7. FREIGHT LOSS, DAMAGE, OR DELAY CARRIER shall have the sole and exclusive care, custody and control of the Customer's property from the time it is delivered by the Consignor to the carrier for transportation until delivery to the consignee accompanied by the appropriate receipts as specified in Paragraph 4. CARRIER assumes the liability of a common carrier for loss, delay, damage to or destruction of any and all of Customer's goods or property while under CARRIER's care, custody or control. CARRIER shall pay to BROKER, or allow BROKER Customer's full actual loss for the kind and quantity of commodities so lost , damaged or destroyed. Broker agrees to work with the carrier's insurance company. For any shipment that misses a delivery appointment by any time greater than one business day, CARRIER shall be responsible for a minimum of 25% of the transportation costs, notwithstanding Force Majeure due to acts of God; weather, fire, earthquakes, tornados, storms, snow, or rain. Shipments that are late due to driver or carrier neglect are subject to penalties that not exceed a value greater than 50% of the shipment or shipment(s) transport costs for the delivery.
a. Non-delivery provisions: “If the consignee refuses a shipment, or CARRIER is unable to deliver it for any reason [or a Customer advises and instructs CARRIER to stop movement of the goods and to hold it in transit], CARRIER'S liability immediately thereafter shall be that of a warehouseman. CARRIER agrees to follow procedures as a warehouseman to use ordinary care to keep the goods in a safe or suitable place or to store the goods properly. CARRIER shall (i) give BROKER notice as soon as possible if the foregoing occurs, and (ii) place the goods in public storage, if available, unless CARRIER receives contrary instructions [from BROKER or a Customer] within forty-eight (48) hours from CARRIER notice. Customer will be responsible for storage costs and reasonable costs CARRIER incurs in acting as a warehouseman. If CARRIER is given timely instructions, CARRIER shall use any commercially reasonable steps to abide with such instructions. Customer will pay CARRIER'S reasonable costs and any additional transportation costs CARRIER incurs in doing so.”
8. WAIVER OF CARRIER'S LIEN CARRIER shall not withhold any goods of the Customer on account of any dispute as to rates or any alleged failure of BROKER to pay charges incurred under this Agreement. CARRIER is relying upon the general credit of BROKER and hereby waives and releases all liens which CARRIER might otherwise have to any goods of BROKER or its Customer in the possession or control of CARRIER.
9. PAYMENTS CARRIER will charge and BROKER will pay for transportation services performed under this Agreement the rates and charges as shown on separate Rate Confirmation Sheets to be signed and agreed to by CARRIER and BROKER before each shipment made under this Agreement. CARRIER represents and warrants that there are no other applicable rates or charges except those established in this Agreement or in any Rate Confirmation Sheet signed by BROKER. Payment by BROKER will be made within thirty (30) days of receipt by BROKER of CARRIER's freight bill, bill of lading, clear delivery receipt, and any other necessary billing documents enabling BROKER to ascertain that service has been provided at the agreed upon charge. CARRIER shall provide signed proof of delivery within fifteen (15) days of delivery for all shipments delivered to consignee.
In the event service is provided and it is subsequently discovered that there was no applicable rate in the existing Schedule of Rates or supplements, the parties agree that the rate paid by BROKER and collected by CARRIER shall be the agreed upon contract rate. CARRIER agrees that BROKER has the exclusive right to handle all billing of freight charges to the Customer for the transportation services provided herein, and, as such, CARRIER agrees to refrain from all collection efforts against the shipper, receiver, consignor, consignee or the Customer. CARRIER further agrees that BROKER has the discretionary right to offset any payments owed to CARRIER hereunder for liability incurred by CARRIER pursuant to Section 8 of this Agreement.