Logistics Broker Services Agreement

This LOGISTICS BROKER SERVICES AGREEMENT (“Agreement”) is a binding contract between Company and Broker. This Agreement governs Broker’s provision of Services to Company.

THIS AGREEMENT TAKES EFFECT WHEN BROKER INDICATES ACCEPTANCE OF THESE TERMS (“Effective Date”). BY INDICATING ACCEPTANCE OF THE TERMS OF THIS AGREEMENT, BROKER (A) ACKNOWLEDGES HAVING READ AND UNDERSTOOD THIS AGREEMENT; (B) REPRESENTS AND WARRANTS THAT IT HAS THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND THAT THE INDIVIDUAL SUBMITTING THE APPLICATION ON BEHALF OF BROKER HAS THE LEGAL AUTHORITY TO BIND BROKER; AND (C) ACCEPTS THIS AGREEMENT AND AGREES THAT BROKER IS LEGALLY BOUND BY ITS TERMS.

1. Definitions. In this Agreement, the following words and expressions have the following meanings unless the context otherwise requires:

“Affiliate” means a Person that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, the Person specified.

“Broker” means the person or entity identified as the Broker on the Logistics Provider Application.

“Broker Fee” means the fee paid to Broker for performance of the Broker Services.

“Broker Party” means Broker, Carriers retained by Broker to provide Services, and any Broker Indemnitee, excluding any Company Party.

“Broker Property” means all property, including any and all vehicles, equipment, and Supplies, of whatever kind or nature, purchased, leased or owned by Broker.

“Broker Services” means those services involving the arranging of the transportation of Goods or other property by properly qualified, certified and trained Carriers.

“Carrier” means those motor carrier transportation service providers retained to provide Carrier Services.

“Carrier Fee” means the fee paid to Carrier for performance of the Carrier Services.

“Carrier Services” means those logistics services related to motor carrier transportation, motor carrier drayage services to and from ports or other intermodal locations, or intermodal carriage (e.g., door-to-door carriage) of Goods over public and private roadways or to or from Intermodal Destinations provided by a Carrier.

“Claim” means any and all actions, claims, demands, deficiencies, assessments, audits, damages, Liens, losses, costs and expenses (including costs and expenses related to any required or necessary repair, or cleanup of any equipment or other real or personal property, or any investigation, defense, settlement, and reasonable attorneys, consultants, and expert witness fees and other reasonable costs and expenses associated with the duty to defend created herein), encumbrances, executions, fines, forfeitures, requirements of any Governmental Entity, investigations, judgments, obligations, orders, penalties, other Proceedings, recoveries, settlements, suits, or other liabilities, of whatever kind or nature, direct or indirect, including those related to Hazardous Materials.

“Company” means Sims Group USA Holdings Corporation or any affiliated entity to which this Agreement is assigned.

“Company Designated Facility” means Company Facility or other facility designated by Company, which may include an Intermodal Destination.

“Company Facility” means a facility owned or operated by Company.

“Company Party” means Company and any Company Indemnitee, excluding any Broker Party.

“Company Property” means all property, including any and all Goods, inventory, rolling stock, vehicles, Equipment and other equipment, and supplies, and other tangible and intangible property, of whatever kind or nature, purchased, leased, controlled or owned by Company and related to this Agreement.

“Confidential Information” means any and all information in whatever form, tangible or intangible, that is not generally known to the public that relates in any way to the Services or Company’s business or Goods, including information pertaining to employees, Suppliers, Customers, prices, costs, any Company Facility, any Customer Facility and any Supplier Facility, whether or not marked as “Confidential Information,” and specifically including this Agreement and any communications related to it. Confidential Information excludes information that (a) at the time of disclosure or thereafter is generally available to and known by the public (other than as a result of its disclosure by Broker in violation of this Agreement); (b) was available to Broker from a source other than Company, provided that such source is not and was not bound by confidentiality obligations regarding Broker or Company; or (c) has been independently acquired or independently developed by Broker without violating any of its obligations under this Agreement.

“Container” means a transmodal shipping container.

“Customer” means a Person who purchases Goods from Company.

“Customer Facility” means a facility operated by a Customer.

“E-Goods” means used, refurbished or recyclable electrical and/or electronic goods or components.

“EHS” means Environment, health and Safety.

“Environment” means the ambient air, surface water, ground water, and soil.

“Environmental Law” means any and all Laws regulating, relating or pertaining to any (a) Safety (including any Laws promulgated by the federal or state-equivalent Occupational Safety & Health Administration), (b) industrial hygiene, (c) pollution, contamination, or impacts to or protection of the Environment, (d) common law theories in law or in equity, including those based on negligence, trespass, intentional tort, nuisance or strict liability, (e) Release of Hazardous Materials, or (f) transportation safety, including any Laws promulgated by the USDOT or FMCSA.

“Equipment” means all equipment owned or leased by Company which may include without limitation vans, trailers, bins and other items.

“FMCSA” means the Federal Motor Carrier Safety Administration.

“Goods” means one or more of the following:

• unprepared Scrap Metal Goods;
• prepared Scrap Metal Goods;
• Non-Metal Goods;
• E-Goods;
• Non-Ferrous Goods;
• Scrap Metal Goods, Non-Metal Goods, Non-Ferrous Goods or E-Goods loaded into Vans or Containers or flatbed trucks ready for delivery;
• Treated auto shredder residue; and
• Equipment designated by Company for shipment from one Company Facility or third-party location to another Company Facility or Intermodal Destination or other third-party location.

“Governmental Entity” means any government or any agency, authority, bureau, board, commission, court, department, official, political subdivision, tribunal, or other instrumentality of any government, whether federal, state, or local, domestic or foreign.

“Hazardous Material” has the broadest meaning provided by any Environmental Law, including any material which is, becomes or is considered to be: (a) regulated as or determined to be or contains a hazardous, dangerous, or toxic material, or pollutant, contaminant or nuisance, (b) a petroleum hydrocarbon, including crude oil or any fraction thereof, other than petroleum and petroleum products which are contained within regularly operated motor vehicles, (c) hazardous, toxic, corrosive, flammable, explosive, infectious, biohazardous waste, medical waste, radioactive, carcinogenic or a reproductive toxicant, (d) asbestos or PCB containing material, or (e) regulated pursuant to any Environmental Law.

“Indemnified Damage” means any (a) death or bodily injury (including sickness, disease, or any emotional or mental distress) to any person, (b) destruction of or damage to any property (including loss of use), or (c) violation of Law.

“Indemnitee” means each and all owners, members, subsidiaries, and Affiliates of any entity, and each of their officers, directors, and employees, and any agent, representative, attorney, consultant, contractor, and subcontractor and any other person or entity claiming by or through any such entity or individual, and every successor and assign of any such entity or individual, and each heir, executor, administrator and spouse of any such individual, except for the other party to this Agreement and any of its Indemnitees.

“Intermodal Destination” means the Company-designated port or rail transmodal location(s).

“Intermodal Destination Receiving Area” means the location within the Intermodal Destination designated by authorized Intermodal Destination personnel for the next stage of intermodal movement (e.g., by rail, truck or waterborne vessel).

“Law” means any and all applicable past, present or future federal, state, or local law or other requirement of any kind, including any and all statutes, regulations, rules, common law, ordinances, resolutions, codes, requirements, authorizations, guidances, interpretations, injunctions, judgments, administrative decisions, orders, decrees, rulings, Permits or similar requirement of any Governmental Entity, including, if applicable, the AB5 Requirements and all Compliance, Safety, Accountability (“CSA”) 2010 requirements.

“Lien” means any and all liens and encumbrances, including all mechanic’s and materialmen’s liens, mechanic’s notices of intention or stop notices, or any other liens resulting from this Agreement or the engagement in Services by Broker or the Carriers it retains.

“Logistics Provider Application” means the Logistics Provider Application Form available at https://www.simsmm.com/freight.

“Non-Ferrous Goods” means debris non-ferrous or Zorba materials.

“Non-Metal Goods” means plastic, paper and glass materials.

“Packaging Guidelines” means Company’s packaging guidelines for Goods, as updated from time to time.

“Permit” means all permits, licenses, consents, approvals or authorizations issued by, and all registrations, applications and filings with, any Governmental Entity (as defined herein), and any applications related thereto, relating in any way to Broker’s or any Carrier’s engagement in any Services, whenever issued or filed.

“Person” means an individual, partnership, corporation or any other legal entity.

“Proceeding” means any action, claim, arbitration, writ, injunction, citation, directive, decree, summons, suit, judgment, order, or legal, administrative, or other proceeding, or investigation by or required by any Governmental Entity pending or, to Broker’s knowledge, threatened.

“Receiving Area” means the area at the Company Designated Facility designated by Company for unloading Goods.

“Release” has the broadest meaning provided by any Environmental Law, including any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, disposing or otherwise releasing into the Environment.

“Safety” means protection of the health, safety, welfare and security of all persons.

“Scrap Metal Goods” means ferrous and non-ferrous scrap metal materials (including scrap vehicles).

“Services” means the Broker Services and Carrier Services unless indicated or context otherwise requires.

“Supplier” means a Person who supplies Goods to Company.

“Supplier Facility” means a facility operated by a Supplier.

“Supplies” means materials, equipment, power, tools, and all other items necessary for performance of the Services.

“USDOT” means the United States Department of Transportation.

2. Term and Termination.

2.1. Term. The term of this Agreement shall commence as of the Effective Date for a period of twelve (12) months unless otherwise terminated in accordance with the terms of this Agreement. Thereafter, this Agreement shall automatically renew for additional, successive twelve-month terms, unless and until terminated in accordance with the terms of this Agreement (collectively, the “Term”).

2.2. Early Termination. In addition to any right to terminate otherwise provided for herein, each party may, without prejudice to any other rights or remedies it may have, without liability and at its sole discretion, terminate this Agreement (a) immediately upon any Event of Default by the other party; or (b) upon thirty (30) days advance written notice for any or no reason.

2.3. Effect of Termination. Upon the termination of this Agreement, all rights and obligations of the parties as to the Services shall immediately cease, and this Agreement will be of no further force and effect, except for and without prejudice to rights, obligations, claims and liabilities which have accrued as of the date of expiration or termination or as otherwise specified in this Agreement, provided that each party will be obligated to make all payments to the other party that such other party is otherwise entitled to, subject to resolution of any bona-fide disputes or allowed offsets (e.g., if related to Fee disputes, claims or audits), through the date of termination.

3. Provision of Services.

3.1. Appointment of Broker by Company. Company hereby appoints Broker to provide, at Broker’s own risk, cost and expense certain Broker Services to Company as more specifically set forth herein and in each order for Services, and Broker hereby accepts such appointment to provide such Broker Services. If Broker provides Carrier Services in addition to Broker Services, provision of such Carrier Services shall be subject to and governed by the terms of the Logistics Carrier Services Agreement (available at http://www.simsmm.com/logistics-carrier-services-agreement).

3.2. Ordering Services. Company will order Services by submitting an order (a) through RateLinx, (b) to the Broker by email, fax, or telephone to Broker’s dispatcher, or (c) by telephone via a Company dispatcher. In each instance the order will specify the Services required, Goods to be transported, together with any special conditions of contract, including additional security requirements.

3.3. Use by Affiliates. Affiliates of the Company may procure Services under this Agreement and each such Affiliate that obtains Services shall be considered the “Company” under this Agreement for the purposes of those Services. Provision of Services to a Company Affiliate shall be considered to be a separate agreement between Broker and the Company Affiliate requesting such Services and shall be governed by the terms of this Agreement.

3.4. Requirements for Carriers. Broker shall ensure and require that each Carrier it retains to provide Services to Company:

(a)      is a fully licensed and certified contractor-hauler or contract or common motor carrier for hire, engaged in the business of providing logistics services related to motor carrier transportation, motor carrier drayage services to and from ports or other intermodal locations, or intermodal carriage (e.g., door-to-door carriage) of Goods over public and private roadways or to or from Intermodal Destinations;

(b)      understands and agrees that logistics services are outside the usual course of Company’s normal business of purchasing, storing, handling, and processing of Goods;

(c)      provides logistics services similar to those Broker retains it to provide to Company to Persons other than Company; and

(d)      publicly advertises its logistics services.

3.5. Broker-Directed Services. Broker shall, and shall ensure and require that each Carrier it retains shall, (a) direct the operation of its employees and any subcontractors it engages in accordance with this Agreement; (b) determine the method, means and manner of performance including choice of routes, points of service and rest stops; and (c) otherwise be free from the control and direction of Company in connection with the method, means and manner of performance, both under this Agreement and in fact. In every instance, Broker has the right to decline any request by Company for Broker Services, provided that once Broker has agreed to perform any Services it shall be obligated to perform such Services to completion.

3.6. Non-Exclusive Agreement. This is not an exclusive agreement for performance of Services. This Agreement does not guarantee either Broker or any Carrier it retains any type, volume (either in quantity or dollars), duration or location of Services. Broker is free to provide services to other customers subject to the confidentiality requirements of this Agreement. Company has the right to request Services from other brokers or carriers.

4. Scope of Services. Broker shall and shall ensure that each Carrier in each instance is free to maintain control and direction of the methods, means and manner of performance. This includes Broker’s or each Carrier’s right to determine routes for truck transportation Services, whether to accept any request for Services, and on which dates and times to agree to perform any requested Services. Broker understands and shall ensure that each Carrier understands that Company may suggest one or another route for engagement in transportation Services, based on prior experience or other pertinent sources of information, but that Broker and each Carrier has the right to accept or reject such suggestions. Broker understands and shall ensure that each Carrier, however, understands that the Company has and in turn imposes on Broker and each Carrier obligations as to the frequency, timing and scope of performance of Services with respect to the pickup, delivery and drop off of Goods from one location to another.

4.1. Scope for Broker Services. Broker shall perform at a minimum the following Broker Services:

(a)      provide logistics services for the Company with respect to arranging pickups and deliveries by Carriers performing, at Broker’s direction, Carrier Services for Company;

(b)      identify and retain appropriate Carriers to perform those Carrier Services requested by Company;

(c)      for Van delivery Carriers, arrange for use of contract carriers whenever possible, but if common carriers are used, review tariffs and ensure such tariff charges are correct;

(d)      timely provide, and ensure and require that each Carrier performing Carrier Services provides, copies of all required documentation of activities to Company for review and approval, including a bill of lading (or if applicable a manifest or packing list) (“Delivery Documents”) for each consignment of Goods collected and delivered to Company or other destination location (“Documentation Requirements”); and

(e)      timely remit all Carrier Fees paid to Broker by Company to the applicable Carrier.

4.2. Scope for Subhauler Services. If the Carrier Services include subhauler services, Broker shall require Carrier to perform, and ensure Carrier performs, at a minimum the following:

(a)      collect and secure the Goods at the Supplier Facility or Company Facility designated for pick-up by Company;

(b)      prior to transporting Goods, inspect load of Goods for presence of Hazardous Materials and fluids (understanding that Supplier may have inadvertently failed to remove certain Hazardous Materials or drain certain fluids from such Goods even though Company requires that the supplier remove such Hazardous Materials and fluids prior to delivery to a Company Facility);

(c)      in the event Carrier suspects or identifies any Hazardous Materials or fluids in any such load of Goods, Carrier shall notify Broker, who shall immediately notify Company, and shall not transport any Goods containing any observed or suspected Hazardous Materials or fluids;

(d)      transport and deliver Goods to the Company Designated Facility in accordance with the agreed-to schedule;

(e)      weigh Goods at the Company-designated scale at the Company Designated Facility; and

(f)       if applicable, unload Goods in the Receiving Area.

4.3. Scope for Drayage Services. If the Carrier Services include drayage services, Broker shall require Carrier to perform, and ensure Carrier performs, at a minimum the following:

(a)      pick up empty Container at the Intermodal Destination and place and secure it on a chassis;

(b)      transport such Container to the Company Facility or other Designated Company Facility and place such Container at the Receiving Area for use either as a “live load” or as a “drop container”;

(c)      subsequently, seal the designated Container when notified by Company or Broker that the Container is loaded with Goods and ready for shipment (“Sealed Container”);

(d)      prior to transporting Goods, inspect Sealed Container for leaks;

(e)      in the event Carrier suspects or identifies any such leaks of fluids in any such Sealed Container, Carrier shall notify Broker, who shall immediately notify Company, and Carrier shall not transport any Goods containing any observed or suspected leaked fluids;

(f)       weigh Containers and Sealed Containers at the Company-designated scale at the Company Designated Facility;

(g)      pickup the Sealed Container, place and secure it on the chassis and deliver it to the Intermodal Destination Receiving Area;

(h)      remove from chassis and place such Sealed Container at the Intermodal Destination Receiving Area;

(j) drop the empty chassis back at location designated either by Company or by Broker (depending on which party the chassis belongs to); and

(k)      to the extent not provided by Broker, timely implement the Documentation Requirements.

To the extent applicable, Services shall be performed from origin points to points served direct by Carrier except where interline (transfer of freight from one carrier to another in the course of shipment) has been authorized by Company in writing.

4.4. Scope for Van, Container, Intermodal or Flatbed Delivery to or from a Company Designated Facility. If the Carrier Services include Van, Container, intermodal or Flatbed delivery services, Broker shall require Carrier to perform, and ensure Carrier performs, at a minimum the following:

(a)      Drop off empty Container, van or flatbed (“Van” and “Flatbed” respectively) at the Company Designated Facility where the Goods to be shipped are located;

(b)      once notified that the Container, Van or Flatbed is loaded with Goods and ready for shipment, collect, inspect (for leaking fluids and other potential issues) and secure and seal the Container, Van or Flatbed for transport;

(c)      in the event Carrier observes or suspects any leaking fluids in any Container-, Van- or Flatbed-load of Goods, Carrier shall notify Broker, who shall immediately notify Company, and Carrier shall not transport any Goods containing any observed or suspected leaked fluids;

(d)      transport and deliver the load of Goods to the Company Designated Facility in accordance with the agreed-to schedule;

(e)      weigh the load (as applicable) at the applicable scale at the receiving Company Designated Facility (or if delivery is to a Company Facility, then weigh the load at the designated Company Facility scale) – but with respect to an intermodal delivery, such weighing may not occur until the load is delivered to the final destination (e.g., for a door-to-door delivery);

(f)       place Container, Van or Flatbed in the Receiving Area for unloading (and, if agreed to, unload Goods from load as designated by Company); and

(g)      timely implement all Documentation Requirements.

4.5. Loading/Unloading Goods. If Carrier Services include loading or unloading Goods, Broker shall require Carrier to perform, and ensure Carrier performs, at a minimum the following:

(a)      where the order specifies that the Goods are to be collected from a third party and delivered to a Company Facility, Broker shall ensure and require that Carrier ensures that the Goods are safely packaged, palletized, or otherwise prepared and loaded for transportation and are safely transported and unloaded all in accordance with the Packaging Guidelines;

(b)      Company is entitled to refuse to accept delivery of the Goods if, in Company’s reasonable determination, the Goods have not been packaged, palletized, or otherwise prepared, and loaded and unloaded safely in accordance with the Packaging Guidelines; and

(c)      if Company refuses to accept delivery of the Goods not conforming to the Packaging Guidelines, Broker shall be responsible for and shall meet (and shall indemnify Company against) the cost of transporting the Goods back to their original location.

4.6. Standards; Service Requirements; No Releases. Broker shall, and shall ensure and require that Carriers shall, perform the Services: (a) in a professional, lawful, safe, efficient, timely and prudent manner, protective of Safety; using its best skill, resources and judgment and represents that it is fully licensed, certified and otherwise qualified to do so; (b) in accordance with all applicable Laws, Company EHS requirements and other requirements (including those pertaining to commercial motor vehicles, driver qualification and other USDOT (and related state) requirements, including 49 CFR §392.9), “no idling” requirements, and the highest applicable standards of care and diligence currently recognized in the industry for persons or entities engaging in such services; (c) in such a manner and at such times so as not to impede or obstruct Company’s operations; (d) in proper coordination and communication with Company, and, as appropriate, applicable accounts and locations; and (e) so as not to cause or permit to occur any Release of Hazardous Materials (e.g., petroleum) (each, a “Service Requirement”).

4.7. CSA Scores. Broker shall ensure and require that Carriers monitor compliance with the FMCSA’s CSA safety program (as amended from time-to-time), and source Services in a manner that promotes the highest standards of public safety. Broker shall monitor each Carrier’s BASIC Scores at least once every three (3) months. Broker and each Carrier providing Carrier Services must maintain BASIC Scores rated as at least “Satisfactory” on a rolling three (3) month average during the Term of this Agreement. Company may, but has no duty to, require Broker to suspend use of a Carrier or remove or replace a Carrier (or assign the load to a different Carrier) if (a) Carrier does not maintain BASIC Scores rated as at least “Satisfactory,” or (b) Company, in its sole discretion, determines that such Carrier is unlikely to be able to perform the Carrier Services to Company’s satisfaction or that such Carrier’s Services or vehicles may breach an EHS Requirement or other obligation of this Agreement. Company has no duty to monitor any Carrier’s BASIC Scores or confirm any Carrier’s compliance with any EHS Requirement or Broker’s compliance with any obligation of this Agreement.

4.8. Drivers. With respect to performance of Carrier Services, insofar as Carrier drivers often are required to interact with Suppliers or Customers of Company and enter, exit and drive through Supplier or Customer Facilities, Broker shall ensure and require that each Carrier shall ensure that each driver: (a) is properly trained, licensed, and otherwise qualified, efficient, responsive, courteous and professional, and (b) performs Services in a professional, lawful, safe, efficient, timely and prudent manner, under Carrier’s exclusive direction and control, including with respect to all Laws, Service Requirements and other requirements pertaining to (i) “drivers” or operators of “motor vehicles” as each term is defined in applicable Law, and (ii) applicable USDOT and other applicable controlled substance and alcohol testing (“CSAT”) requirements (each, a “Driver Requirement”). Broker shall ensure and require that each Carrier shall execute all applicable authorizations, releases, and agreements with Company, if any, in accordance with CSAT requirements regarding Carrier’s drivers. Broker shall ensure and require that each applicable Carrier remove, or not assign, any driver to perform Carrier Services that has not substantially fulfilled each Driver Requirement.

4.9. Vehicles, Supplies & Equipment; Maintenance. Unless otherwise specified in this Agreement, Broker shall ensure and require that each Carrier shall at all times and at its sole cost and expense provide and use its own vehicles and Supplies, as well as its own labor, supervision, power and all other tangible property necessary or useful for performance of the Services, ancillary activities, and compliance with this Agreement, including all necessary spill control and Safety Supplies. Broker shall ensure and require that each Carrier maintains its vehicles and Supplies in good repair, order, and condition, as necessary for the safe, efficient and satisfactory performance of the Services.

4.10. Postings; Permits. As applicable, Broker shall ensure and require that each Carrier shall be a suitable, properly insured Interstate Commerce Commission-certified common or contract or other carrier or state regulated carrier if in intrastate commerce. Broker shall ensure and require that, at Carrier’s sole cost and expense, Carrier shall obtain, post, submit, make, comply with and timely renew (and inspect, maintain and needed repair or replace), all applicable Permits, postings, placards, notices, signs, warnings, disclosures, registrations, emergency and warning lights, and conspicuity tape, as may be required by any applicable Law or other EHS requirements in order to engage in Services and ensure that such Permits have been validly issued and are at all times in full force and effect. Such Permits include those required from the USDOT and FMCSA or the comparable state agency.

4.11. Notice Requirement; Delay. Broker shall provide Company with immediate telephone notice, followed within twenty-four (24) hours by written confirmation and promptly thereafter a detailed written report (each transmitted by email), if Services are related to any (a) delay in the carriage of Company’s freight, (b) overages, shortages or damages of or to the shipments transported hereunder, (c) accident or occurrence resulting in any actual or potential Indemnified Damage, (d) issuance of a notice by any Government Entity or the filing of any Claim regarding any required Permit, (e) “Unsatisfactory” Safety Rating from USDOT, or (f) Release of any Hazardous Materials (each, a “Notice Incident”). Broker shall, and shall ensure and require that each Carrier shall, render all appropriate assistance to Company or its insurer as requested with respect to the investigation, defense, or prosecution of any Claim related to, and mitigation of adverse impacts of, any Notice Incident.

4.12. Cargo Damage or Loss. Unless otherwise provided for herein, Broker shall have, or ensure that the designated Carrier has, sole and exclusive care, custody and control of all designated Goods from the time they are delivered to Broker or Carrier, or collected by Carrier from a Company Designated Facility, until delivery to and discharge at the applicable destination. Broker assumes full responsibility for any and all loss or damage to said Goods, while in its or the Carrier’s care, custody or control. The value of said Goods will be based on the sales price thereof, plus applicable paid freight charges.

4.13. Service Hours. Broker shall ensure, and shall ensure and require that Carriers ensure, that Services performed at the Company Facility shall be during such hours of operation as provided to Broker by Company. Broker shall perform and shall ensure and require that all Carriers perform all other activities necessary for performance of Services, including engaging in appropriate supervision.

4.14. Third-Party Arrangements. Broker is, and shall ensure that Carriers understand that they are, prohibited from negotiating with steamship lines or with Company’s Customers or Suppliers using Company’s service volume in order to obtain discounts, special rates, or waiver of fees without Company’s written consent.

4.15. Schedule. Broker shall furnish, or require that each Carrier furnishes, the necessary vehicles (e.g., trucks and trailers) on a timely basis in order to complete designated deliveries in accordance with this Agreement and within the designated schedule.

4.16. Non-Conformance. Company has no duty to identify any non-conformance with any requirement set out in this Agreement. The obligations of Broker under this Agreement shall survive the expiration or sooner termination of this Agreement for any reason.

5. Fee. In consideration for performance of the Services pursuant to this Agreement, Company will pay Broker the Broker Fee and Carrier Fee in the amounts or at the rates agreed to in advance by the parties in writing for the Broker Services and Carrier Services respectively. Broker acknowledges and agrees that the Broker Fee is the only remuneration that Broker is entitled to receive in exchange for the provision of the Broker Services, regardless of the actual number of hours spent providing such Services or expenses incurred.

5.1. Broker Fee. Unless otherwise agreed by the parties in writing, Company shall pay both the Broker Fee and Carrier Fee to Broker and Broker shall promptly remit the Carrier Fee to Carrier. Once Company has made payment to the Broker for any Broker Services or Carrier Services, Broker shall protect, indemnify, defend, and release, forever discharge and hold free and harmless Company and each Company Indemnitee from and against any and all Claims related to any amounts allegedly owed Broker or any Carrier related to such Services (e.g., failure to pay Carrier). If Broker provides both Broker Services and Carrier Services with respect to the same load, no Broker Fee shall be owed and Company will only pay a Carrier Fee for such load.

5.2. Invoice Submittal Period (monthly). Broker shall provide correct and legible itemized invoices to Company in the calendar month following the calendar month in which the Services were performed. Each invoice (“Invoice”) shall include an itemized description of the Services rendered, setting forth all fees and costs incurred during that period in accordance with this Agreement, and such other information as reasonably requested by Company, which at a minimum should specify each Carrier performing Carrier Services in the month, the number of trips by each Carrier, the starting and end point of such trips, and the net weight of each load. Broker assumes all responsibility for the payment of all applicable federal, state and local taxes related to performance of the Services.

5.3. Invoices. Invoices issued by Broker must clearly identify individual charges as separate line items on each Invoice and reference and use agreed-to line haul rates and fuel surcharges, if any. If requested by Company, Broker will invoice Company for any fees payable and pre-approved expenses via the “RateLinx” transportation management online system, accessed at www.ratelinx.com. Company provides no warranty or representation as to access or availability of RateLinx. Broker understands that RateLinx is not owned or managed by Company and any Invoices unpaid, unsettled or otherwise affected due to the unavailability of the RateLinx website will become payable upon Company’s receipt of an Invoice issued directly to Company in accordance with this Agreement. Broker will not charge Company for researching, reporting on or correcting any errors relating to Invoices. Broker will not date Invoices earlier than the date Broker is entitled to be paid under this Agreement. Broker must invoice Company within ninety (90) days of the completion of the shipment.

5.4. Payment; Disputes. Company shall pay undisputed amounts within thirty (30) days of receipt of a proper Invoice, unless otherwise agreed in writing by Company. Company may withhold payment for Services not conforming to this Agreement with respect to any disputed Invoice or portions thereof, until such dispute has been resolved. Company shall make reasonable efforts to provide Broker with notice of any disputed amounts prior to the due date of such Invoice, provided that failure to pay the entire Invoice shall be deemed notice of a dispute regarding unpaid portions. Company and Broker shall use their best efforts to resolve such dispute expeditiously. Where Company pays only a portion of an Invoice without specifying the items disputed, Broker shall direct such amounts first to the payment of Carrier Fees and then the remainder to payment of Broker Fees.

5.5. Offset. Any amounts owed by Broker under this Agreement are subject to recoupment and offset against any other such amounts owed by Company. Company may withhold from any payment to Broker any amount as may reasonably be necessary to protect Company from existing or anticipated loss or damage or other Claims in accordance with this Agreement.

5.6. Cancellation. If Broker commits to a tendered load and cancels with less than twelve (12) hours’ notice from scheduled pick-up time, Broker shall pay Company liquidated damages (as the parties agree that actual damages are not reasonably ascertainable and the stated amount reasonably approximates the cost to Company) in the amount of two hundred fifty dollars ($250.00), unless a different amount is agreed to in writing by Company. Company reserves the right to withdraw or cancel any order upon written notice to Broker reasonably in advance of the scheduled date and time of the Services, without incurring or being liable for any fee or other compensation to Broker.

5.7. Late Invoices. Invoices received by Company more than one hundred (100) days after completion of a shipment are untimely and Company shall have no obligation to pay such Invoices. Acceptance of final payment following termination of this Agreement will constitute a waiver of all Claims by Broker relating to payment for Services but shall in no way relieve Broker of liability for its obligations and duties that survive termination of this Agreement.

5.8. Shipping Receipts. Broker shall give, or shall ensure and require each Carrier gives, Company, or its designee, a receipt for all Goods received and accepted for transportation under this Agreement. The receipt shall be prima facie evidence that Broker or the applicable Carrier received the Goods (or Van or Container as applicable) in good order and condition unless otherwise noted on the face of the receipt. Broker also shall obtain signed receipts, upon forms satisfactory to Company, from all Persons to whom deliveries are made and provide copies of the same to Company promptly following delivery. Broker shall, and shall ensure and require that Carriers, retain such signed receipts for at least three (3) years and make such receipts available for Company’s inspection and use at all times.

5.9. Invoices to be submitted to:

6. Compliance with Laws and Company Policies. Broker agrees to be bound by and at its own cost comply with all Laws applicable to the Services and Equipment (as applicable) and agrees to implement sufficient systems and controls to ensure compliance with all such Laws. Broker shall comply, and shall ensure that each Carrier complies, at all times with Company’s policies, codes, and procedures located at https://www.simsltd.com/governance/ which are hereby incorporated in their entirety into this Agreement.

7. Property Ownership.

7.1. Ownership of the Goods. Company retains sole title to, and ownership of, all Goods. In no event shall Broker, or any Carrier it retains, receive any interest in, title to, or ownership of the Goods and nothing in this Agreement shall be interpreted as transferring ownership of, interest in or title to the Goods to Broker or any Carrier it retains.

7.2. No Property Transfer. Nothing in this section shall be deemed to transfer ownership of or interest in any Company Property from Company to Broker or any other Person, or any Broker Property from Broker to Company or any other Person. No Goods, inventory, rolling stock, vehicles, equipment, or other property belonging to any other parties other than Broker shall be deemed to be Broker Property.

8. Insurance.

8.1. Scope and Amount of Coverage. Without limiting, negating, or reducing Broker’s obligation to protect, indemnify, hold harmless, reimburse, and defend Company and its Indemnitees, Broker shall, and shall ensure and require that each Carrier and each Carrier subcontractor, shall at its sole cost and at all times in which this Agreement is in effect maintain the following types and minimum amounts of insurance coverage issued by insurers reasonably satisfactory to Company, but at least with underwriter Rated “A, VIII” or better applicable to all Services and Equipment (as applicable), in accordance with Company’s requirements as arranged with myCOI:

8.2. Waiver of Subrogation. Broker agrees, and shall ensure and require that each Carrier agrees, that the underwriters, insurers, and insurance carriers of Broker and each Carrier providing Carrier Services shall not have any right of subrogation (equitable or by assignment, expressed or implied, loan receipt or otherwise) against any Company Insured or its insurers and the right of subrogation is expressly waived.

8.3. Additional CGL Requirements. The Commercial General Liability policy shall contain ISO endorsement number CG 20 26 07 04 (“Additional Insured-Designated Person or Organization”) or its equivalent. The policy shall not contain any intra-insured exclusions as between insured persons or organizations but shall include coverage for liability assumed under this Agreement, and Broker’s agreement with each Carrier (each, a “Carrier Agreement”), as an “insured contract” for the performance of Broker’s and each Carrier’s indemnity obligations under this Agreement and each Carrier Agreement.

8.4. Additional Insureds. Prior to commencement of any Services or use of Equipment (as applicable) and thereafter upon expiration or renewal of coverage, Broker shall, and shall ensure and require that each Carrier providing Carrier Services shall, provide to Company certificates of insurance (“COI”) and endorsements to applicable insurance policies evidencing each of the above-referenced coverages, the waiver of subrogation for each of the above-referenced coverages, and any other coverages required in accordance with this Agreement, and, except for Workers Compensation, naming as additionally insured (each, a “Company Insured”):

Sims Group USA Holdings Corporation, and each of its owners, subsidiaries, and Affiliates, including each Affiliate listed in the Affiliate List provided by Company, and each of their officers, directors, employees and representatives, with respect to the operations of the insured.

Such COIs shall provide that the broker shall give Company at the address set forth below (“Address”) written notice of any change in coverage no later than ten (10) days after such change and shall give immediate notice of cancellation of or lapse in coverage. All renewals of policies carried by Broker and each of its subcontractors shall be delivered to Company at the Address prior to expiration of the existing policy. Such insurance policies and certificates shall state that such insurance shall be primary to any and all other insurance of Company with respect to Services and Equipment (as applicable), and not contributing with and not in excess of coverage that Company may carry.

Each certificate of insurance shall identify the CERTIFICATE HOLDER as: “Sims Group USA Holdings Corporation c/o myCOI, 1075 Broad Ripple Avenue, Suite 313, Indianapolis, IN 46220.”

Upon request by Company, Broker shall, and shall ensure and require that each Carrier shall, provide, or cause its insurer to provide, some or all of the COIs, by filling out one or more template forms provided by Company. Upon request by Company, Broker shall, and shall ensure and require that each Carrier shall, provide, or cause its insurer to provide, a COI that includes any term or condition present within the insurance policy.

Each policy, except for Workers Compensation, shall contain an endorsement naming each Company Insured as additionally insured, and shall provide that the insurance carrier shall have the duty to defend and settle any legal Proceeding filed against Company seeking damages based upon personal injury, bodily injury or property damage liability even if any of the allegations of such legal Proceedings are groundless, false or fraudulent. In addition, Broker’s and each Carrier’s liability insurance policies shall be endorsed as needed to provide cross liability coverage for Broker and each Carrier (respectively), Company, and any other Company Insured and shall provide for severability of interest. Additional insureds shall have the same level and scope of coverage as Broker and each Carrier under the applicable policies.

The insurance requirements in this Section 8 will not apply to Carriers for whom Broker expressly assumes responsibility for meeting such Carrier’s insurance requirements through coverage under Broker’s own insurance policies, provided that Broker notifies Company and Company approves of such arrangement in writing prior to the provision of any Services by such Carrier.

8.5. MyCOI. Company utilizes myCOI to track and verify insurance coverages, to avoid expenditures of time requesting, collecting or delivering a COI to Company. Following submission of the Logistics Provider Application, Broker and each Carrier will receive an email from Certificaterequest@mycoisolution.com. Broker and each Carrier must follow the instructions contained in the email and complete the online registration. Broker and each Carrier must pay an annual fee of seventy dollars ($70.00) for this service, and a debit or credit card will be needed during registration. Upon completion of registration, myCOI will request proof of insurance directly from Broker’s and each Carrier’s respective insurance agent(s). Neither Broker nor any Carrier shall commence providing Services and Company shall not make any payments, unless Broker and each Carrier is registered with myCOI and a compliant COI has been received with respect to Services provided by Broker and each Carrier.

8.6. Other Matters. The parties agree that Company does not incur any liability or other responsibility for or assume any dominion or control over any Services by reason of being named as additionally insured under the insurance set out above.

8.7. Insurance Related Correspondence and Notices. Please send all correspondence and notices with respect to the above insurance requirements to:

Sims Metal

Attn: Steve McCleary

1600 Harvester Road

West Chicago, IL 60185

9. Confidentiality.

9.1. Nondisclosure. Broker agrees, and shall ensure and require that each Carrier it retains agrees, to (i) not disclose to any person not employed by a party hereto and without a need to know for implementation of the Services in any manner whatsoever any Confidential Information; and (ii) not use any Confidential Information for any purpose other than for the benefit of Company. Broker shall inform each Broker Party of the existence, material provisions, and binding nature of this Agreement and the confidential nature of the Confidential Information and bind each such Broker Party to confidentiality obligations no less stringent than those imposed on Broker by this Agreement. Broker shall be responsible for any breach of the confidentiality obligations of this Section 9 by any Broker Party, including those Carriers retained by Broker.

9.2. Disclosures Required by Law. Broker may make disclosures required by court order provided that Broker has promptly notified Company, uses diligent efforts to limit disclosure and to obtain confidential treatment or a protective order and has allowed Company to participate in the Proceeding.

9.3. Injunction. The parties acknowledge that damages from a breach of this Section 9 would be difficult if not impossible to ascertain, and monetary damages alone would be an inadequate remedy. Accordingly, for the Term and a one-year period thereafter, Company will have the right to a court-ordered injunction enjoining any such threatened or actual breach and specific performance with respect to such threatened or actual breach. The existence of this right will not preclude either party from pursuing any other rights and remedies in equity or at law.

10. Representations and Warranties.

10.1. Broker Representations and Warranties. Broker represents and warrants to Company that:

(a)      it is a fully licensed, properly insured and certified motor carrier broker engaged in the business of arranging for and retaining Carriers to provide Carrier Services to those Persons requiring such Services.

(b)      it only retains Brokers who are fully licensed and certified contractor-haulers or contract or common motor carriers for hire, engaged in the business of providing logistics services related to motor carrier transportation, or motor carrier drayage services to and from ports or other intermodal locations, or intermodal carriage (e.g., door-to-door carriage) of Goods over public and private roadways or to or from Intermodal Destinations;

(c)      no consent, approval, or withholding of objection is required from any Person, including any Governmental Entity with respect to the entering into or the performance of this Agreement;

(d)      it, and each Carrier it retains, has complied with and is not in violation of, any Laws potentially affecting the Services (including, if applicable, California Assembly Bill 5 (2019), the California Labor Code (including Sections 2750.3 and 3351) and the California Unemployment Insurance Code (including Sections 606.5 and 621) (each and all the “AB5 Requirements”)) and is properly classified as an independent contractor under those Laws;

(e)      it, and each Carrier it retains, has all Permits necessary to conduct the Services, including as applicable, an “Operating Authority” issued by the USDOT, and all such Permits have been validly issued and are in full force and effect;

(f)       there is no Claim pending, or to Broker’s knowledge, threatened, relating to the Services, or which will have an adverse effect on Broker’s, or any Carrier it retains, ability to fulfill its obligations under this Agreement;

(g)      each Carrier retained to provide Services has a proper & valid MCP number and a current “Satisfactory” safety rating from the SAFER system or such MCP number is “not rated” under the SAFER system.

(h)      it publicly advertises its services;

(i)      it provides its services to Persons other than Company;

(j)       it understands that the Services are outside of Company’s ordinary business; and

(k)       it is customarily engaged in an independently established business whose services are of the same nature as the Services.

10.2. Notice of Claims. Broker shall immediately notify Company if, during the Term, Broker becomes aware of any such actual, pending or threatened Claim.

10.3. Survival of Representations and Warranties. The representations and warranties set forth in this Section 10 are in addition to all other warranties, express, implied, or statutory.

11. Limitation of Liability; Indemnity.

11.1. Loss or Damage; Assumption & Limitation of Liability; Release. Company shall not be liable for any loss of or damage to Broker Property or that of any Carrier it retains, unless caused solely by Company’s gross negligence. In no event shall Company be liable for lost profits or indirect, special, incidental, punitive, or consequential damages, however based in connection with this Agreement or its acts or omissions related thereto. Notwithstanding anything to the contrary in this Agreement, in no event shall Company’s liability to Broker, regardless of the theory or cause of action, exceed the Broker Fees paid to Broker in the twelve (12) months preceding the Claim giving rise to liability. Broker, on behalf of itself and each Broker Party, hereby fully, finally and unconditionally waives, releases, remises, acquits and forever discharges, each Company Party from and for any and all Claims by whomever asserted, accruing or arising during the Term, which relate to any alleged or actual personal injury of any Broker Party while entering or exiting, or engaged in performing Services at, any Company Facility. This Section does not limit Broker’s indemnity obligation to Company. Nothing herein shall be interpreted as limiting or excluding liability for any matter for which liability cannot be limited or excluded by law.

11.2. Risk of Loss. Responsibility for and risk of loss associated with any Services shall remain with Broker at all times. Broker at all times shall be liable for the acts and omissions of Broker Parties as if such acts were its own. Broker shall be solely responsible for and promptly pay all fees, costs, expenses, fines and penalties arising from its breach of any obligations assumed under this Agreement. The value of Goods will be based on the sales price thereof, plus applicable paid freight charges.

11.3. Indemnity. Notwithstanding anything to the contrary in this Agreement, Broker shall protect, indemnify, defend (with counsel reasonably acceptable to Company), reimburse, and release, forever discharge and hold free and harmless Company and each Company Indemnitee from and against any and all Claims imposed on, threatened against, or incurred or sustained by Company or any Company Indemnitee or to which Company or any Company Indemnitee may become subject or pay out, absolute or contingent, in any way, in whole or in part, directly or indirectly, relating to, arising out of, or incurred by any Company Indemnitee from any: (a) inaccuracy or breach of any representation or warranty made herein by Broker, for itself or on behalf of any Carrier or other Broker Party; (b) breach or failure to perform any of the covenants or obligations made herein by Broker, for itself or on behalf of any Carrier or other Broker Party, (including those imposed by the AB5 Requirements if Broker is located or provides Services in California); (c) acts, errors, or omissions of Broker or any other Broker Party; (d) engagement in Services by any Broker Party; (e) failure to pay a Carrier; or (f) Release of any Hazardous Materials by any Broker Party, whether or not Broker has any knowledge of such Claim. For the avoidance of doubt, Broker shall be responsible for any failures or defects in the performance of Services (e.g., failure to deliver Goods) by any Carrier.

12. Broker Default; Company Remedies.

12.1. Events of Default. Any of the following events or conditions shall constitute a material breach of this Agreement and “Event of Default” by Broker hereunder, without any notice or demand, except as otherwise expressly specified: (a) Broker re-brokers or double brokers a load or otherwise permits the Broker Services to be performed by anyone other than Broker; (b) Broker utilizes “load boards,” “freight marketplaces” or similar services to find Carriers to provide Carrier Services for Company; (c) Broker files a voluntary petition in bankruptcy or is adjudicated insolvent or a bankrupt, or files any petition or answer seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution, or similar relief for Broker under any Law relating to bankruptcy, insolvency, or other relief for debtors; (d) Broker seeks or consents to or acquiesces in the appointment of any trustee, receiver, or liquidator of any assets owned by it, or makes any general assignment for the benefit of creditors, or is voluntarily or involuntarily dissolved; or (e) Broker or any Broker Party breaches any of the other obligations, covenants or conditions of this Agreement.

12.2. Remedies. In the event of any Event of Default, in addition to any other rights or remedies provided by law, in equity or under this Agreement, all of which shall be cumulative and not mutually exclusive: Company may, at its sole discretion, exercise any one or more of the following remedies: (a) terminate this Agreement, or (b) in the alternative, continue this Agreement in effect and enforce all of its rights and remedies under this Agreement; whereby if said breach of this Agreement continues, Company may, at any time thereafter, elect to terminate this Agreement, and these provisions will not limit any other rights or remedies which Company may have. Company shall be entitled to all its costs and expenses, including reasonable attorney and expert fees, and interest at the maximum amount allowed by applicable Law from Broker in any Proceeding to enforce any provision of this Agreement or collect sums due thereunder.

13. MECHANIC’S LIENS. TO THE FULLEST EXTENT PERMITTED BY LAW, BROKER AGREES THAT IT, AND SHALL ENSURE THAT EACH CARRIER IT RETAINS, WILL NOT FILE, OR CAUSE TO BE FILED, ANY MECHANIC’S LIEN OR NOTICE, OR NOTICE OF INTENTION TO CLAIM A MECHANIC’S LIEN, OR STOP NOTICE, OR OTHER LIEN WITH REGARD TO OR IN CONNECTION WITH THE SERVICES, AND THE FILING OF SUCH LIEN(S) SHALL, AT THE OPTION OF COMPANY, BE DEEMED A BREACH OF THIS AGREEMENT.

14. Independent Contractor; No Partnership.

14.1. Employees. Broker shall, and shall ensure that each Carrier shall, utilize its own employees for the provision of the Services, except as otherwise specifically provided for herein. Broker and each Carrier it retains shall be solely responsible for all compensation or benefits paid or provided to, and any payroll taxes (including those related to workers compensation and unemployment insurance), or contributions imposed by any Governmental Entity for, its respective employees, and shall comply with all applicable Laws related to employees, employee or subcontractor classification, compensation, benefits, worker health and welfare, and Safety. No Broker Party is eligible for, or entitled to, any benefits that Company makes available to its employees and each forever waives any rights that any of them may have to any benefits Company makes available to its employees. Company shall not be responsible for the direct payment of any withholding taxes, social security, unemployment, or workers compensation payments or taxes, or insurance premiums, or any other fees or charges of any kind or nature on behalf of Broker.

14.2. Independent Contractor Status. Broker acknowledges that it and its subcontractors, agents, and other representatives (each, a “Broker Representative”), if any, and all Carriers it retains are not employees or agents of Company, but rather are independent contractors properly licensed to engage in Services (in accordance with the AB5 Requirements, if applicable). Nothing contained herein shall be construed as constituting or creating any other relationship, including a joint venture, agency, partnership, licensing arrangement or employer-employee relationship.

15. Dispute Resolution Procedures.

15.1. Informal Resolution. If there’s a disagreement related to this Agreement, both the Company and the Broker will each appoint someone to try and resolve the issue in good faith within seven (7) days. These representatives will meet as often as needed to discuss and share relevant information and cooperate to resolve the problem without formal legal proceedings. If unsuccessful, senior management from each party will attempt to resolve it within another seven (7) days.

15.2. Mediation and Arbitration. If senior management is unsuccessful, the parties will submit the dispute to mediation, through the American Arbitration Association (“AAA”) under its then-current mediation rules. The parties will split cost of the mediator equally. If the dispute isn’t settled within twenty-one (21) days after starting mediation, or within any other agreed period, it will be finally resolved by binding arbitration. The AAA will also manage the arbitration under its then-current Commercial Arbitration Rules. A single arbitrator will conduct the arbitration, which will take place in Chicago, Illinois, USA, and be conducted in English. The substantive laws of the State of Illinois, USA, will apply to the arbitration and its proceedings.

16. Construction; Terminology and Interpretation. No provision of this Agreement shall be construed against any single party on the ground that such party drafted the provision. Headings are for convenience only, and neither limit nor amplify the provisions of this Agreement itself. The words “include,” “includes,” and “including,” will, in all cases, be deemed to be followed by the phrase “without limitation,” or words of similar import. The words “hereof,” “herein,” “hereunder,” and similar terms refer to this Agreement as a whole, including any schedules or amendments hereto, and not to any particular provision of this Agreement. The word “or” is not exclusive. All dollar amounts are in U.S. Dollars.

17. Data Processing and Protection. Company and Broker will each be responsible for its own compliance with all applicable Laws concerning the processing, protection or security of data (“Data Protection Laws”). Broker shall indemnify, defend and hold Company harmless from all expenses, liabilities and losses (including attorney, expert, notice and mitigation fees) arising from or relating to violations of Data Protection Laws by any Broker Party, including failures to obtain consent to collect, store or process data or unauthorized disclosures or losses of data (e.g., a data breach).

18. Assignment; Transfer. Company may assign or otherwise transfer this Agreement, by operation of law or otherwise without Broker’s consent. Broker shall not voluntarily, involuntarily, or by operation of Law, without the express, prior written consent of Company, which may be withheld in Company’s sole discretion: (a) subcontract all or any part of the Broker Services or allow the Broker Services to be performed by anyone other than Broker; (b) allow all or any part of the Carrier Services to be performed by anyone other than the Carrier retained by Broker to perform such Carrier Services; or (c) assign or otherwise transfer all or any part of Broker’s interest in this Agreement. Any purported assignment or transfer in violation of this Agreement shall be void. No such assignment or other transfer shall release Broker from any of its obligations under this Agreement. Any consent by Company to an assignment or transfer shall be conditioned on the potential assignee/transferee’s agreement to be bound under this Agreement on the same terms as Broker.

19. Entire Agreement; Other Provisions.

19.1. Entire Agreement. This Agreement (including schedules, if any) constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous communications, representations, understandings or agreements, whether oral or written, with respect to the subject matter hereof and has been induced by no representations, statements, or agreements other than those contained herein.

19.2. Order of Precedence. The terms and conditions of this Agreement shall take precedence, control and apply over and to the exclusion of any conflicting, inconsistent, or contradictory statements contained in any acknowledgment, invoice, purchase order, work order, confirmation or similar document issued by either party regarding any Services (each, a “Contract”), with the order of priority as follows: Agreement, schedules, any Company Contract and any Broker Contract or Carrier Contract. Notwithstanding anything to the contrary, bills of lading and other similar documents shall serve solely as a receipt for the shipment. Any additional terms and conditions in contained in any Broker or Carrier document provided to Company in connection with the Services are hereby rejected.

19.3. Acknowledgement. Each party acknowledges that it knows and understands the contents of this Agreement, has participated in its drafting, has been represented by counsel of its choice (or been provided the opportunity to be so represented) and has executed this Agreement voluntarily.

19.4. Modifications. Broker acknowledges and agrees that Company has the right, in its sole discretion, to modify this Agreement from time to time, and that modified terms become effective on posting. Broker is responsible for monitoring this Agreement for any modifications and for reviewing and familiarizing itself with such modifications. Broker’s provision of Services following posting of modifications shall constitute Broker’s acceptance of such modifications.

19.5. Severability; Waiver. If any provision of this Agreement is found to be invalid or otherwise unenforceable, such invalidity shall not invalidate the entire Agreement, and the validity, legality, and enforceability of the remaining provisions of the Agreement shall not in any way be affected or impaired thereby. No waiver of any term or condition shall be effective, unless set forth in writing and signed by an authorized representative of the party to be bound. Any waiver of or failure to enforce by either party any term or condition of this Agreement will not be construed or deemed to be a waiver of any other term or condition of this Agreement, nor a waiver of any prior or subsequent breach of the same term or condition, unless such waiver is set forth in writing and signed by an authorized representative of the party to be bound. The giving of consent by a party in any one instance will not limit or waive the necessity to obtain such party’s consent in any future instance.

19.6. Survival. All provisions which by their terms or nature expressly or impliedly survive the termination of this Agreement shall survive, including those continuing covenants, obligations and liabilities related to compliance with Law, indemnity, independent contractor status, representation, warranty, certification and insurance.

19.7. Governing Law; Jurisdiction and Venue. This Agreement will be governed by, construed and enforced in accordance with the laws of the State of Illinois, without respect for its conflict of or choice of law provisions or rule that would cause the application of laws of any other jurisdiction. Subject to Section 15, the parties irrevocably submit to the exclusive jurisdiction and venue of the federal or state courts located in Chicago, Illinois to resolve any dispute or Claim arising out of or in any way involving this Agreement or its subject matter or formation (including non-contractual disputes or Claims) and waive any objection to the jurisdiction or venue of such courts including for forum non conveniens.

10.8. Class Action Waiver. THE PARTIES AGREE THAT ALL CLAIMS RELATED IN ANY WAY TO THIS AGREEMENT, THE SERVICES OR THEIR RELATIONSHIP WILL BE DECIDED EXCLUSIVELY ON AN INDIVIDUAL BASIS. BROKER AND COMPANY EACH AGREE AND EXPRESSLY WAIVE ANY RIGHT TO BRING, JOIN, OR PARTICIPATE IN ANY CLASS, COLLECTIVE, REPRESENTATIVE, MULTIPLE PLAINTIFF OR SIMILAR ACTION OR ARBITRATION, INCLUDING WITHOUT LIMITATION PRIVATE ATTORNEY GENERAL OR WHISTLEBLOWER ACTIONS (EVEN IF THE APPLICABLE ARBITRATION RULES WOULD OTHERWISE ALLOW FOR SUCH ACTIONS). The parties also agree not to seek or participate in the consolidation of any action or arbitration with any other action or arbitration without the express written consent of all parties involved in this Agreement and the related actions or arbitrations.

19.9. No Third-Party Beneficiary; Books and Records. This Agreement is solely for the benefit of the parties and their Affiliates, successors and permitted assigns and will not be deemed to confer upon any third party any remedy, claims, liability, reimbursement, claim of action, or other right in addition to those that may exist without regard to this Agreement. Broker will, and shall ensure that any Carrier who provides Services will, make its books and records as required by Company and related to performance of the Services reasonably available for inspection and copying by Company during normal business hours at the offices of Broker, or Carrier, as applicable, for purposes of audit and review.

Last updated: September 10, 2024