment).  Exclusions in carrier’s insurance coverage shall not exonerate carrier from this liability. Carrier shall agree to maintain at all times during the term of this agreement, insurance coverage with limits not less than the following:
      1. General liability, $1,000,000.00
      2. Auto liability, $1,000,000.00
      3. Cargo liability, $100,000.00
      4. Worker’s compensation as required by law.

BROKER shall verify that each carrier it utilizes in performance of this agreement has insurance coverage as defined above.

    1. Carrier shall agree that the provisions contained in 49 CFR 370.1 et seq. shall govern the processing of claims for loss, damage, injury or delay to property and the processing of salvage.

    2. The parties agree that BROKER is the sole party responsible for payment of carrier’s charges.  Failure of BROKER to collect payment from its customer shall not exonerate BROKER of its obligation to pay carrier’s undisputed invoice within 30 days of receipt of the bill of lading or proof of delivery, provided carrier is not in default under the terms of this agreement.  If BROKER has not paid carrier’s undisputed invoice as agreed, and carrier has complied with the terms of this agreement, carrier may seek payment from the SHIPPER or other party responsible for payment after giving BROKER 10 business days advance written notice.  Carrier shall not seek payment from SHIPPER or any other party responsible for payment if SHIPPER or such other party can prove payment to BROKER.

    3. Carrier shall agree that, at no time during the term of its contract with BROKER shall it have an “Unsatisfactory” safety rating as determined by the Federal Motor Carrier Safety Administration (FMCSA).  If carrier receives an “Unsatisfactory” safety rating, it shall immediately notify BROKER.  BROKER shall not knowingly utilize any carrier with an “Unsatisfactory” safety rating in the performance of this agreement.

    4. Carrier shall agree that the terms and conditions of its contract with BROKER shall apply on all shipments it handles for BROKER.  Any terms in a tariff that are referenced in the carrier contract which are inconsistent with the contract shall be subordinate to the terms of the contract.

    5. Carrier shall expressly waive all rights and remedies under Title 49 USC, Subtitle IV, Part B to the extent they conflict with the contract.

    6. BROKER further warrants it will require proof of insurance and operating authority from each carrier and, should BROKER utilize the service of any carrier or other broker on SHIPPER’s behalf, which carrier and/or broker does not have proof of insurance and/or operating authority, BROKER agrees to indemnify and hold harmless the SHIPPER from all legitimate claims not paid by carrier, including but not limited to cargo loss and damage claims.

  1. RECEIPTS AND BILLS OF LADING.
      If requested by SHIPPER, BROKER agrees to provide SHIPPER with proof of acceptance and delivery of such loads in the form of a signed Bill of Lading or Proof of Delivery, as specified by SHIPPER.  SHIPPER’s insertion of BROKER’s name on the bill of lading shall be for SHIPPER’s convenience only and shall not change BROKER’s status as a property broker.  The terms and conditions of any freight documentation used by BROKER or carrier selected by BROKER may not supplement, alter, or modify the terms of this agreement.

  2. PAYMENTS.
      BROKER shall invoice SHIPPER for its services in accordance with the rates, charges and provisions with any written rate agreements, and any written supplements or revisions that are mutually agreed to between the parties.  If rates are negotiated between the parties and not otherwise confirmed in writing, such rates shall be considered “written,” and shall be binding upon BROKER’s invoice to SHIPPER and SHIPPER’s payment to BROKER.  SHIPPER agrees to pay BROKER’s invoice due upon SHIPPER’s receipt of invoice without deduction or setoff.  BROKER shall apply payment to the amount due for the specified invoice, regardless whether there are earlier unpaid invoices.  Payment of the freight charges to BROKER shall relieve SHIPPER, consignee or other responsible party of any liability to the carrier for non-payment of its freight charges; and BROKER hereby covenants and agrees to indemnify SHIPPER, Consignee or other responsible party against such liability.

  3. CLAIMS.
      Claims will be processed according to the following terms.
    1. Freight Claims – SHIPPER must file claims for cargo loss or damage with BROKER within ninety (90) days from the date of such loss, shortage or damage, which for purposes of the agreement shall be the delivery date, or in the event of non-delivery, the scheduled delivery date.  SHIPPER must file any civil action against BROKER in a Court of Law within two (2) years from the date the carrier or BROKER provides written notice to SHIPPER that the carrier has disallowed any part of the claim in the notice.  Carriers utilized by BROKER shall agree in writing with BROKER to be liable for cargo loss or damage as outlined in paragraph 4.c. above.  The carrier’s cargo liability for any one shipment shall not exceed $100,000.00, unless BROKER is notified by SHIPPER of the increased value prior to shipment pick up and with reasonable advance notice to allow BROKER and/or the carrier to procure additional insurance coverage.  It is understood and agreed that the BROKER is not a carrier and that the BROKER shall not be held liable for loss, damage or delay in the transportation of SHIPPER’s property unless caused by BROKER’s negligent acts or omissions in the performance of this agreement.  BROKER shall assist SHIPPER in the filing and/or processing of claims with the carrier.  If payment of claim is made by BROKER to SHIPPER, SHIPPER automatically assigns its rights and interest in the claim to BROKER.  In no event shall BROKER or BROKER’s carrier be liable to SHIPPER for special, incidental, or consequential damages that related to loss, damage or delay to a shipment, unless SHIPPER has informed BROKER in written or electronic form, prior to or when tendering a shipment or series of shipments to BROKER, of the potential nature, type and approximate amount of such damages, and BROKER specifically agrees in written or electronic form to accept responsibility for such damages.
    2. All other claims – The parties shall notify each other of all known material details within sixty (60) days of receiving notice of any claims other than cargo loss or damage claims, and shall update each other promptly thereafter as more information becomes available.  Civil action, or arbitration, if any, shall be commenced within two (2) years from the date either party provides written notice to the other party of such a claim.
  4. INSURANCE.  BROKER agrees to procure and maintain at its own expense, at all times during the term of this Agreement, the following insurance coverage amounts:
    1. Comprehensive general liability insurance covering  bodily injury and property damage: $1,000,000.00
      Contingent cargo insurance: $250,000.00

      BROKER shall, upon request of SHIPPER, submit to SHIPPER a certificate of insurance as evidence of such coverage and which names SHIPPER as “Certificate Holder.”

  1. SURETY BOND.
      BROKER shall maintain a surety bond or trust fund agreement as required by the Federal Motor Carrier Safety Administration in the amount of $10,000.00 and furnish SHIPPER with proof upon request.

  2. HAZARDOUS MATERIALS.
      SHIPPER and BROKER shall comply with all applicable laws and regulations relating to the transportation of hazardous materials as defined in 49 CFR §172.800, §173 and §397 et seq. to the extent that any shipments hereunder constitute hazardous materials.  SHIPPER is obligated to inform BROKER immediately if any such shipments constitute hazardous materials.  SHIPPER shall defend, indemnify and hold BROKER harmless from any penalties or liability of any kind, including reasonable attorney fees, arising out of SHIPPER’s failure to comply with applicable hazardous materials laws and regulations.

  3. HOMELAND SECURITY.
      As applicable to each, respectively, BROKER and SHIPPER shall comply with state and federal Homeland Security related laws and regulations.

  4. DEFAULT.
      Both parties will discuss any perceived deficiency in performance and will promptly endeavor to resolve all disputes in good faith.  However, if either party materially fails to perform its duties under this agreement, the party claiming default may terminate this agreement with ten (10) days written notice to the other party.  SHIPPER shall be responsible to pay BROKER for any services performed prior to the termination of this agreement and for shipments not yet completed and/or not yet invoiced to SHIPPER.

  5. INDEMNIFICATION.
      Subject to the insurance limits in Section 8, BROKER and SHIPPER shall defend, indemnify and hold each other harmless against any claims, actions or damages, including, but not limited to, cargo loss, damage, or delay and payment of rates and/or accessorial charges to carriers, arising out of their respective performance under this agreement, provided, however, the indemnified party shall not offer settlement in any such claim without the agreement of the indemnifying party, which agreement shall not be unreasonably withheld.  If the indemnified party offers or agrees to a settlement for such a claim without written agreement of the indemnifying party, the indemnifying party shall be relieved of its indemnification obligation.  Neither party shall be liable to the other party for any claims, actions or damages due to the negligence of the other party.  Although Section 8 only imposes insurance requirements upon BROKER, for purpose of this Section 13, those amounts shall also limit the scope of SHIPPER’s indemnification obligations.  The obligation to defend shall include all costs of defense as they accrue.

  6. ASSIGNMENT/MODIFICATIONS OF AGREEMENT.   Neither party may assign or transfer this agreement, in whole or in part, without the prior written consent of the other party.  No amendment or modification of the terms of this agreement shall be binding unless in writing and signed by the parties.

  7. SEVERABILITY/SURVIVABILITY.  In the event that the operation of any portion of this agreement results in a violation of any law, or any provision is determined by a court of competent jurisdiction to be invalid or unenforceable, the parties agree that such portion or provision shall be severable and that the remaining provisions of the agreement shall continue in full force and effect.  The representations and obligations of the parties shall survive the termination of this agreement for any reason.

  8. INDEPENDENT CONTRACTOR.  It is understood between BROKER and SHIPPER that BROKER is not an agent for the carrier or SHIPPER and shall remain at all times an independent contractor.  SHIPPER does not exercise or retain any control or supervision over BROKER, its operations, employees or carriers.

  9. NONWAIVER.  Failure of either party to insist upon performance of any of the terms, conditions or provisions of this agreement, or to exercise any right or privilege herein, or the waiver of any breach of any of the terms, conditions or provisions of this agreement, shall not be construed as thereafter waiving any such terms, conditions, provisions, rights or privileges, but the same shall continue and remain in full force and effect as if no forbearance or waiver had occurred.

  10. NOTICES.  Unless the parties notify each other in writing of a change of address, any and all notices required or permitted to be given under this agreement shall be in writing or fax with machine imprint on paper acknowledging successful transmission, and shall be addressed with the information the SHIPPER has on file with the BROKER at the time of shipment.

  11. FORCE MAJEURE.  Neither party shall be liable to the other for failure to perform any of its obligations under this agreement during any time in which such performance is prevented by an occurrence beyond its control and arising without its fault or negligence, including without limitation,  fire, flood or other natural disaster or acts of God, war, embargo, strikes, lockouts or other labor disputes, riot, civil disobedience or the intervention of any government authority, or any other cause outside of the reasonable control of the SHIPPER or BROKER, provided that the party so prevented uses its best efforts to perform under this agreement and provided further, that such party provide reasonable notice to the other party of such inability to perform.  Economic hardships, including, but not limited to, recession and depression, shall not constitute Force Majeure events.

  12. CHOICE OF LAW AND VENUE.  All questions concerning the construction, interpretation, validity and enforceability of this agreement, whether in a court of law or in arbitration, shall be governed by and construed and enforced in accordance with the laws of the State of Georgia, without giving effect to any choice or conflict of law provision or rule that would cause the laws of any other jurisdiction to apply.

  13. DISPUTE RESOLUTION.   In the event of a dispute arising out of this agreement, including but not limited to Federal or State statutory claims, the parties' sole recourse (except as provided below) shall be to arbitration. Proceedings shall be conducted under the rules of an industry-recognized arbitrator at BROKER’s sole discretion.  Arbitration proceedings shall be started within two (2) years from the date of alleged loss. 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. 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 arbitrator or such other place as mutually agreed upon in writing, or by conference call or video conferencing upon agreement of the Parties, 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 Georgia 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.
    1. Subject to the time limitation set forth in paragraph 21 above, for disputes where the amount in controversy exceeds $15,000.00 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.
    2. Subject to the time limitation set forth in paragraph 21 above, for disputes where the amount in controversy does not exceed $15,000.00 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.
    3. Venue, controlling law, and jurisdiction in any legal proceedings under subparagraphs a or b above shall be in the State of Georgia.

  14. ENTIRE AGREEMENT.
      This agreement, including all appendices and addenda, constitutes the entire agreement intended by and between the parties and supersedes all prior agreements, representations, warranties, statements, promises, information, arrangements and understandings, whether oral, written, expressed or implied, with respect to the subject matter hereof.  Any modifications to this agreement shall be highlighted or italicized and initialed by both parties to be valid.  The parties further intend that this agreement constitutes complete and exclusive statement of its terms and that no extrinsic evidence may be introduced to reform this agreement in any judicial or arbitration proceeding involving this agreement.

    1009-7 Issue 1 Effective 12/8/2009