Logistics Carrier Services Agreement

Logistics Carrier Services Agreement

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

THIS AGREEMENT TAKES EFFECT WHEN CARRIER INDICATES ACCEPTANCE OF THESE TERMS (“Effective Date”). BY INDICATING ITS ACCEPTANCE OF THE TERMS OF THIS AGREEMENT, CARRIER (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 CARRIER HAS THE LEGAL AUTHORITY TO BIND CARRIER; AND (C) AGREES TO BE 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.

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

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

“Carrier Property” means all property, including any and all vehicles, equipment, and Supplies, of whatever kind or nature, purchased, leased or owned by 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 without limitation 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 Carrier 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 Carrier in violation of this Agreement); (b) was available to Carrier from a source other than Company, provided that such source is not and was not bound by confidentiality obligations regarding Carrier or Company; or (c) has been independently acquired or independently developed by Carrier 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.

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

“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 or 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 Carrier’s engagement in Services.

“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 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 Carrier’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” has the meaning set forth in Section 3.1.

“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 Carrier by Company. Company hereby appoints Carrier to provide, at Carrier’s own risk, cost and expense, certain transportation services (collectively, the “Services”) to Company in connection with the Goods as more specifically set forth herein, and Carrier hereby accepts such appointment.

3.2. 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 Carrier and the Company Affiliate requesting such Services and shall be governed by the terms of this Agreement.

3.3. Carrier-Directed Services. Carrier shall (a) direct the operation of its employees and any subcontractors engaged by Carrier 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 performance of the Services, both under this Agreement and in fact. In every instance, Carrier has the right to decline to perform any or all requested Services requested by Company, provided that once Carrier has agreed to perform any Services it shall be obligated to perform such Services to completion.

3.4. Non-Exclusive Agreement. This is not an exclusive agreement for performance of Services. This Agreement does not guarantee Carrier any type, volume (either in quantity or dollars), duration or location of Services. Carrier is free to provide services to other customers subject to the confidentiality requirements of this Agreement.

4. Scope of Services. Carrier in each instance is free to maintain control and direction of the manner, means, and methods of performance of the Services, consistent with the nature of the Services being provided and subject to any agreed upon deadlines for performance of the Services. This includes Carrier’s right to determine whether to accept any request for Services and the specific routes and times for the performance of the requested Services. Company is interested only in the safe, timely results of such performance. 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 Carrier has the right to accept or reject such suggestions. Carrier, however, understands that Company has and in turn imposes on 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 and that Company has the right to request Services from any one or more carriers.

4.1. Scope for Subhauler Services. If the Services include subhauler services, Carrier shall perform 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 Company, whereby Carrier 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;

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

(g) timely provide copies all required documentation of above activities to Company for review and approval, including a bill of lading (or if applicable a manifest or packing list) (“Delivery Documents”) for the Goods collected and delivered to Company with each consignment of Goods, ensuring that any damage to the Goods or variation in the quantity of Goods delivered from that specified in the order is clearly indicated on Carrier’s Delivery Documents, and present the Delivery Documents for the Goods to Company when the Goods are being unloaded, whereby the Goods shall not be deemed to be delivered to Company until Carrier obtains written confirmation from Company of the delivery of Goods, and Company’s written confirmation is without prejudice to Company’ rights and remedies under the Agreement for any loss or damage to the Goods (“Documentation Requirements”).

4.2. Scope for Drayage Services. If the Services include drayage services, Carrier shall perform 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 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 Company, whereby 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;

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

(j)       timely implement all 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.

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

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

(b) once Company notifies Carrier that 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 shipping;

(c) in the event Carrier observes any leaking fluids in any Container-, Van- or Flatbed-load of Goods, notify Company, but do not transport any load of Goods containing any observed leaking 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.

4.4. Loading/Unloading Goods. If Carrier is responsible for loading or unloading Goods:

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

(b)      Company is entitled to refuse to accept delivery of the Goods if, in the reasonable determination of Company, 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, Carrier shall be responsible for and shall meet (and shall indemnify Company against) the cost of transporting the Goods back to their original location.

4.5. Standards; Service Requirements; No Releases. Carrier 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) 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).

4.6. CSA Scores. Carrier shall 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. Carrier shall monitor its BASIC Scores at least once every three (3) months. Carrier and each motor carrier subcontractor arranged by Carrier for use in performing Services must maintain BASIC Scores rated as at least “Satisfactory” on a rolling three (3) month average during the Term of this Agreement.

4.7. Drivers. With respect to performance of 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, 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 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. Carrier shall execute all applicable authorizations, releases, and agreements with Company, if any, in accordance with CSAT requirements regarding Carrier’s drivers.

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

4.9. Postings; Permits. As applicable, 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. 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 (each, a “Posting”); 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.

4.10. Notice Requirement; Delay. Carrier 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”). 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.

4.11. Cargo Damage or Loss. Unless otherwise provided for herein, Carrier shall have the sole and exclusive care, custody and control of all designated Goods from the time they are delivered to it for transportation until delivery to and discharge at the applicable Intermodal Destination or other applicable destination. Carrier assumes full responsibility for any and all loss or damage to said Goods at a minimum in accordance with 49 USC §14706, while in its care, custody or control. The value of said Goods will be based on the sales price thereof, plus applicable paid freight charges.

4.12. Service Hours. Services performed at the Company Facility shall be during such hours of operation as provided to Carrier by Company.

4.13. Third-Party Arrangements. Carrier is 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.

4.14. Schedule. Carrier shall furnish the necessary vehicles (e.g., trucks and trailers) on a timely basis in order to complete designated deliveries in accordance with this Agreement.

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

5. Fee. In consideration for Carrier providing the Services, Company will pay Carrier its Fee in accordance with the terms of this Agreement.

5.1. Invoice Submittal Period (monthly). Carrier shall provide correct and legible itemized invoices to Company in the calendar month following the calendar month in which Carrier performed such Services. 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 the number of delivery trips, the starting and end point of such trips, and the net weight of each load. Carrier assumes all responsibility for the payment of all applicable federal, state and local taxes related to performance of the Services.

5.2. Invoices. Invoices issued by Carrier 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 applicable, Carrier will invoice Company for any fees payable and 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. Carrier 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 by Company if Carrier issues an invoice in accordance with this Agreement. Carrier will not charge Company for researching, reporting on or correcting any errors relating to Invoices. Carrier will not date Invoices earlier than the date Carrier is entitled to be paid under this Agreement. Carrier must invoice Company within ninety (90) days of the completion of the shipment.

5.3. 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 Carrier 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 Carrier shall use their best efforts to resolve such dispute expeditiously but not more than thirty (30) days after receipt of notice of such disputed Invoice.

5.4. Offset. Any amounts owed by Carrier under this Agreement are subject to recoupment and offset against any other such amounts owed by Company. Company may withhold from any payment to Carrier 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.

5.5. Cancellation. If Carrier commits to a tendered Load and cancels with less than twelve (12) hours’ notice from scheduled pick-up time, Carrier 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 Carrier reasonably in advance of the scheduled date and time of the Services, without incurring or being liable for any fee or other compensation to Carrier.

5.6. 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 Carrier relating to payment for Services but shall in no way relieve Carrier of liability for its obligations and duties that survive termination of this Agreement.

5.7. Shipping Receipts. Carrier shall give 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 Carrier received the Goods (or Van or Container as applicable) in good order and condition unless otherwise noted on the face of the receipt. Carrier also shall obtain signed receipts, upon forms satisfactory to Company, from all Persons to whom deliveries are made, and retain such receipts for at least three (3) years and shall be available at all times for Company’s inspection and use.

5.8. Invoices to be submitted to:

6. Compliance with Laws and Company Policies. Carrier 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. Carrier shall comply 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, and in no event shall Carrier receive any interest in, title to, or ownership of the Goods. Nothing in this Agreement shall be deemed to transfer ownership of or title to the Goods to Carrier.

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

8. Insurance.

8.1. Scope and Amount of Coverage. Without limiting, negating, or reducing Carrier’s obligation to protect, indemnify, hold harmless, reimburse, and defend Company and its Indemnitees, Carrier and each of its subcontractors 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. Carrier agrees that the underwriters, insurers, and insurance carriers of Carrier and each of its subcontractors 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 as an “insured contract” for the performance of Carrier’s indemnity obligations under this 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, Carrier and each of its subcontractors 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 Carrier 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, 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, 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, Carrier’s liability insurance policies shall be endorsed as needed to provide cross liability coverage for Carrier, 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 Carrier under the applicable policies.

8.5. MyCOI. Company utilizes myCOI to track and verify Carrier’s insurance coverage, so that Carrier does not have to spend time requesting, collecting or delivering a COI to Company. Following submission of the Logistics Provider Application, Carrier will receive an email from Certificaterequest@mycoisolution.com. Carrier must follow the instructions contained in the email and complete the online registration. 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 Carrier’s insurance agent(s). Carrier shall not commence providing Services and no payments shall be made to Carrier, unless Carrier is registered with myCOI and a compliant COI has been received with respect to Services provided by 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. Carrier 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 (“Non-Party Person”) in any manner whatsoever any Confidential Information; and (ii) not use any Confidential Information for any purpose other than for the benefit of Company. Carrier shall inform each Carrier Party of the existence, material provisions, and binding nature of this Agreement, and the confidential nature of received Confidential Information and bind each such Carrier Party to its duty to not disclose to any Non-Party Person, or use for any purpose other than for the benefit of Company, such Confidential Information.

9.2. Disclosures Required by Law. Carrier may make disclosures required by court order provided that Carrier 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. Carrier Representations and Warranties. Carrier further represents and warrants to Company that: (a) 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; (b) it 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”)); (c) it 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; (d) there is no Claim pending, or to Carrier’s knowledge, threatened, relating to the Services, or which will have an adverse effect on Carrier’s ability to fulfill its obligations under this Agreement; (e) it publicly advertises its services; (f) it provides its services to Persons other than Company; (g) it understands that the Services are outside of Company’s ordinary business; and (h) it is customarily engaged in an independently established business whose services are of the same nature as the Services.
    
    10.2. Notice of Claims. Carrier shall immediately notify Company if, during the Term, Carrier 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 Carrier Property, 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 Carrier, regardless of the theory or cause of action, exceed the Fees paid to Carrier in the twelve (12) months preceding the Claim giving rise to liability. Carrier 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 Carrier Party while entering or exiting, or engaged in performing Services at, any Company Facility. This Section does not limit Carrier’s indemnity obligation to Company.

11.2. Risk of Loss. Responsibility for and risk of loss associated with any Services shall remain with Carrier at all times. Carrier at all times shall be liable for the acts of its Carrier Representatives as if such acts were its own. Carrier 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, Carrier 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 Carrier; (b) breach or failure to perform any of the covenants or obligations made herein by Carrier (including those imposed by the AB5 Requirements if Carrier is located or provides Services in California); (c) acts, errors, or omissions of Carrier or any other Carrier Party; (d) engagement in Services by any Carrier Party; (e) Release of any Hazardous Materials by any Carrier Party, whether or not Carrier has any knowledge of such Claim; or (f) third parties, including actual or alleged lenders, creditors, collections agencies, factoring businesses, or subcontractors (each, a “Creditor”), or actual or alleged agents or other representatives of such Creditors, seeking payment as an actual or alleged Creditor or on behalf of an actual or alleged Creditor of amounts due to Carrier by Company; whether or not Carrier has any knowledge of such Claim, unless resulting solely from the gross negligence or willful misconduct of Company.

12. Carrier 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 Carrier hereunder, without any notice or demand, except as otherwise expressly specified: (a) Carrier 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 Carrier under any Law relating to bankruptcy, insolvency, or other relief for debtors; (b) Carrier 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 (c) Carrier breaches any of the obligations, covenants or conditions that this Agreement requires Carrier to perform, fulfill, or comply with, and the breach continues for a period of ten (10) business days after written notice by Company to Carrier, or such lesser time if time is of the essence.
    
    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 Carrier 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, CARRIER AGREES THAT IT 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. Carrier will utilize its own employees for the provision of the Services, except as otherwise specifically provided for herein. Carrier will 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 employees, and will comply with all applicable Laws related to employees, employee or subcontractor classification, compensation, benefits, worker health and welfare, and Safety. No Carrier Representative 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 Carrier.
    
    14.2. Independent Contractor Status. Carrier acknowledges that it and its subcontractors, agents, and other representatives (each, a “Carrier Representative”), if any, 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. Company shall not exercise nor have any control whatsoever over the methods or means of the engagement by Carrier in its performance of the Services and shall have no authority to supervise any Carrier Representative.

15. Dispute Resolution Procedures.
    
    15.1. Informal Resolution. If there’s a disagreement related to this Agreement, both the Company and the Carrier 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 exhibits and schedules 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. Each party will be responsible for its own compliance with all applicable Laws concerning the processing, protection or security of personal data (“Data Protection Laws”). Carrier 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, including without limitation failures to obtain consent to collect, store or process personal data or unauthorized disclosures or losses of personal data (e.g., a data breach).
    
18. Assignment; Transfer. Company may assign or otherwise transfer this Agreement, by operation of law or otherwise without Carrier’s consent. Carrier shall not voluntarily, involuntarily, or by operation of Law, without the express, prior written consent of Company: (a) subcontract all or any part of the Services or allow the Services to be performed by anyone other than Carrier or (b) assign or otherwise transfer all or any part of Carrier’s interest in this Agreement. No such assignment or other transfer shall release Carrier 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 Carrier.
    
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 Carrier Contract. Notwithstanding anything to the contrary, bills of lading and other similar documents shall serve solely as a receipt for the shipment.
    
    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. Carrier 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. Carrier is responsible for monitoring this Agreement for any modifications and for reviewing and familiarizing itself with such modifications. Carrier’s provision of Services following posting of modifications shall constitute Carrier’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 without limitation 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.
    
    19.8. 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. CARRIER 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. Carrier will make its books and records as required by Company and this Agreement and related to performance of the Services reasonably available for inspection and copying by Company during normal business hours at the offices of Carrier for purposes of audit and review.

20. Use of Equipment. The provisions of this Section 20 apply only in the event that Carrier uses Equipment.

20.1. Grant of License. Company hereby grants Carrier exclusive use of the Equipment (except for bins, containers, and those items specifically designated by Company for non-exclusive use) and Carrier hereby agrees to such exclusive use of the Equipment, solely for the purpose of engaging in Services (or supplying Goods to Company) in accordance with the terms and conditions of this Agreement (“License To Use”). This License To Use does not preclude Carrier from providing its logistics services to other entities besides Company, except that Carrier may not use Equipment in providing such services.

20.2. Permitted Use. Company has agreed to permit Carrier to use, inspect, maintain, repair and store Equipment, at its own risk, for the sole purpose of engaging in Services or supplying Goods to Company (“Permitted Use”) and Carrier hereby agrees to use such Equipment solely for such Permitted Use. Any other use of all or any Equipment is not authorized by Company and is in material breach of this Agreement and is an Event of Default.

20.3. Restrictions on Permitted Use.

(a) Carrier shall engage in all Permitted Uses in a professional, safe, good, workmanlike, and prudent manner; using properly trained, licensed, and otherwise qualified personnel; in strict compliance with all applicable Laws and Company requirements; in accordance with the highest applicable standards of care, skill, and diligence currently recognized in Carrier’s industry with respect to Permitted Uses; in proper coordination and communication with those involved with performing the Permitted Uses; and at its sole cost and expense.

(b) Carrier shall not engage in any Permitted Uses (a) in any manner or for any business or purpose that (a) violates or may violate any Law, or (b) creates or may create damage or waste or a public nuisance under any Law or that causes damage to the Equipment (each a “Use Restriction”).

(c) Carrier shall be solely responsible for and shall promptly pay all fees, costs, expenses, fines and penalties and the like arising from its breach of any Use Restriction.

(d) With respect to the Equipment and its Permitted Uses, Carrier shall take all measures necessary to provide and maintain a safe working environment and properly protect from any Indemnified Damage (a) all persons (including from risk of injury and danger to health) and (b) real and tangible personal property and equipment, at or in proximity to the Equipment.

(e) Carrier represents and warrants that it has the requisite skill and facilities to properly engage in its Permitted Uses.

20.4. Risk of Loss. Responsibility for and risk of loss associated with any Permitted Use of Equipment shall remain with Carrier.

20.5. Location of Equipment. Unless otherwise specifically agreed by Company in writing, Equipment shall be kept only at a Company Facility or other location designated by Company in writing and shall only be removed with prior written consent of Company and solely for purposes of Carrier engaging in Services or supplying Goods to Company and to locations necessary for Carrier to engage in Services or supply Goods to Company.

20.6. Company Requests. Carrier shall promptly respond to all requests by Company concerning the use of the Equipment.

20.7. Return of Equipment. Company may at any time require that Carrier immediately return to Company any Equipment provided to Carrier in accordance with this Agreement.

20.8. Use Fee. This License To Use Equipment in order to engage in Permitted Uses is provided as partial consideration for Carrier to engage in Services or supply Goods to Company. If Company requires Carrier to pay a fee to use the Equipment to engage in Permitted Uses (“Use Fee”), Carrier and Company shall execute an amendment to this Agreement setting forth the agreed upon Use Fee. For each calendar month in which Carrier uses any Equipment to engage in uses other than Permitted Uses, Carrier shall pay Company a fee of two thousand five hundred dollars ($2,500.00), which the parties agree is a reasonable amount for such use.

20.9. Condition; Title.

(a) Carrier has examined and knows the condition and state of repair of the Equipment to its full satisfaction. Carrier acknowledges that it has found the condition of the Equipment to be in good condition and working order, that Carrier is satisfied with the condition of the Equipment, and that the Equipment is suitable for Permitted Uses.

(b) If the Equipment is not in proper working order on the Commencement Date, Carrier shall notify Company by phone, or by email or in other writing of any claimed deficiency, whereby a phone notice shall be followed with a writing via email or fax. Any such notice shall be provided within twenty-four (24) hours of receipt of the Equipment or Carrier shall be deemed to have waived any such claim.

(c) Carrier agrees to collect and accept the Equipment at the location designated by Company and in the condition in which such Equipment may be on the date on which Carrier collects the Equipment (such date being the “Commencement Date” for each piece of Equipment).

(d) Carrier acknowledges that no representations as to the condition, repair or suitability for any use of the Equipment have been made by Company prior to or at the Commencement Date.

(e) Carrier hereby accepts the Equipment in the condition and state of repair “AS IS, WHERE IS” and “WITH ALL FAULTS,” whether known or unknown, latent or patent, or foreseeable or unforeseeable, and agrees to return the Equipment to Company in the same or better condition as existing at the Commencement Date, reasonable wear and tear excepted, and Carrier hereby fully and forever waives, and Company hereby fully and forever disclaims, all warranties of whatever type or kind with respect to the Equipment, whether express, implied or otherwise including, without limitation, those of fitness for a particular purpose, licensability or use.

(f) Carrier shall maintain the Equipment, including but not limited to any global positioning systems, telematics, cameras, tablets or other tracking devices affixed to the Equipment, in the same condition, configuration and working order as received, subject to reasonable wear and tear, and shall be liable for all costs of maintaining and repairing the Equipment while in Carrier’s care, custody or control including without limitation furnishing any and all parts, mechanisms and devices required to keep the Equipment in such good repair, condition and working order and permitting the manufacturer to make all free-of-charge engineering changes required to keep the Equipment acceptable to the manufacturer for maintenance.

(g) Carrier does not and at no time will acquire hereby any right, title or interest in or to the Equipment except the License To Use granted pursuant to Section 20.1. The Equipment shall at all times be and remain personal property, notwithstanding that all or any part of the Equipment may now be or hereafter become affixed or attached to real property or any building thereon.

20.10. Use, Maintenance & Repair. Carrier shall, at its sole cost and expense, at all times while the Equipment is in its possession, custody or control, and as applicable:

(a) prepare and provide authorized signatures for a daily equipment inspection report (“DEIR”) for the Equipment, if and as required by Company or applicable Law, on a form approved by Company, describing the condition of the Equipment on each day of Carrier’s use of such Equipment, complete and sign each DEIR, and provide the original DEIR each day to the individual designated by Company to receive the DEIR;

(b) promptly notify Company of any required maintenance or repair work (including wear parts), other than ordinary routine maintenance and repairs, providing Company with a description of the defect or failure and location of the Equipment, and not cause or permit any person other than persons authorized by Company to make repairs or adjustments to Equipment, except in event of emergency (whereby Carrier promptly shall notify Company of such emergency), and pay for any and all repairs to the Equipment, regardless of whether or not such repairs resulted solely from reasonable wear and tear to the Equipment; and

(c) not use, or permit the use of, the Equipment to handle or process any Hazardous Materials.

20.11. Outside Maintenance. If, in the sole opinion of Company, Carrier is not properly using or maintaining the Equipment, Company shall have the right and election to have the Equipment further maintained or repaired by Carrier or at a service facility selected by Company, at Carrier’s sole expense.

20.12. Return of Equipment.

(a) Upon conclusion of Carrier’s use of such Equipment for Permitted Uses, termination of the Agreement for any reason or by request of Company at any time, Carrier agrees, at its sole expense, to promptly and without delay return such Equipment to the location(s) designated by Company in the same or better condition as received, reasonable wear and tear excepted.

(b) Any additions to the Equipment that are non-severable improvements shall be removed by Carrier prior to the return of such Equipment or such improvements shall become the sole and absolute property of Company without any payment by Company to Carrier or at Company’s option, and Carrier’s expense, removed and returned to Carrier or sold, destroyed or otherwise disposed of and the Equipment restored to its original condition.

(c) The term “reasonable wear and tear” shall mean only the normal deterioration of the Equipment caused by ordinary and proper use. The following, not intended as an exhaustive list but only by way of example, will not be deemed reasonable wear and tear: damage resulting from lack of lubrication or lack of maintenance; damage resulting from lack of normal daily services or inspections; damage from any collision, overturning or improper operation of Equipment, including without limitation damage in the nature of breakage, bending or tearing of the Equipment or any part thereof; damage to tires caused by puncture, bruise, and abrasion or cut or by wear at a rate in excess of 1/16 inch per month.

(d) If the Equipment is returned in a damaged or excessively dirty or worn condition, Carrier shall pay Company the reasonable costs of restoration.

20.13. License; Markings; Tax Depreciation; No Option to Purchase. This Agreement conveys only a license, and shall not be construed as creating a lease, easement or any other property interest. The parties do not intend hereby to create any estate or interest in personal property, in or on behalf of Carrier. Company is permitted at any time to place or affix any markings on the Equipment it deems necessary or desirable to show ownership of such Equipment. Company alone shall be entitled to claim depreciation and similar deductions on its income tax returns for the Equipment. Under no circumstance does this Agreement provide Carrier any right to purchase Equipment from Company.

20.14. No Liens. The Equipment is and will remain free of any Lien or encumbrance of any kind attributable to Carrier. Carrier shall promptly pay all indebtedness incurred in its performance of all its obligations under this Agreement, with respect to the Equipment and its engagement in any Permitted Uses. If a Lien or charge attaches to the Equipment or if any such Lien shall be filed against Company, by reason of failure by Carrier or Carrier Party to pay any such indebtedness, Carrier, at its sole cost and expense, shall promptly procure the release of such Lien or charge recorded against the same and shall defend, indemnify and hold harmless Company from and against any and all Claims resulting from such Liens.

20.15. Repossession. Even though Carrier is not authorized to remove any Equipment from the Company Facility without Company’s express written consent, at any time, to the extent allowed by Law, Company reserves the right to remove the Equipment from any location. Additionally, in the event of an Event of Default hereunder, or if Carrier ceases doing business as a going concern, or attempts to remove or sell or transfer or encumber or sublet or part with the possession of the Equipment or if Company deems itself insecure, Company or its agents may, without notice, liability or legal process, and without the requirement of posting bond, to the extent allowed by Law, enter into the premises of or under control or jurisdiction of Carrier or any agent of Carrier, where said Equipment is, or is believed to be, located and take all action reasonably necessary to repossess the Equipment, including, without limitation, disconnecting and separating the Equipment from any other property. Carrier hereby expressly waives all further rights to possession of the Equipment and all claims for injury suffered through, or loss caused by such repossession. Carrier shall be liable for and agrees to pay Company all expenses incurred by Company, including attorney and expert fees, and interest at the maximum amount allowed by applicable Law on all rentals payable hereunder, in connection with any action or attempt to enforce the terms of this Agreement or collect sums due thereunder.

20.16. No Assignment. Carrier shall not voluntarily, involuntarily, or by operation of law, without the express prior written consent of Company: (a) sublicense all or any part of the Equipment or allow any Equipment to be used by anyone other than Carrier or (b) encumber all or any part of Carrier’s interest in any Equipment or otherwise use any Equipment as a security device in any manner. No such assignment, sublicense or other transfer (or any other assignment, sublicense or other transfer as may be consented to by Company) shall release Carrier from any of its obligations under this Agreement. Any such sublicense (or any other sublicense as may be consented to by Company) shall at all times be subject and subordinate to this Agreement and shall, at the sole option of Company, terminate at any time at or before the termination of this Agreement, without liability to Company.

Last updated: September 10, 2024