Carrier Agreement

 

Agreement (this “Agreement) is made by and between (Company Name) and ______________(“Carrier”) to enable Customer to receive Services from Carrier under the terms and conditions contained in this Agreement.

 

In consideration of the mutual covenants and agreements contained herein, the receipt and sufficiency of which are hereby acknowledge the parties agree as follows:

 

Recitals

 

Whereas, Carrier is in the business of providing Carrier services;

 

Whereas, the “Products” are (name of product shipped by Company Name) and their accessories and materials used by (Company Name) in the manufacture of (name of product shipped by Company Name) and their accessories.

 

Whereas, the parties recognize that the Products are very demanding of quality, timeliness, and price, and that the essence of the relationship between (Company Name) and Carrier is flexibility; timely delivery of necessary quantities of (Company Name) Products; and low costs;

 

Whereas problems should be encountered with respect to any aspect of this Agreement or if the parties should encounter any problems not covered by this Agreement, (Company Name) and Carrier shall discuss them in a cooperative and sincere spirit and attempt to arrive at a mutually acceptable solution; and

 

Whereas, this Agreement commences on ________(“Effective Date”) and terminates on ____________, 200__, (“Termination Date”) unless terminated earlier;

 

NOW THEREFORE FOR GOOD AND VALUABLE CONSIDERATION, THE RECEIPT AND ADEQUACY OF WHICH IS HEREBY ACKNOWLEDGED, AND IN CONSIDERATION OF THE ABOVE PREMISES AND THE MUTUAL PROMISES CONTAINED IN THIS AGREEMENT, THE PARTIES AGREE AS FOLLOWS:

 



Terms and Conditions


 

 

ARTICLE 1 – SERVICES

 

 

1.1    Services.

 

1.1.1 Scope.  The Services to be provided by Carrier are described in Exhibit A that is attached hereto and made a part hereof.  Exhibit A contains a description of the Services, Service sites, Service specification, Service fees and Performance Standards to which the Parties have agreed (the “Services”).  This Agreement is non-exclusive and does not commit (Company Name) to purchase any minimum quantity of services.

 

1.1.2  Freedom of Action.  Nothing in this Agreement shall prevent either party from engaging in similar business with other persons, including, without limit, competitors of the other party, provided that the confidentiality terms of this Agreement are not breached.  Further, it is understood that (Company Name) makes no commitment to any specific volume or class of business or to continue any specific volume or class of business hereunder.

 

1.2  Term

 

This Agreement shall be effective on _______ and shall expire on __________.  The parties may extend the term or any subsequent term of this Agreement by executing a separate written agreement of extension prior to the expiration of the term.

 

1.3  Warranty

 

1.3  Warranties.  Each of Carrier’s warranties made hereunder is materially relied upon by (Company Name) in entering into this Agreement.

 

1.3.1  Authority Warranty.  Each party represents and warrants that all corporate action necessary for the authorization, execution and delivery of this

 

 

 

 

 

Agreement by such party and the performance of its obligations under this Agreement has been taken.  Further, each party represents and warrants that neither the execution of this Agreement nor any performance of this Agreement shall conflict with or be prohibited by any interest, agreement, obligation, contract, order, law, regulation, or duty, oral or written, to which it is a party or by which it is bound.

 

1.3.2  Services Warranty.  Carrier warrants that in any services to be performed hereunder, Carrier shall:

 

            (i)  furnish all equipment and labor in such quantities and of the proper quality to professionally and timely perform the services;

            (ii)  proceed with diligence and promptness and perform the services in accordance with the highest professional workmanship and service standards in the field;

            (iii)  conform to all written, mutually agreed standards, goals, and objectives that govern the services;

            (iv)  achieve ninety eight percent (98%) on-time delivery each month in each traffic lane;

            (v)  perform the services to the satisfaction of (Company Name).

The above is the Service Warranty (“Service Warranty”).  A performance of a service which meets all of the standard of the Service Warranty shall be a Conforming Service (“Conforming Service”).

 

1.3.3  Warranty Disclaimer.  EXCEPT FOR THE WARRANTIES SET FORTH ABOVE, CARRIER GRANTS NO OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED AND DISCLAIMS ALL IMPLIED WARRANTIES OR MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

 

1.4  Remedies.  In the event that service is not a Conforming Service, then (Company Name) may elect the appropriate remedy or remedies as follows:  No approval of any kind, including approval of plans, shall affect Carrier’s following obligations.

 

1.4.1  Late Delivery.  If Carrier does not meet the agreed warranted on-time delivery standard each calendar month, except for lateness excused by force majeure, Carrier will pay to (Company Name) a rebate equal to five percent (5
%) of the total invoiced freight charges for any and all shipments that fall below the 98% on-time delivery.

 

1.4.2  Traffic Lane Non-Conformance.  If Carrier does not meet the above-warranted on-time delivery standard for each traffic lane, except for lateness excused by force majeure, it shall provide a get-well plan to (Company Name) which is satisfactory to (Company Name).

 

1.4.3  Reperformance, Offset, or Reimbursement.  In the case of other Non-Conforming Services, (Company Name) may elect one of the following:

 

            (i)  Carrier agrees promptly to reperform any service not conforming to the requirements of this Agreement when requested by (Company Name) at no charge to (Company Name).  If Carrier, upon such notice of defect, fails promptly to reperform the Nonconforming Service, (Company Name) may do so without further notice and Carrier shall reimburse (Company Name) for all costs incurred in such actions.

            (ii)  Carrier agrees that in cases where (Company Name) has suffered loss of or damage to the Products because of Carrier’s fault or negligence (including without limit Carrier’s failure to meet the standards of care set forth in this Agreement), then (Company Name) may offset such losses or damages against any amounts due to Carrier until such losses or damages are fully reimbursed.

            (iii)  Carrier agrees promptly to refund the purchase price (if payment has been made by (Company Name) or to credit (Company Name’s) account for such purchase price (if payment has been made by (Company Name) of any service not conforming to the requirements of this Agreement when requested by (Company Name).

 

1.5    Prices.

 

Freight and Express Prices are fixed for the first year of the term of this Agreement.  No increase in costs, including without limits costs of fuel, labor or operations shall affect the Freight and Express Prices.  The schedule set forth in  Exhibit B lists such agreed to traffic lanes, transit time and prices.  Carrier and (Company Name) agree that (Company Name) shall be given the benefit of any reduction in Carrier’s cost base promptly and as soon as such costs reductions occur.  In the event parties elect to extend the term or any subsequent term of this Agreement, Carrier may not raise its prices more than five percent (5%) unless it can show that its entire price increase is due to documented cost increases in fuel, labor, and similar items.

 

1.6    Location, License, Permits, and Taxes

 

1.6.1  License.  Carrier, as (Company Name’s) agent, shall secure any necessary license or permits.  Carrier shall maintain at (Company Name’s) expense all cash bonds or deposits as may be necessary in order to secure such license or permits.

 

1.6.2  Taxes.  (Company Name) shall pay all duties, imposts, fees, and taxes, including without limit sales, use, property, excise, value added and gross receipts taxes levied on this Agreement or the (Company Name) Products, except for any taxes levied on Carrier’s franchise, operation (including but not limited to employment taxes), or net income.  Carrier may pay any such taxes on behalf of (Company Name) and (Company Name) shall reimburse Carrier for the same, according to the invoice and payment procedures in this Agreement.

 

 

ARTICLE II – PROCEDURES

 

2.1    Carrier’s Responsibilities.

 

Carrier shall:

 

A.  Maintain procedures to handle, control, and account for Products and services:

--  All shipments must be inspected for tampering and verified against delivery documents prior to removal.  (Company Name) should be inspected upon arrival to note any visual damage or pilferage and a physical count should be conducted.  Carrier shall notify (Company Name) immediately of any shortages, damages, or quantity discrepancies.

 

B.     Provide the following reports:

-- Provide (Company Name) with traffic lane reports by the tenth (10th) working day of each month and in the formats agreed.

--  Provide (Company Name) with a Claims Ratio Report/Loss Ratio Report by the tenth (10th) working day of each month.

 

2.2    Payment

 

2.2.1  Terms  Invoices shall be due and payable within thirty (30) days after receipt of invoice.  In cases where an invoice is not issued, payment shall be due within thirty (30) days after the performance of the services.  (Company Name’s) payment advice shall reference Carrier’s invoice number(s) and date(s).

 

2.2.2  Currency.  Unless expressly provided to the contrary, all amounts stated in this Agreement and all sums payable under this Agreement shall be denominated in United Stated Dollars and all payments made under this Agreement shall be made by wire transfer, cashier's check, or other ready funds in United States Dollars to payee’s account at payee’s designated United States bank.  Forwarder agrees to U.S. Dollars for billing purposes, Carrier will only utilize the Wall Street Journal business buying rate from Monday (published in Tuesday edition) for all shipments made between any Monday and the following Sunday, and that no other surcharge or exchange fees will be chargeable.

 

 

2.2.3  Disputes.  (Company Name) shall have one (1) year after the invoice date to contest in good faith the amounts and items charged.  Amounts subject to good faith contest are not due and payable until thirty (30) days after the dispute is resolved.

 

2.2.4  Statements.  Carrier’s periodic statements shall list all open invoices, invoice dates, and amounts unpaid; payments received during the prior period, and credits, issued during the prior period.

 

2.2.5  Payment Applications.  Payments shall be applied to open invoices solely according to (Company Name’s) payment advice.

 

2.2.6  Credits.  Credits or credit memos shall be paid immediately to (Company Name), unless (Company Name) directs in writing that the amounts are to be applied as offsets to any open invoices.

 

ARTICLE III – LIABILITIES

 

3.1    General Indemnity

 

3.1  General Indemnity.  Carrier shall, in all its performance under this Agreement, fully comply with all applicable national, state, and local laws, rules, regulations, and ordinances and shall indemnify and hold harmless (Company Name) from and against any loss, claim, damage, liability, expense, or cost (including without limitation attorney’s fees and court costs) resulting from failure of such compliance, or out of any other negligence or willful misconduct by Carrier or those acting on Carrier’s behalf.

 

3.1.2  Forfeitures.  Any losses sustained by (Company Name) due to the forfeiture or seizures of cash bonds or deposits will be solely to the account of (Company Name), unless such losses, forfeitures or seizures are due, in whole or in part, to the error of fault of Carrier or of any contractor, subcontractor, agent, or employee of Carrier.  In such a case, the liability of Carrier is to reimburse (Company Name) for such losses in direct proportion to the forfeiture of seizure of cash bonds or deposits.

 

3.1.3        Carrier Liability.

 

A.  The parties agree that Carrier’s care, custody and control over the (Company Name) Products shall commence when the (Company Name) Products are loaded from (Company Name’s) dock to the common Carrier and shall be terminated when the (Company Name) Products are loaded from the common Carrier to (Company Name’s) dock or such other destination as (Company Name) may have designated.

 

B.  If Carrier or any contractor, subcontractor, agent, or employee of Carrier shall fail to meet the standards of care, performance or operation set out in this Agreement and its Exhibits, then Carrier shall be liable for loss of or injury to the (Company Name) Products while in Carrier’s care, performance, custody, and control.  Carrier agrees to be subject to the Carmack Amendment to the Interstate Commerce Act, the conditions of the Pomerene Act and other legislative decisions pertaining to the processing of loss and damage claims.  Carrier shall process 90% of all claims filed by (Company Name) within 45 days of (Company Name’s) filing date.  The remaining 10% shall be processed within 60 days.

 

3.2              General Liability  Each party will indemnify the other against and hold it harmless from any loss, cost, liability or expense (including court costs and reasonable fees of attorneys and other professionals) to the extent it arises out of or in connection with, in whole or in part, any negligence or willful act or omission of it or its employees or agents including but not limited to any such act or omission that contributes to:

(i)  any bodily injury, sickness, disease or death; or

 

(ii)                    any injury or destruction to tangible or intangible property of the other or any related loss of use.

 

3.3              Limitation of Liability  IN NO EVENT SHALL EITHER PARTY BE LIABLE TO ANY PERSON FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT, OR INCIDENTAL DAMAGES, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING IN ANY WAY OUT OF THIS AGREEMENT OR ANY AGREEMENT, UNDERTAKING, OR PERFORMANCE THAT MAY BE PROMISED, PERFORMED, OR EXECUTED TO IMPLEMENT THIS AGREEMENT, PROVIDED HOWEVER, THAT THIS LIMITATION SHALL NOT APPLY TO EITHER THE INDEMNITY OBLIGATIONS OR TO A BREACH OF THE CONFIDENTIALITY OBLIGATIONS OF THIS AGREEMENT.

 

3.4          Insurance

 

Carrier shall maintain comprehensive general and vehicular liability insurance for claims for injury or death to persons and damage to property, as required by federal, state and local laws, statutes and ordinances governing the amount and coverages set forth below:

 

- Workers’ compensation with (1) statutory limits of coverage; and (2) although not required by statute, coverage for any employee entering onto (Company Name).

 

- Employers’ Liability or “Stop Gap” Insurance with limits of not less than One Hundred Thousand Dollars ($100,000.00) each accident.

 

- Commercial General Liability Insurance covering claims for bodily injury, death, personal injury or property damage occurring or arising out of the performance of this Agreement, including coverage for independent contractor’s protection (required if any work will be subcontracted), premises-operation, products/completed operations and contractual liability with respect to the liability assumed by Carrier hereunder.  The limits of insurance shall not be less than:

 

Each Occurrence                              $1,000,000.00

General Aggregate Limit                        $2,000,000.00

Products-Completed Operations Limit            $1,000,000.00

Personal & Advertising Injury Limit            $1,000,000.00

- Comprehensive Automobile Liability Insurance covering the ownership, operation, and maintenance of all owned, non-owned and hired motor vehicles with limits of not less than One Million Dollars ($1,000,000.00) single coverage per occurrence for bodily injury and property damage.  Such insurance shall also extend by endorsement to primary automobile liability and physical damage coverage for any (Company Name) owned or leased vehicle when such vehicle is used by Carrier.

 

Carrier shall provide (Company Name) with a certificate of insurance evidencing the forgoing coverage, naming (Company Name) as an additional insured, and providing for 15 days notice to (Company Name) of any material changes in the coverage.

 

ARTICLE IV – DISPUTE RESOLUTION

 

4.1    Arbitration

 

4.1.1        Binding Arbitration.  Any controversy, claim, or action, whether in law or at equity, whether in tort, contract, warranty, or otherwise, arising out of, relating to, or involving this Agreement and any agreement, undertaking, or performance that may be promised, performed, or executed to implement this Agreement will be settled by arbitration as follows:

            (i) Any arbitration proceeding shall be conducted under the laws of the state of Colorado and the Federal Arbitration Act, and pursuant to the International Commercial Arbitration Rules of the American Arbitration Association insofar as such International Commercial Arbitration Rules do not conflict with the provisions of this Section.

            (ii) Either party may initiate arbitration by giving notice to the other stating an intention to arbitrate, the issue to be arbitrated, and the relief sought.  The site for any arbitration proceeding shall be (Name of City and State).  No arbitrator shall have been employed or retained in any capacity or affiliated with either party during the prior ten (10) years.

(iii) The arbitrators shall promptly, by majority vote, make such award and determination as is appropriate and in accordance with the terms of this Agreement.  The parties will faithfully abide by and perform any award rendered by the arbitrators.  Further, any such award and determination shall be final and binding upon the parties and enforceable in any court of competent jurisdiction.

(iv) The arbitration proceedings and all pleadings and written evidence shall be in the English language.  Any written evidence originally in a language other than English shall be submitted in English translation accompanied by the original or a true copy.

            (v) The prevailing party in such proceeding shall be entitled to collect reasonable attorneys’ fees from the other party.

 

4.2    Choice of Law

 

4.2.1  Choice of Law.  This Agreement and any agreement, undertaking, or performance that may be promised, performed or executed to implement this Agreement shall be governed by and construed under the laws of the State of (State Name), as they apply to agreements made between residents of (State Name) for performance solely within (State Name).  The parties expressly agree that this Agreement any agreement, undertaking, or performance that may be promised, performed, or executed to implement this Agreement shall not be subject to and shall not be interpreted by the United Nations Convention on Contracts for the International Sale of Goods.

 

4.2.2  Compliance with Laws.  Carrier shall be responsible for obtaining, at Carrier’s cost, all necessary administrative and governmental licenses, approvals, and permits and shall generally comply with all laws and regulations for the performance of this Agreement (“Governing Laws”).

 

4.2.3  Foreign Corrupt Practice Act.  (Company Name) is subject to the laws and regulations of the United States including the Foreign Corrupt Practices Act “(FCPA”).  Carrier shall not use any payment or other benefit derived from (Company Name) to offer, promise or pay any money, gift or any other thing of value to any person for the purpose of influencing official actions or decisions affecting this Agreement or with the intention of obtaining or maintaining any business related to (Company Name), while knowing or having reason to know that any portion of this money, gift or thing will, directly or indirectly, be given, offered or promised to:

 

            (i) Any employee, officer, or other person acting in any official capacity for any government or its instrumentalities; or

            (ii) Any political party, party official or candidate for political office.

Further, Forwarder shall maintain books, records, and systems of accounting and control adequate to insure that Carrier’s assets and operations are accounted for that Carrier’s business is carried out according to the direction of Carrier’s managers.

 

4.2.4  Assurances and Compliance.  Carrier shall provide (Company Name) with the assurances and official documents that (Company Name) periodically may request to verify Carrier’s compliance with the Governing Laws or FCPA.  Actions violating the Governing Laws or FCPA are material breaches of this Agreement and may result in civil or criminal penalties.

 

4.3  Limit of Time To Bring Action.  No actions or arbitration’s regardless of form, arising out of this Agreement, may be brought by either party more than one (1) year after such actions or arbitration’s arose, or in the case of nonpayment, more than one (1) year from the date the last payment was due.

 

ARTICLE V – GENERAL

 

5.1  Term and Termination

 

5.1.1  Term.  This Agreement shall become effective on the Effective Date and shall remain in force until the Termination Date.

 

5.1.2  Renewal.  The parties may agree in writing to extend this Agreement for one or more terms of one (1) year.

 

5.1.3  Termination for Convenience.  This Agreement may be terminated in whole or in part at any time by (Company Name) for its own convenience.  Any such termination will not be construed as a breach.  (Company Name)’s exclusive liability and Carrier’s exclusive remedy for such termination will be payment to Carrier for the actual services completed as of the effective date of cancellation.  In no event will (Company Name’s) liability in the aggregate exceed the total price which would have been paid under this Agreement for the work had it not been terminated.  Carrier’s termination claim must be submitted in writing no later than 30 days from the date of receipt of termination notice.

 

5.1.4  Termination for Cause.  This Agreement shall be terminated for cause:

(i)  If either party materially defaults in the performance of any provision of this Agreement, then the non-defaulting party may give written notice to the defaulting party that if the default is not cured within thirty (30) calendar days, the Agreement will be terminated at the end of that period and such termination shall not prejudice or limit either party’s remedies; or

(ii) If either party violates any intellectual property, confidentiality, or license provision of this Agreement, then the non-defaulting party may give written notice to the defaulting party of such violation and of immediate termination and the Agreement will be terminated when such notice is given and such termination shall not prejudice or limit either party’s remedies; or

(iii) Upon:

              (a)  the institution by or against either party of insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of its debts; or

              (b)  either party’s making an assignment for the benefit of creditors; or

                        (c)  either party’s dissolution, this Agreement shall be deemed to have been terminated by the party not so affected and such termination shall not prejudice or limit either party’s remedies.

5.1.5  Duties Upon Termination.  Upon any termination or expiration of this Agreement:

            (i)  all goods of every kind received from or belonging to (Company Name) shall remain the property of (Company Name), and Carrier shall prepare all such items in its possession with reasonable promptness for shipment to (Company Name) or as (Company Name) may direct, F.O.B. shipping point, at (Company Name’s) expense;

(ii)  Carrier shall not retain any copies of any confidential items or information which may have been entrusted to it, and shall return all such items to (Company Name);

(iii)  Carrier shall cease to use any and all trademarks, marks and trade names of (Company Name); and,

(iv)  neither party shall be liable for compensation, reimbursement or damages on account of the loss of prospective profits or anticipated sales or on account of expenditures, investments, leases or commitments in connection with the business or good will of (Company Name) or Carrier, or for any other reason growing out of such termination.

 

5.1.6  Survival.  The terms of this Agreement which by their nature may survive the termination or expiration of this Agreement shall survive the termination of expiration of this Agreement.

 

5.2    General.

 

5.2.1  Assignment.  A mutually agreed consideration for the  parties entering into this Agreement is the reputation, business standing, and good will already honored and enjoyed by Carrier under its present ownership, and, accordingly, Carrier shall not transfer or assign its rights under this Agreement directly or indirectly including without limit in the cases of merger, acquisition of greater than fifty percent (50%) ownership or control interest in Carrier by any party, or sale of Carrier’s assets, without the prior written consent of (Company Name), which consent shall not be unreasonably withheld.  Subject to the above sentence, this Agreement shall be binding upon and inure to the benefit of the parties, their successors and assigns.  Any purported assignment of this Agreement by Carrier without the prior written consent of (Company Name) shall be void.

 

5.2.2  Audit.  (Company Name) shall have the right, by itself or by a mutually acceptable third person auditor, to examine and audit Carrier’s books and records relating to this Agreement at any time during normal business hours upon three (3) days notice to Carrier to ensure compliance with this Agreement.  Carrier shall maintain its records relating to this Agreement for seven (7) years.

 

5.2.3  Confidentiality.  This Agreement and its terms and conditions and any materials marked (“Company Name) Confidential” or similarly are confidential information and will be maintained in confidence by Carrier and will not be disclosed to any third person.

 

5.2.4  Consents.  No consent required to be given under this Agreement shall be unreasonably withheld.

 

5.2.5  Counterparts.  This Agreement shall be prepared in two identical and original counterparts and both of which together shall be one and the same instrument and either of which may be used for purposes of proof.

 

5.2.6  Cumulation of Remedies.  All remedies available to either party under this Agreement are cumulative and may be exercised concurrently or separately, and the exercise of any one remedy shall not be deemed an election of such remedy to the exclusion of other remedies.

 

5.2.7  Independent Parties.  Persons furnished by each party shall be solely the employees or agent of such party and shall be under the sole and exclusive direction and control of the furnishing party.  They shall not be considered employees of the other party for any purpose.  Each party shall remain an independent contractor and shall be responsible for compliance with all laws, rules, and regulations involving, but not limited to, employment of labor, hours of labor, health, and safety, working conditions and payment of wages.  Each party shall also be solely responsible for payment of taxes, including federal, state and municipal taxes, chargeable or assessed with respect to its employees, such as social security, unemployment, worker’s compensation, liability insurance and federal and state withholding.  Each party shall indemnify the other for any loss, damage, liability, claim, demand or penalty including costs, expenses, and reasonable attorneys’ fees assessed against one party that may be sustained by reasons of the other party’s failure to comply with the provisions of this Section.  Neither party nor its employees, officers, directors, or agents shall hold itself out as the agent, employee, partner, or joint venture of the other party, and shall make no commitment or engagement on the account of or on behalf of the other party.

 

5.2.8  Force Majeure.  Nonperformance of either party shall be excused to the extend that performance is rendered impossible by strike, fire, flood, governmental acts, orders or restrictions, or any other reason where failure to perform is beyond the control and not caused by the negligence of the nonperforming party.  In the event of any delay caused by such contingency, the delayed party may defer any performance or delivery prevented by the force majeure condition for a period equal to the time lost by reason of such delay, provided, however, that the delayed party promptly commences and reasonably and diligently pursues actions to cure or circumvent such cause.  Whenever any cause delays or threatens to delay the timely performance of this Agreement, Carrier shall immediately notify (Company Name) of all relevant information with respect to such cause.  If Carrier is delayed in any performance or delivery by more than ten (10) days, (Company Name) may terminate the delayed performance or delivery or this Agreement and such termination shall not be a breach of this Agreement and shall be without penalty.

 

5.2.9  Governing Language.  English shall be the language of this Agreement and the English language shall govern all disputes, performance, communication, and interpretations.

 

5.2.10  Headings.  The descriptive headings of the several Articles and Sections of this Agreement are inserted for convenience only and do not constitute a part of this Agreement and shall not affect the interpretation of this Agreement.

 

5.2.11  Joint Work Product.  The parties further acknowledge that they have thoroughly reviewed this Agreement and bargained over its terms and that for convenience, (Company name) has written down the terms of this Agreement.  Accordingly, this Agreement shall be construed without regard to the party or parties responsible for its preparation and shall be deemed to have been prepared jointly by the parties.

 

5.2.12  Notices.  Any notice required or permitted to be given under this Agreement shall be in writing and shall be deemed to be sufficiently given if delivered by hand or if sent by courier with a receipt requested or by registered air mail, postage prepaid, addressed to (Company Name) or to Carrier, as the case may be, at the addresses first set forth above or to such other address as may be furnished for such purpose by notice duly given under this Agreement.  Such notice shall be deemed to have been given when delivered by hand or two (2) days after deposit with the courier or mail service.  Any party may change its address for such communications by giving such notice to the other party in conformance with this section.

 

5.2.13  Publicity.  Neither party shall publicly announce or disclose the existence of this Agreement or its terms and conditions, or advertise or release any publicity or press release regarding this Agreement, without the prior written consent of the other party.  Nothing in this Agreement shall limit a party from making such disclosures as are required by law or court order, provided notice of such disclosures is given to the other party.

 

5.2.14  Severance.  If any provision of this Agreement is held to be invalid by a court of competent jurisdiction, then the remaining provisions shall nevertheless remain in full force and effect.

 

5.2.15  Time.  Time is of the essence in all performances hereunder.  The words day, month, quarter, year, and the like shall mean calendar day, month, quarter, year, and the like unless expressly provided to the contrary.

 

5.2.16  Waiver.  The failure of any party to this Agreement at any time or times to require performance of any provision of this Agreement shall in no manner affect such party’s available remedies or right at a later time to enforce the same.  No waiver by any party of any condition, or of the breach of any term, convenant, representation or warranty contained in this Agreement, whether by conduct or otherwise (in any one or more instances) shall be deemed to be or construed as a further or continuing waiver of any such condition or breach or of any remedy or as a waiver of any other condition or as a breach of any other term, convenant, representation or warranty of this Agreement.

 

5.3    Execution.

 

5.3.1  Entire Agreement.  The terms and conditions of this Agreement are the entire agreement between the parties and supersede all previous agreements, proposals, and understandings, whether oral or written, between the parties with respect to the subject matter of this Agreement (except for confidentiality agreements governing the exchange of information prior to the Effective Date which shall continue to govern periods prior to the Effective Date) and no agreement or understanding varying or extending the same shall be binding upon either party unless in a written document signed by both parties.  This Agreement shall supersede all inconsistent or additional terms contained in any purchase orders, sale acknowledgements, bills of lading, or other similar documents delivered by the parties.

 

5.3.2  Execution.  This Agreement shall not be effective until it has been executed by Carrier and  accepted by an authorized representative of (Company Name) at its principal place of business.

 

5.3.3  Electronic Execution.  To expedite the process of entering into this Agreement, the parties acknowledge that Transmitted Copies of this Agreement shall be equivalent to original documents until such time as original documents are completely executed, produced, and delivered, and in the event of the use of Transmitted Copies, each party shall use its best efforts, at its own expense, to execute, produce, and deliver original copies.  “Transmitted Copies” shall mean copies which are reproduced or transmitted via photocopy, facsimile, or other process of complete and accurate reproduction and transmission.

 

5.3.4  Capacity.  By it’s signature below, Carrier represents and warrants as follows, acknowledging that each and every such representation and warranty has been materially relied upon by (Company Name) in entering into this Agreement:

(i)  Carrier certifies by execution that the signer is authorized to execute this agreement and that all necessary consents have been obtained.

(ii)  Carriers is, and has held itself out to be, experienced in duties and undertakings similar to those contemplated in the agreement.

(iii)  This Agreement is in the English language, and Carrier (itself or through its translators) understands and is capable of fluently reading, speaking, and communicating in the English language.

(iv)  Carrier has read and understood all of the provisions of this agreement.

(v)  Carrier has had the opportunity to seek independent advice and counsel related to this agreement.

 



IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective Date.

 

 

(COMPANY NAME)                                                                                   CARRIER

 

By:_________________________________________                    By:  _______________________________

                        (signature)                                                                                            (signature)

 

 

____________________________________________                    ___________________________________

                        (print name)                                                                                       (print name)

 

 

____________________________________________                    ___________________________________

                        (title)                                                                                                    (title)

 

 

____________________________________________                    ___________________________________

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