Applicability. Unless expressly superseded by a written contract signed by an officer of Plymouth Poultry Company (“PLYMOUTH”) these Terms and Conditions, as amended from time to time (“T&Cs”), shall govern motor carrier service (“Services”) provided by any motor carrier (“Carrier”) performing motor carrier services at the request of PLYMOUTH including, but not limited to, the motor carrier identified on any bill of lading issued by PLYMOUTH. Any terms and conditions on any transactional or shipment-specific document, including, but not limited to, any carrier issued bill of lading, dock receipt, manifest or similar documentation exchanged between the parties other than a PLYMOUTH issued bill of lading and these T&Cs shall not apply to any Services and shall not be binding on or applicable to PLYMOUTH. PLYMOUTH and Carrier represent and warrant that their relationship is that of independent contractors. Carrier is responsible for the acts or omissions of any and all personnel providing or engaged to provide the Services. Carrier acknowledges and agrees that all Services will be performed using motor vehicle equipment operating pursuant to Carrier’s for-hire motor carrier authority and that in no event will Carrier subcontract, broker, interline, interchange or otherwise allow any third-party to transport any cargo or equipment tendered to Carrier hereunder. In the event of any violation of this prohibition, without limiting any other rights or remedies of PLYMOUTH under these T&Cs, Carrier shall remain full liable for the acts and omissions of the transporting carrier and its personnel, and PLYMOUTH may make payment for the Services directly to the transporting carrier, which payment will relieve PLYMOUTH of any and all obligation to pay Carrier for the services in question.
Authorization and Compliance. PLYMOUTH is authorized to tender the cargo in question to Carrier for transportation. Carrier warrants and represents that it, and that any personnel used by Carrier in the performance of Services, at all times while Services are performed, holds any and all licenses, permits, authorizations and other qualifications necessary to perform the Services in accordance with all applicable laws, rules and regulations (“Applicable Law”). All of Carrier’s services will be performed in accordance with Applicable Law. Without limiting the foregoing, Carrier shall only utilize equipment that is in compliance with, and shall otherwise comply with, applicable requirements of the California Air Resources Board (“CARB”) including, but not limited to including the Truck and Bus Regulation (“TBR”) at 13 C.C.R. § 2025, the Drayage Truck Regulation (“DTR”) at 13 C.C.R. § 2027, the regulation on Transportation Refrigeration Units (“TRU”) at 13 C.C.R. § 2477 et. Seq., and the Tractor Trailer Greenhouse Gas (“GHG”) regulation at 17 C.C.R. § 95300 et. Seq.,.
Cargo Handling. Carrier shall be responsible for the safety and sufficiency and sanitary conditions of all items used in the transportation of the goods. Carrier must confirm the vehicle is in appropriate physical condition to transport the goods tendered, and any such equipment must be dry, leak proof, free of harmful or offensive odor, free from pest infestation and free from evidence of prior cargo that could render the shipment unsafe. Carrier warrants that such equipment shall never have been used to transport any waste (whether hazardous or not), refuse, garbage, rodenticide, pesticide, or insecticide. Carrier will comply with handling instructions including compliance with requirements related to transportation of temperature controlled shipments. Carrier shall be solely responsible to ensure that transporting conveyances are set to, and maintained at, the appropriate temperature at all times during transportation and shall maintain, and provide upon request, downloadable temperature reports demonstrating such compliance at all times while Services are being performed upon request of PLYMOUTH. Carrier acknowledges and agrees that any cargo delivered without the original seal intact or if Carrier cannot provide a downloadable report demonstrating to PLYMOUTH’s satisfaction that required temperatures were maintained during the entirety of transportation, such cargo may be deemed to have been contaminated or adulterated in the sole discretion of PLYMOUTH or its customer, and that any such cargo may be rejected as a total loss.
Rates and Payments. Carrier will charge and PLYMOUTH will pay the rates and charges agreed to in a writing by the parties including, but not limited to, a load confirmation form, which charges shall constitute the entire compensation due Carrier for Services. Payment will not be due or owing until the original proof of delivery has been submitted to PLYMOUTH. Assuming original proof of delivery has been received by PLYMOUTH, payment will be made within terms negotiated by Plymouth and Carrier. PLYMOUTH may withhold any amounts owed by Carrier to PLYMOUTH. In no event will Carrier have any lien on any cargo transported to or from PLYMOUTH or otherwise withhold delivery of such cargo.
Cargo Loss and Damage. Carrier shall have the sole and exclusive care, custody and control of the cargo tendered hereunder from the time it is delivered to Carrier for transportation until delivery to the consignee accompanied by the appropriate receipts. Carrier will be liable for cargo loss, damage or delay as a “carrier” pursuant to the Carmack Amendment as currently codified at 49 U.S.C. § 14706, which liability shall be for the full retail invoice value of the commodities involved, except in no event will such liability exceed $100,000 per shipment. Carrier will provide at least nine (9) months from the date of delivery or the date delivery should have occurred, if none, for the claimant to file a claim for cargo loss, damage or delay, and at least two (2) years from the date of complete denial of the claim during which the claimant is entitled to commence legal action. Carrier waives any right to salvage any cargo as well as any right to offset salvage value from its liability.
Insurance. While performing services, unless greater amounts are required by law, Carrier shall maintain automobile liability and commercial general liability insurance each with limits of not less than $1,000,000 per occurrence, workers’ compensation insurance as required by law, and motor truck cargo insurance with limits of not less than $100,000 per occurrence which insurance shall contain no conditions to or exclusions from coverage likely to result in denial of claims arising from services to be provided hereunder. Carrier shall provide copies of any insurance policy required hereunder upon request.
Indemnification. CARRIER shall defend, indemnify, and hold PLYMOUTH and its customer, and each of their affiliated entities harmless from and against, and shall pay and reimburse, all direct or indirect loss, liability, damage, claim, fine, cost or expense, including reasonable attorney’s fees, arising out of or in any way related to the performance of, or failure to perform, Carrier’s services, or breach of these T&Cs by Carrier, its employees or independent contractors working for Carrier (collectively, the “Claims”) including, but not limited to, claims by any third party seeking payment with respect to Services rendered pursuant to any bill of lading showing Carrier as the carrier of record, provided, however, that Carrier’s indemnification and hold harmless obligations under this paragraph will not apply to the prorated extent that any Claim is directly and proximately caused by the negligence or other wrongful conduct of the party to be defended, indemnified or held harmless. Carrier hereby expressly waives any exclusive remedy defense, including, but not limited to, those available under any workers’ compensation or other occupational accident statutory regime, to the extent necessary to effectuate Carrier’s obligations under this provision.
Dispute Resolution. This Agreement, and disputes hereunder, are subject to federal transportation law to the extent relevant and otherwise, to the laws of the state of Washington without regard to the choice of law rules thereof. Each party hereto (a) agrees that any suit, action, or other legal proceeding arising out of or relating to these T&Cs may be brought in any court of competent jurisdiction in Washington; (b) consents to the exclusive jurisdiction of such courts in any such suit, action, or proceeding arising from or related to this Agreement or the relationship of the parties; and (c) waives any objection which it may have to the laying of venue of any such suit, or proceeding in any of such courts. PLYMOUTH and Carrier expressly waive any and all rights and remedies allowed under 49 U.S.C. § 14101 to the extent that such rights and remedies conflict with these T&Cs.