Privacy Policy

Effective Date: July 14, 2025

TERMS AND CONDITIONS FOR BROKER SERVICES

OGRE-S, by and through its affiliates, subsidiaries and parent company (collectively “Broker”) and the customer, consignor, consignee, or any other entity claiming an interest in goods for which Broker arranges transportation (“Customer”) understand and agree that these Terms and Conditions (“Terms”) shall govern property brokerage services which, for purposes hereof, shall mean the arrangement of motor carrier transportation to be performed by Servicing Motor Carriers (as defined below) and shall include arranging/brokering full truckload (“FTL”), less than truckload (“LTL”), international and intermodal (via a combination of motor carrier and rail) transportation (collectively “Transportation Services”). Broker and Customer are sometimes referred to individually as a “Party”, and collectively as the “Parties.”

  1. Tender of Shipments. Customer agrees to tender and/or cause to be tendered on its own behalf and/or as agent for and on behalf of its customer(s) one or more shipments to Broker for the purpose of having Broker arrange for the transportation of the shipment(s) by third party motor carriers selected by Broker (each a “Servicing Motor Carrier”). Customer and Broker agree that these Terms do not restrict Customer from tendering shipments to other property transportation brokers or directly to motor carriers.
  2. Tariffs and Quotes. Broker has obtained, and will obtain, tariffs and quotes from its Servicing Motor Carriers (each a “Tariff” or “Quote”). In the event of a conflict in the terms of this Agreement and an applicable Tariff or Quote then in effect with a selected Servicing Motor Carrier, in every instance the Tariff or Quote shall take precedence and control in the interpretation of the rights and obligations of the Parties. If no conflict exists with respect to the Carrier’s Tariff or Quote, this Agreement shall control.
  3. Bills of Lading. The Customer shall use a bill of lading provided by Broker (“BOL”) for all LTL shipments. Truckload shipments will have a load confirmation sent to the carrier. The Customer shall complete, or cause to be completed, all the appropriate documents required for carriage in light of the services being sought and the pick up or destination requested. In the event the Customer fails to timely and properly complete the appropriate documents, the Customer hereby grants authorization to Broker, where permitted by law, to complete them. Broker may at its option, but without obligation, complete, correct or replace the documents for Customer at the expense of the Customer. If a substitute form of bill of lading is needed to complete delivery of this shipment and Broker completes that document, the terms of the completed bill of lading will govern and Broker will be exonerated from all liability for undertaking such actions on behalf of the Customer. All BOLs are non-negotiable and have been prepared by the Customer, or by Broker on behalf of the Customer in accordance with the Customer’s instructions and approved by the Customer, and shall be deemed, conclusively, to have been prepared by the Customer. The Customer is required to provide the BOL to the Carrier designated by Broker. Any failure to provide the proper BOL to the designated Carrier shall release Broker from any liability. Broker shall have no obligation to make any payments or honor any rate quotes in any of the following instances: (i) the unauthorized alteration or use of bill of lading, or (ii) tendering of shipments to any carrier other than that designated by Broker, or (iii) the use of any bill of lading not authorized or issued by Broker In no event will Broker being shown as the “carrier” on any such document change Broker’s status as a property broker. Customer waives access to Broker’s records pursuant to 49 C.F.R. Part 371.
  4. Customer Representations and Warranties.  Customer represents and warrants that at all times during the term of this Agreement, it will be in compliance with all applicable laws, rules, and regulations including applicable laws relating to customs, import and export required by country to, from, through or over which the shipment may be carried (“Laws”). The Customer agrees to furnish such information and complete and attach to the BOL such documents as are necessary to comply with such Laws. Any individual or entity acting on behalf of the Customer in scheduling shipments or undertaking any other performance hereunder warrants and represents that it has the right to act on behalf of and legally bind the Customer.  Broker assumes no liability for any loss or expense due to the failure of the Customer to comply with this paragraph.
  5. Brokerage Services. For all shipments tendered by Customer to Broker and accepted by Broker in its sole discretion, Broker agrees to arrange for the pick-up, transport, and delivery of the shipments, as Customer may reasonably request, exclusively by Servicing Motor Carrier. In arranging Transportation Services for Customer, Broker shall not be responsible for packaging, handling or loading of shipments, which shall instead be the responsibility of Customer and/or the Servicing Motor Carrier. Every shipment handled by Broker for or on behalf of Customer will be deemed tendered to Broker pursuant to these Terms. Broker has the sole right to select Servicing Motor Carriers. Broker’s sole responsibility with respect to selection and retention of Servicing Motor Carriers is to make reasonable efforts to place Customer’s loads with Servicing Motor Carriers that meet the following criteria: (i) FMCSA Authority. Servicing Motor Carriers shall agree to have and maintain proper and necessary authority from the FMCSA and any applicable state agency to perform Transportation Services in intrastate, interstate and/or foreign commerce; (ii) Safety. Servicing Motor Carrier shall agree to not have either an “unsatisfactory” or unfit safety rating from the U.S. Department of Transportation. Broker may utilize a Servicing Motor Carrier with a FMCSA safety rating or fitness determination of “Conditional” or the equivalent, if the Servicing Motor Carrier has furnished evidence satisfactory to Broker regarding corrective action taken to correct the safety deficiency(ies) which resulted in such rating. Broker shall only select a Servicing Motor Carrier to transport a shipment if it has agreed to perform transportation of the shipment in full compliance with all applicable safety laws and requirements; and (iii) Insurance. Servicing Motor Carriers shall agree to possess all insurance coverages required by applicable law.
  6. Shipment Schedules. Servicing Motor Carriers shall be required to perform pick-up and delivery of all shipments with reasonable dispatch in accordance with reasonable schedules communicated in writing by Customer to Broker and/or Servicing Motor Carriers providing the actual, physical transportation of such shipments.
  7. CARB Compliance. To the extent that a shipment subject to these Terms is transported within the State of California in refrigerated equipment, Broker shall require the Servicing Motor Carrier to agree to only utilize equipment that is in full compliance with the California Ari Resources Board (“CARB”) Transport Refrigerated Unit (“TRU”) Airborne Toxic Control Measure (“ATCM”) in-use regulations.
  8. Performance of Services. Broker will arrange the transport of each shipment tendered to it by Customer promptly upon tender of the shipment by Customer. Broker will provide Customer with prompt notification by telephone or electronic communication when this obligation cannot be met for any reason. Broker will communicate to each Servicing Motor Carrier any schedule for delivery provided by Customer for a particular shipment. Broker will require the Servicing Motor Carrier to agree to perform the actual physical transportation of the shipment, and agree not to “double broker” such transportation to another motor carrier.
  9. Hazardous Materials. If Customer tenders for transportation cargo designated as hazardous materials or dangerous goods, Customer shall be solely responsible for complying with any and all applicable laws, rules, regulations, or conventions with respect to classifying, tendering, packaging, permitting and labeling such cargo and must provide notice of any such cargo at the time a request for services is first initiated by Customer to Broker. 
  10. Independent Contractor. Broker’s relationship to Customer is that of an independent contractor, not an agent or employee, and nothing in these Terms shall be construed as establishing an employment relationship, partnership or joint venture between the parties. Broker shall make arrangements it deems appropriate for the transportation ofshipments tendered by Customer under these Terms, but at no time shall Broker retain a right of control over Servicing Motor Carrier regarding the means and methods of its work. Nor does Customer retain a right of control over the means and methods of Broker’s performance under these Terms.  Customer is not and will not be responsible for any debts or obligations incurred by Broker in the performance of its business. Neither Party to these Terms shall be liable for any obligation incurred by the other, except as is expressly provided in these Terms.
  11. Compliance with Law. Customer shall comply with all laws, rules and regulations of any duly constituted governmental authority applicable to its tendering of shipments for transportation pursuant to these Terms and applicable to Customer’s performance obligations pursuant to these Terms. Customer warrants and represents that it is authorized to tender the cargo in question to Broker and that all descriptions of the cargo are complete, accurate, and include all information required by applicable law, rules or regulation. Broker shall comply with all laws, rules and regulations of any duly constituted governmental authority applicable to its performance of the Transportation Services to be rendered pursuant to the provisions of these Terms.
  12. Indemnification, Warranties, and Limitation of Liability. THE TOTAL LIABILITY OF BROKER WITH RESPECT TO ANY CLAIMS OR DAMAGES ARISING FROM OR RELATED TO SERVICES PROVIDED PURSUANT TO THESE TERMS WILL BE FOR THE AMOUNT CHARGED BY BROKER WITH RESPECT TO THE SERVICES SPECIFICALLY GIVING RISE TO SUCH CLAIMS OR DAMAGES. ACCORDINGLY, CUSTOMER WAIVES THE RIGHT TO ANY PUNITIVE OR CONSEQUENTIAL DAMAGES, AND COMPENSATORY DAMAGES ARE LIMITED, AS STATED HEREIN.  CUSTOMER UNDERSTANDS AND AGREES TO  DEFEND, INDEMNIFY AND HOLD HARMLESS BROKER FROM AND AGAINST ANY AND ALL CLAIMS, DAMAGES, LIABILITIES, FINES, JUDGMENTS, PENALTIES. LIENS AND AMOUNTS (INCLUDING REASONABLE ATTORNEYS’ FEES, COSTS AND EXPENSES) ARISING FROM OR RELATED TO: (i) BREACH BY CUSTOMER OF THESE TERMS; (ii) THE NEGLIGENCE OR OTHER WRONGFUL CONDUCT OF CUSTOMER, ITS AGENTS, CONTRACTORS OR EMPLOYEES; (iii) VIOLATION BY CUSTOMER, ITS AGENTS, CONTRACTORS OR EMPLOYEES OF ANY APPLICABLE LAWS, RULES OR REGULATIONS; (iv) CUSTOMER’S FAILURE TO PROVIDE INSTRUCTIONS OR DIRECTIONS, OR BROKER’S OR THE SERVICING MOTOR CARRIER’S COMPLIANCE WITH OR RELIANCE ON, INSTRUCTIONS, DIRECTIONS, OR REQUEST OF CUSTOMER; (v) THIRD-PARTY CLAIMS AGAINST BROKER RELATING TO THE TRANSPORTATION SERVICES PROVIDED BY BROKER TO CUSTOMER UNDER THESE TERMS; OR (vi) DAMAGES ARISING DUE DO ANY FORCE MAJEURE DESCRIBED IN THESE TERMS  (COLLECTIVELY (i) – (vi) “INDEMNIFIED CLAIMS”). THE FOREGOING NOTWITHSTANDING, CUSTOMER’S OBLIGATION TO HOLD HARMLESS, DEFEND, INDEMNIFY, SHALL NOT APPLY TO THE EXTENT ANY CLAIM OR DAMAGE IS PROVEN IN A COURT OF LAW TO BE THE RESULT OF THE CRIMINAL OR INTENTIONAL MISCONDUCT OF BROKER. 
  13. Disclaimer of Warranties.  EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, BROKER MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH REGARD TO SHIPMENTS, WAREHOUSED GOODS, ITEMS IN TRANSIT OR DELIVERIES OR WITH REGARD TO THE INFORMATION PROVIDED BY BROKER’S EMPLOYEES OR ON ITS WEBSITE OR SERVICES RELATED TO TRANSACTIONS CONDUCTED ON ITS WEBSITE. BROKER CANNOT GUARANTEE DELIVERY BY ANY SPECIFIC TIME OR DATE. IN NO EVENT SHALL BROKER BE LIABLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES RELATING TO LOSS OF PROFITS OR INCOME, WHETHER OR NOT SUCH DAMAGES WERE REASONABLY FORESEEABLE.THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, BROKER IS NOT LIABLE FOR THE CONSEQUENCES OF IDENTIFY THEFT OR FRAUDULENT CONDUCT OF THIRD PARTIES, INCLUDING UTILIZING THE SERVICES OF ENTITIES REPRESENTING THEMSELVES TO BE SERVICING MOTOR CARRIERS OR REPRESENTATIVES THEREOF.
  14. Consent to Telephone Recording, Confirmation of a Transaction, Taping of Transactions. Each Party hereby agrees that the other Party or its agents may electronically record all telephone conversations between officers or employees of the consenting Party and the officers or employees of the other Party who quote on, agree to, or otherwise discuss terms of transactions, potential transactions, or other general business discussions on behalf of the Party. Each Party may, at each Party’s respective expense, maintain equipment necessary to record transactions on audiotapes and/or digital recording media (“Transaction Tapes”) and retain Transaction Tapes and the electronic evidence of transactions on such Transaction Tapes in such manner and for so long as each Party deems necessary in its sole respective discretion, but is not obligated to do so. The Parties hereby consent to the electronic recording of their telephone discussions. Each Party also (i) agrees to obtain any necessary consent of, and give any necessary notice of such recording to, its relevant personnel and (ii) agrees, to the extent permitted by applicable law, that recordings may be submitted as evidence in any proceedings.
  15. Payment to Broker, Credit Terms & Indemnity of Charges. Customer shall pay Broker in US Dollars the agreed compensation for each shipment tendered pursuant to these Terms, without offset, within fifteen (15) days from receipt by Customer of Broker’s invoice. All funds received by Broker will be applied to the invoice for which they are designated. If no invoice is designated then Broker will apply funds to the oldest (based on pick-up date) invoiced bill of lading that is outstanding.  Customer shall also be liable for any expenses, including attorney fees, expenses and costs Broker incurs in collecting its rates and charges.  A $30 NSF fee will be charged for each check returned due to insufficient funds. Past due payments shall be subject to an additional charge at the rate of 1.5% per month of the average outstanding balance due, or the highest interest rate permitted by law, whichever is less.  Customer shall also be responsible for any additional accessorial charges imposed by the Servicing Motor Carrier which were not anticipated by Broker at the time Broker arranged for services with Servicing Motor Carrier or which were not otherwise included in the rate set forth in the load confirmation. IN NO EVENT WILL BROKER HAVE ANY RESPONSIBILITY FOR, AND CUSTOMER SHALL DEFEND, INDEMNITY AND HOLD BROKER HARMLESS FROM ANY TARIFFS OR CHARGES IMPOSED BY THIRD PARTIES WITH RESPECT TO THE USE OF EQUIPMENT IN WHICH CARGO TENDERED BY, TO OR ON BEHALF OF CUSTOMER, IS OR HAS BEEN LADEN, OR FOR CHARGES ASSESSED WITH RESPECT TO STORAGE OR HANDLING OF ANY SUCH EQUIPMENT, INCLUDING, BUT NOT LIMITED TO, CHARGES ASSESSED BY MARINE VESSELS, RAIL CARRIERS, RAIL TERMINAL OPERATORS, MARINE TERMINAL OPERATORS OR PORT AUTHORITIES.  Without limiting the generality of the foregoing, Broker shall have no liability for any such charges arising from or related to Acts of God, port congestion, lack of equipment availability, labor shortages, or other situations impacting port or intermodal transportation operations.
  16. Credit Approval & Fees. Payment terms and credit limits are subject to credit approval, which shall be determined from time to time, in the sole and absolute discretion of Broker. The Customer grants Broker the right to perform such credit and background searches as Broker deems necessary. When paying by credit card or electronic funds, the Customer agrees it will be responsible for all charges due and owing, including any adjustments, on account of such Customer's shipment. The Customer authorizes Broker to charge the Customer's credit card or bank account for any charges.
  17. Insurance. The Customer will look solely to Servicing Motor Carrier or that Servicing Motor Carrier’s insurance for damage to goods in transit. Each Servicing Motor Carrier's governing Tariff will determine the standard liability cargo insurance coverage offered on any shipment, subject to any exception value. If the shipment contains freight with a predetermined exception value, as determined by the selected carrier, the maximum exception liability will override the liability coverage otherwise provided by the Tariff. The Customer acknowledges a claim for damages does not relieve it for payment under the terms of this Agreement. Timely payment is a condition precedent to the processing of a damage or insurance claim. All freight cargo claims should be submitted immediately to Broker to help ensure timely resolution. Broker will attempt to assist in the resolution of freight claims, but has no responsibility or liability therefore. Where a damage claim is submitted with carrier on behalf of Customer, Broker shall have priority setoff rights against any amounts recovered, to the extent of open past due invoices on the Customer’s account. Broker may have optional Shippers Interest Contingent Cargo Liability Insurance (“Third Party Insurance”) available for purchase by the Customer. Broker has no responsibility or liability with respect to the issuance or denial of Third Party Insurance, or in the payment or denial of claims.
  18. Authority.  Each Party represents and warrants its right, power and authority, through agents, to enter into and to perform its obligation under this Agreement. 
  19. Rates. “Less than Load” Rates (“LTL”) rates are based on the freight class as determined by the National Motor Freight classification (“NMFC”) which are weight based. All quoted or displayed transit times are estimates only and do not include day of pickup. LTL pickup dates are not guaranteed. Truckload (“TL”) rates are based on dock door pickup/dock door delivery and shipper load/consignee unload and are state to state and mileage based. Additional fees may apply for charges including, tractor detention, trailer detention, and driver assistance. Broker will provide documentation for any additional charges upon request. For LTL, all transportation charges are made pursuant to the NMFC. Customer must tender this load to Servicing Motor Carrier at the agreed upon rate, or pay a $250.00 "truck ordered, not used" penalty. Air freight rates are based on the greater of actual or dimensional weight. If an air freight shipment contains oversize freight, additional charges and transit days may apply. Van line rates are driven by state to state/mileage, weight (actual or density) and commodity/product type. Flatbed rates are based on equipment type, state to state/mileage and weight. If a flatbed shipment contains oversize freight, additional charges and transit days may apply. All displayed transit times are estimates only and do not include day of pickup. Pickup dates are not guaranteed.
  20. Guaranteed Services. Broker will provide LTL guaranteed services (“Guaranteed Services”) for additional charge, if requested by the Customer. LTL delivery times generally do not begin to run until the day after the pickup of the shipment, except as otherwise noted by the Servicing Motor Carrier selected. Guaranteed Service transit times do not include holiday and/or “no service” days as defined by the Servicing Motor Carrier. The Customer is liable for all charges related to the shipment. In the event of a Servicing Motor Carrier’s failure to comply with the Guaranteed Service requested, the Customer shall have fourteen (14) days from the actual delivery date of shipment to deliver a written claim request to Broker. If Broker does not timely receive a claim request within said fourteen (14) days, the service provided by the LTL carrier will be deemed to have met all Guaranteed Service standards and the claim request will automatically be considered invalid and denied. In the event of the Servicing Motor Carrier’s failure to comply with the Guaranteed Service requested and after the Servicing Motor Carrier has agreed to liability, Broker will credit the account of the said Customer with such amount awarded by the Servicing Motor Carrier. In no event shall Broker be liable nor will any account be credited if the Customer does not use a BOL.
  21. Motor Carriers’ Charges. Broker shall be responsible for the payment of rates and charges to Servicing Motor Carriers engaged by Broker to transport shipments tendered by Customer to Broker pursuant to these Terms. Notwithstanding the foregoing, in the event a Servicing Motor Carrier subcontracts, rebrokers, or double-brokers a shipment to a third-party motor carrier, Broker, in its sole discretion, may pay such third-party motor carrier’s rates and charges, but Broker shall have no liability for such third-party motor carrier(s) rates and charges related to such shipment.  Nor does Broker’s willingness to pay such third-party rates and charges constitute an assumption of liability or a retention of a right of control over that third-party motor carrier.  At all times, Customer’s sole recourse for any cargo loss, damage, delay or shortage is an action against the Servicing Motor Carrier or its insurance carrier, as provided in the Carmack Amendment, 49 U.S.C. § 14706 et seq.  
  22. Cargo Liability.
  1. Liability Limits. The Servicing Motor Carrier (and not Broker) shall have all liability for cargo loss or damage. Customer’s recovery (as opposed to liability) for cargo loss or damage shall  be limited to a maximum of one hundred thousand dollars ($100,000.00) per shipment or per consolidated shipments – unless insurance coverage for increased cargo value has been requested by Customer, and Broker has advised Customer in writing prior to tender of the shipment(s) that it has arranged higher cargo loss or damage coverage. To the extent that multiple shipments or consolidated shipments are tendered by Customer at the same time and at the specific written request of Customer are transported at the same time and in the same vehicle, such multiple shipments or consolidated shipments shall be considered a “single shipment” for the purposes of this section. Notwithstanding the foregoing, Customer acknowledges that Servicing Motor Carriers may limit their liability for cargo loss, damage, or delay. It will be Customer’s responsibility to insure product in-transit, and Customer acknowledges that if Customer wishes to declare excess value higher than the Servicing Motor Carrier’s limitation, Broker will have no responsibility to do so and it will be Customer’s responsibility to do so directly with the Servicing Motor Carrier. Further, Customer acknowledges that Servicing Motor Carrier insurance coverage for LTL shipments is limited to the LTL carrier’s limited liability coverage and will be less than the limits identified above. However, Customer may obtain, by written request to Broker, excess cargo loss or damage insurance coverage through the LTL carrier in excess of the limited amount provided. In no event will Broker have any liability arising from or related to the Servicing Motor Carrier’s refusal to accept full value liability or the Servicing Motor Carrier otherwise limiting its liability for cargo loss and damage.
  2. Processing of Cargo Loss or Damage Claims. In processing of cargo loss or damage claims, the Servicing Motor Carrier shall be contractually required to comply with 49 C.F.R. § 370.1, et seq. and any amendments and/or any other applicable regulations adopted by the U.S. DOT/FMCSA, or any applicable state regulatory agency, for processing loss or damage claims.
  3. Disclaimer of Broker Liability. Broker shall have no liability for cargo loss, damage, delay or shortage.  Customer understands that its exclusive remedy for such damages is an action against the Servicing Motor Carrier or its insurance carrier, as provided in the Carmack Amendment, 49 U.S.C. § 14706 et seq.  Customer warrants and represents that if it is not the owner of such cargo, Customer holds authority from such owner to bind the owner to the provisions of these Terms. 

24. Indirect, Incidental, Consequential, Special or Punitive Damages. Neither Party shall be liable to the other for any indirect, incidental, consequential, special or punitive damages (such as, but not limited to, loss of profits, loss of market, loss of customer goodwill, shutdown, or punitive or exemplary damages) without prior written notification of the risk of loss and its approximate financial amount, and the written agreement of the Party to assume such responsibility.

25. Notice. Any notice and other communication relating to these Terms shall be in writing and be sent to 2429 1st Ave N., Birmingham, AL 35203 Attn: COO: (i) by certified mail, return receipt requested, postage prepaid; (ii) by nationally recognized overnight courier service to the other Party’s principal place of business; or (iii) by email to Broker’s COO (Taylor Stearns – taylor@shipogre.com) with proof of receipt by the intended recipient. All such notices and other communications will be deemed to have been given and received in the case of personal delivery, on the date of such delivery; in the case of e-mail transmission, on the date of transmission if sent on a business day (or if sent on other than a business day, on the next business day after the date sent); in the case of delivery by nationally recognized overnight courier service, on the business day following dispatch if sent by guaranteed next day delivery; or in the case of mailing, on the third business day following such mailing.

26. Force Majeure. If either Party is prevented from performing its obligations under these Terms because of fire, earthquake, flood, explosion, wind, water, strike, lockout, acts of terror, pandemic, or any other Act of God beyond the control of the affected Party, such Party shall immediately give notice of such prevention to the other Party, and shall be excused from the performance of any and all its obligations under these Terms for the duration of such specified circumstances. No liability for any loss, damage or delay with respect to freight shipped or transported shall accrue on account of the occurrence of any damages or losses described in this paragraph. 

27. Non-Disclosure of Information.

A. Broker and Customer agree to keep confidential any information provided by the other Party relating to such Party’s operations or business activities, including, but not limited to: (i) the names of motor carriers, customers, suppliers and vendors, and (ii) freight rates and charges (collectively “Confidential Information”). Each Party agrees to hold all such information in confidence and shall not use any such information other than for the benefit of the other Party or in performance of its obligations under these Terms. Neither Party shall disclose any Confidential Information, except: (i) as may be required by law or regulation; (ii) as is necessary to effect or further the purposes of these Terms; (iii) when such disclosure is between a parent and its subsidiary or corporate affiliate; or (iv) when required in connection with an audit by an accounting or law firm, so long as the disclosing Party is responsible for ensuring compliance with this confidentiality requirement by the audit or law firm.

B. The restriction against disclosure of Confidential Information as specified in this section shall not apply to information which (i) was already known prior to the time it was imparted to the receiving Party by the other Party, (ii) is available or becomes generally available to the public other than through a breach of these Terms by the receiving Party, (iii) is acquired or received by the receiving Party rightfully and without confidential limitation from a third party, or (iv) is independently developed by the receiving Party without breach of these Terms. If either Party becomes legally required to disclose Confidential Information, or any part thereof, that Party will give the other prompt notice of such requirement. If the non-disclosing Party waives compliance with any of the provisions of these Terms or is unable to obtain a protective order or other appropriate remedy with respect to such disclosure of Confidential Information, then the disclosing Party shall disclose only that portion of the Confidential Information necessary to ensure compliance with such legal requirement.

28. Time is of the Essence.  Time is of the essence in the performance of these Terms.  The Parties understand and agree that any delay in the performance of the obligations of these Terms will constitute a material breach of the Terms.

29. Choice of Law.  Except to the extent any mandatory Federal law is applicable to the Transportation Services, these Terms shall be governed by and construed in accordance with the laws of the State of Alabama, without regard to its conflict of law principles.

30. Assignment, No Third Party Beneficiary. Customer shall not assign these Terms or any interest in these Terms, without the prior written consent of Broker.  Subject to the foregoing, these Terms shall inure to the benefit of and be binding on the successors and assigns of Broker. Neither a Servicing Motor Carrier nor any other third party shall be a third party beneficiary to this Agreement between Broker and Customer.

31. Merger & Integration.  No oral or written promise or agreement that is not explicitly stated herein has been made with regard to the subject matter of these Terms; these Terms state the entire agreement between the Parties; these Terms supersede and replace all prior negotiations, proposed agreements, understandings and agreements, whether oral or written; all such prior agreements are merged into these Terms; and these Terms may not be amended in any respect except by a writing duly executed by authorized representatives of the Parties.

32. Headings. Any headings or numbering of paragraphs or sections of these Terms are for organizational convenience only, and all terms and conditions herein are intended to take precedence over any such heading or numbering. If any part, term, paragraph or provision of these Terms is found or declared to be invalid or unenforceable for any reason, the remainder shall remain in full force and effect.

33. Severability.  The provisions of these Terms are severable; that means if any provision is held to be invalid or unenforceable, it shall not affect the validity or enforceability of any other provision.  

34. Waiver. The failure of a Party to object to or take action with respect to any breach of any provision of these Terms by the other Party shall not be construed as a waiver of any rights under these Terms by the non-objecting Party, nor of any claims, past, present or future, for any breach of these Terms.

35. Disputes. Unless preempted by or controlled by federal transportation laws and regulations, these Terms shall be governed by the laws of the State of Alabama, without regard to conflicts of law principles. Any action or proceeding seeking to enforce any provision of, or based upon any right arising out of, these Terms, or the business between the Parties, shall be brought only in the courts of the State of Alabama, Jefferson County, or in the United States District Court located in the Jefferson County of Alabama, and each Party consents to the exclusive jurisdiction of such courts (and the appropriate appellate courts) in any such action and waives any objection to personal jurisdiction or venue in such courts.   Nothing in this paragraph, however, waives the Broker’s protections under the Federal Aviation Administration Authorization Act, 49 U.S.C. § 14501 et seq.  Customer agrees to pay all reasonable expenses, attorneys’ fees and costs (including court costs) relating to any litigation of disputes relating to these Terms or the performance thereof.

36. Compliance by Parties with Food Safety Laws. When Customer engages Broker to arrange transportation of cargo regulated under the Sanitary Transportation of Food Rule at 21 C.F.R. §§ 1.900 through 1.934 (“STF  Rule”), as adopted by the U.S. Food & Drug Administration (“FDA”) under the Food Safety Modernization Act, Pub. L. No. 111-353 (“FSMA”), the duties otherwise assigned to Broker as a “shipper” under the STF Rule are hereby re-allocated under these Terms to Customer and to the Servicing Motor Carriers. Such re-allocation among supply-chain participants by written agreement is permitted by 21 C.F.R. § 1.908(a), subject to applicable recordkeeping requirements under 21 C.F.R. § 1.912(d). By tendering shipments for brokerage by Broker, Customer agrees to the following re-allocations of responsibilities under the STF Rule in accordance with these terms and conditions:

  1. Duties Re-Allocated to Selected Motor Carriers. The duties assigned to Broker as a “shipper” under the STF Rule are delegated to Broker’s selected carrier insofar as they relate to assuring that vehicles and equipment are operated in an appropriate sanitary condition, that temperature controls specified by Customer are maintained during transportation, and that previous cargo movements do not render the equipment unsafe for FSMA-regulated shipments.
  2. Duties Re-Allocated to Customer. All other duties assigned to Broker as a “shipper” under the STF Rule are hereby delegated to Customer under these Terms. These duties include, without limitation, providing written instructions to the Servicing Motor Carrier regarding equipment design and dimensional requirements, adequate preparation (including any required pre-cooling) of equipment presented for loading, and specification of any temperatures required to be maintained during transportation.

Customer agrees that when requesting service with respect to any shipment containing food that is subject to FDA regulations (hereinafter “Food”), Customer shall be solely responsible for identifying handling obligations necessary for the safe and sanitary handling of Food and, at the time of the initial request for services with respect to the individual shipment, will provide written notice (each a “Food Handling Notice”) to Broker that the consignment contains Food which Food Handling Notice must also include any special instructions or handling requirements to be imposed on the Servicing Motor Carrier. Any such Food Handling Notice shall specifically identify the consignment to which it relates and in no event shall any Food Handling Notice apply to more than one shipment regardless of whether Broker confirms receipt of a Food Handling Notice purporting to apply to multiple conveyances. In no event will Broker have any obligation to provide any instructions to the Servicing Motor Carrier with respect to cargo other than providing to the Servicing Motor Carrier the Food Handling Notice prepared by the Customer and Broker has no obligation to comply with or pass on to the Servicing Motor Carrier any handling instructions received after the initial request for service. If Customer does not provide a Food Handling Notice, Customer warrants and represents that the cargo is appropriately packaged to ensure safe and sanitary transportation without the need for any specialized handling by the Servicing Motor Carrier. Customer acknowledges and agrees that Broker’s sole obligation with respect to Food handling and food safety is to pass through to the Servicing Motor Carrier instructions contained in a Food Handling Notice.

The Parties further recognize and agree that the standards prescribed by the STF Rule relate to maintaining the safety and sanitation of Food rather than preserving any particular appearance or market value, and that any suspected departures from such safety and sanitation standards shall be investigated by a “qualified individual” (as per 21 C.F.R. § 1.906(a)(6)) before any determination is made that the Food cargo in question is unsanitary, unsafe or adulterated within the meaning of FSMA.

In order to comply with the recordkeeping requirements of 21 C.F.R. § 1.912(d), both Parties shall retain copies of these Terms in written or electronic form for not less than twelve (12) months after the date on which Customer ceases to tender shipments to Broker hereunder.