The Ogre End User ("Customer") and OGRE-S (“OGRE-S”), desire to enter into a business relationship governed by this freight broker agreement (“Agreement”). That relationship is built on mutual trust and added value. OGRE-S will earn each load the Customer ships with OGRE-S. Nothing in this Agreement requires the Customer to use OGRE-S and this Agreement is not exclusive. Rather, when Customer decides to use OGRE-S, this Agreement establishes the ground rules for that transaction. OGRE-S and the Customer may be collectively referred to as the “Parties” or individually either may be referred to as “Party” in this Agreement. The Parties hereby agree as follows:
1. Parties. Customer is a Shipper and/or Consignee of certain goods it wishes to have transported. OGRE-S is a freight broker. OGRE-S is not acting as a motor carrier. OGRE-S contracts with various freight carriers (“Carriers”) on behalf of the Customer for the purpose of obtaining discounted rates for transportation. OGRE-S reserves the right, in its sole discretion, to refuse any shipment at any time.
2. Term of Agreement. The term of the agreement shall be for one month, renewing automatically month to month until a new agreement is signed or one year has elapsed without Customer initiating another transaction with OGRE-S. Additionally, either Party has the right to cancel this agreement upon thirty (30) days written notice to the other Party.
3. Tariffs and Quotes. OGRE-S has obtained, and will obtain, tariffs and quotes from its Carriers (each a “Tariff” or “Quote”). In the event of a conflict in the terms of this Agreement and an applicable Tariff or Quote then in effect with a selected Carrier, in every instance the Tariff or Quote shall take precedence and control in the interpretation of the rights and obligations of the Parties. If no conflict exists with respect to the Carrier’s Tariff or Quote, this Agreement shall control.
4. Bills of Lading. The Customer shall use a bill of lading provided by OGRE-S (“OGRE-S BOL”) for all LTL shipments. Truckload shipments will have a load confirmation sent to the carrier. The Customer shall complete, or cause to be completed, all the appropriate documents required for carriage in light of the services being sought and the pick up or destination requested. In the event the Customer fails to timely and properly complete the appropriate documents, the Customer hereby grants authorization to OGRE-S, where permitted by law, to complete them. OGRE-S may at its option, but without obligation, complete, correct or replace the documents for Customer at the expense of the Customer. If a substitute form of bill of lading is needed to complete delivery of this shipment and OGRE-S completes that document, the terms of the completed bill of lading will govern and OGRE-S will be exonerated from all liability for undertaking such actions on behalf of the Customer. All OGRE-S BOLs are non-negotiable and have been prepared by the Customer, or by OGRE-S on behalf of the Customer in accordance with the Customer’s instructions and approved by the Customer, and shall be deemed, conclusively, to have been prepared by the Customer. The Customer is required to provide the OGRE-S BOL to the Carrier designated by OGRE-S. Any failure to provide the proper OGRE-S BOL to the designated Carrier shall release OGRE-S from any liability. OGRE-S shall have no obligation to make any payments or honor any rate quotes in any of the following instances: (i) the unauthorized alteration or use of bill of lading, or (ii) tendering of shipments to any carrier other than that designated by OGRE-S, or (iii) the use of any bill of lading not authorized or issued by OGRE-S.
5. Customer Representations and Warranties to OGRE-S. The Customer represents and warrants that at all times during the term of this Agreement, it will be in compliance with all applicable laws, rules, and regulations (“Laws”) including applicable Laws relating to customs, import and export required by country to, from, through or over which the shipment may be carried. The Customer agrees to furnish such information and complete and attach to the SOL BOL such documents as are necessary to comply with such Laws. Any individual or entity acting on behalf of the Customer in scheduling shipments or undertaking any other performance hereunder warrants and represents that it has the right to act on behalf of and legally bind the Customer. OGRE-S assumes no liability for any loss or expense due to the failure of the Customer to comply with this paragraph and Customer shall indemnify and hold OGRE-S harmless for any claims or damages resulting from violation of this paragraph.
6. Payment. OGRE-S will bill Customer on a per transaction basis upon receipt of carrier invoice being received and processed by OGRE-S, or OGRE-S will bill Customer weekly on an itemized basis. All charges are payable in US Dollars and are due and payable (15) days from the date of billing (Net 15) by credit card payment, bank wire, or check. Past due payments shall be subject to an additional charge at the rate of 1.5% per month of the average outstanding balance due, or the highest rate of interest permitted by applicable law, whichever is less. All funds received by OGRE-S will be applied to the invoice for which they are designated. If no invoice is designated then OGRE-S will apply funds to the oldest (based on pick-up date) invoiced bill of lading that is outstanding. In the event this Agreement is placed by OGRE-S in the hands of an attorney or collection agency for collection, Customer agrees to pay, in addition to the account balance, all collection costs including reasonable attorney's fees, (including such fees and costs incurred in the successful defense of any cross claim or counterclaim brought against OGRE-S).
7. Credit Approval. Payment terms and credit limits are subject to credit approval, which shall be determined from time to time, in the sole and absolute discretion of OGRE-S. The Customer grants OGRE-S the right to perform such credit and background searches as OGRE-S deems necessary. When paying by credit card or electronic funds, the Customer agrees it will be responsible for all charges due and owing, including any adjustments, on account of such Customer's shipment. The Customer authorizes OGRE-S to charge the Customer's credit card or bank account for any charges.
8. Determination of Charges. The Customer shall be liable for all charges payable on account of such Customer's shipment. Such charges may include transportation, fuel and other applicable accessorial charges, all adjustments issued by the Carrier(s) after the shipment, and all duties, customs assessments, governmental penalties, fines and taxes. OGRE-S reserves the right to amend or adjust charges and to re-invoice the Customer in the following events: (i) if the original quoted amount was based upon incorrect information provided by the Customer, (ii) if additional services by the Carrier were required, or(iii) if the Customer authorized the Carrier to perform the pick-up, transportation and delivery functions other than contemplated by the bill of lading. Any disputes by Customer of any invoice issued by OGRE-S shall be made in writing, specifically indicating the nature of the dispute and received by OGRE-S at their offices within 15 days from the date of the invoice. In the event OGRE-S does not receive timely written notice of the dispute, the charges will be conclusively presumed to be valid.
9. Claims and Limitations of Liability. Customer agrees to indemnify and hold harmless OGRE-S from, and OGRE-S is not liable for, any loss, damage, mis-delivery or non-delivery, caused by: (i) the act, default or omission of a Carrier, the Customer or any other party who claims interest in the shipment,(ii) the nature of the shipment or any defect therein, (iii) a violation by the Customer of any provision of this Agreement, the bill of lading, the Carrier's Tariff, including, improper or insufficient packing, securing, marking or addressing, (iv) failure to observe any of the rules relating to shipments not acceptable for transportation or shipments acceptable only under certain conditions, (v) acts of God, perils of the air, public enemies, public authorities, acts or omissions of Customs or quarantine officials, war, riots, strikes, labor disputes, shortages, weather conditions or mechanical delay or failure of vehicles, aircraft or other equipment, or (vi) the acts or omissions of any person other than employees of OGRE-S and then only for its own gross negligence. Notwithstanding anything herein to the contrary, OGRE-S shall not be liable to Customer or any other person for any indirect or consequential damages (such as, but not limited to loss of profits, loss of market, loss of customer goodwill, shutdown, or punitive or exemplary damages). Customer acknowledges that in order to provide competitive rates for the services, that the Parties have agreed as a material term of this Agreement that the burden of any loss or damage incurred as a result of OGRE-S liability has been shifted to the Customer, and that the maximum amount of OGRE-S liability is limited to the fees that OGRE-S has earned with respect to the subject shipment.
10. Insurance. The Customer will look solely to insurance provided by the Carrier for damage to goods in transit. Each Carrier's governing Tariff will determine the standard liability cargo insurance coverage offered on any shipment, subject to any exception value. If the shipment contains freight with a predetermined exception value, as determined by the selected carrier, the maximum exception liability will override the liability coverage otherwise provided by the Tariff. The Customer acknowledges a claim for damages does not relieve it for payment under the terms of this Agreement. Timely payment is a condition precedent to the processing of a damage or insurance claim. All freight cargo claims should be submitted immediately to OGRE-S to help ensure timely resolution. OGRE-S will attempt to assist in the resolution of freight claims, but has no responsibility or liability therefore. Where a damage claim is submitted with carrier on behalf of Customer, OGRE-S has a lien on any amounts recovered to the extent of open past due invoices on the Customer’s account. OGRE-S may have optional Shippers Interest Contingent Cargo Liability Insurance (“Third Party Insurance”) available for purchase by the Customer. OGRE-S has no responsibility or liability with respect to the issuance or denial of Third Party Insurance, or in the payment or denial of claims.
11. Disclaimer of Warranties. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, OGRE-S MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH REGARD TO SHIPMENTS, WAREHOUSED GOODS, ITEMS IN TRANSIT OR DELIVERIES OR WITH REGARD TO THE INFORMATION PROVIDED BY OGRE-S EMPLOYEES OR ON ITS WEBSITE OR SERVICES RELATED TO TRANSACTIONS CONDUCTED ON ITS WEBSITE. OGRE-S CANNOT GUARANTEE DELIVERY BY ANY SPECIFIC TIME OR DATE. IN NO EVENT SHALL OGRE-S BE LIABLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES RELATING TO LOSS OF PROFITS OR INCOME, WHETHER OR NOT SUCH DAMAGES WERE REASONABLY FORESEEABLE.
12. Rates. “Less than Load” Rates (“LTL”) rates are based on the freight class as determined by the National Motor Freight classification (“NMFC”) which are weight based. All quoted or displayed transit times are estimates only and do not include day of pickup. LTL pickup dates are not guaranteed. Truckload (“TL”) rates are based on dock door pickup/dock door delivery and shipper load/consignee unload and are state to state and mileage based. Additional fees may apply for charges including, tractor detention, trailer detention, and driver assistance. OGRE-S will provide documentation for any additional charges upon request. All transportation charges are made pursuant to the NMFC. Customer must tender this load to Carrier at the agreed upon rate, or pay a $250.00 "truck ordered, not used" penalty. Air freight rates are based on the greater of actual or dimensional weight. If an air freight shipment contains oversize freight, additional charges and transit days may apply. Van line rates are driven by state to state/mileage, weight (actual or density) and commodity/product type. Flatbed rates are based on equipment type, state to state/mileage and weight. If a flatbed shipment contains oversize freight, additional charges and transit days may apply. All displayed transit times are estimates only and do not include day of pickup. Pickup dates are not guaranteed.
13. Guaranteed Services. OGRE-S will provide LTL guaranteed services (“Guaranteed Services”) for additional charge, if requested by the Customer. LTL delivery times generally do not begin to run until the day after the pickup of the shipment, except as otherwise noted by the Carrier selected. Guaranteed Service transit times do not include holiday and/or “no service” days as defined by the Carrier. The Customer is liable for all charges related to the shipment. In the event of a Carrier’s failure to comply with the Guaranteed Service requested, the Customer shall have fourteen (14) days from the actual delivery date of shipment to deliver a written claim request to OGRE-S. If OGRE-S does not timely receive a claim request within said fourteen (14) days, the service provided by the LTL carrier will be deemed to have met all Guaranteed Service standards and the claim request will automatically be considered invalid and denied. In the event of the Carrier’s failure to comply with the Guaranteed Service requested and after the Carrier has agreed to liability, OGRE-S will credit the account of the said Customer with such amount awarded by the Carrier. In no event shall OGRE-S be liable nor will any account be credited if the Customer does not use an OGRE-S BOL.
14. Binding Nature of Agreement; Assignment. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective heirs, personal representatives, successors and assigns, except that Customer may assign, delegate or transfer any of its obligations under this Agreement without the prior written consent of OGRE-S.
15. Execution. This Agreement shall become binding upon written acceptance by OGRE-S of Customer’s acknowledgement of its intent to be bound thereby, as evidenced by its designation of acceptance on this Agreement or by its execution of an OGRE-S BOL.
16. Governing Law; Forum; Venue. This Agreement is deemed executed, delivered and performed in the State of Alabama, and the substantive laws of the State of Alabama and Federal law as applied in Alabama. Any action brought to interpret or enforce any provisions of this Agreement, or otherwise relating to or arising from this Agreement, shall be commenced and maintained in the Circuit Court or Federal District Court located in the County of Jefferson in the State of Alabama and each of the Parties consents to jurisdiction and venue in such court for such purposes.
17. Modification and Waiver. No provision of this Agreement shall be amended, waived or modified except by an instrument in writing signed by the Parties hereto.
18. Materiality. All covenants, agreements, representations and warranties made herein shall be deemed to be material and to have been relied on by the Parties in entering into this Agreement and shall survive the execution and delivery of this Agreement.
19. Severability; Integration; Time of the Essence. The inapplicability or unenforceability of any provision of this Agreement shall not limit or impair the operation or validity of any other provision of this Agreement. This Agreement and the documents incorporated into this Agreement by reference, constitutes and embodies the full and complete understanding and agreement of the Parties hereto and supersedes all prior understandings, whether oral or written. Time is of the essence in all matters associated with this Agreement. No representation, promise, inducement or statement of intention has been made by any Party hereto which is not contemplated by or embodied in this Agreement, and no Party hereto shall be bound by or liable for any alleged misrepresentation, promise, inducement or statement of intention not so set forth.
20. Authority. By execution of this Agreement, the signatories hereto represent and warrant their authority to act in the capacity stated. By execution of this Agreement each Party represents and warrants its right, power and authority to enter into and to perform its obligation under this Agreement. This Agreement represents a general letter of authority and appoints OGRE-S to be Customer’s representative in accordance with this Agreement and on its behalf in the use of OGRE-S’ Carriers and/or negotiate new tariffs with Carriers, make contractual changes on tariffs with Carriers, billing changes, document retrieval, routing information, shipment history, proof of deliveries, technical support and pricing on behalf of Customer