Motor Carrier Terms & Conditions
Unless United Natural Foods, Inc. (“UNFI”) and motor carrier (“Carrier”) have executed a written Motor Carrier Agreement, these Motor Carrier Terms & Conditions (“Agreement”) shall apply to all transportation services provided by Carrier where UNFI has the right to select a carrier or where UNFI otherwise does select a carrier regardless of UNFI’s status with respect to any individual shipment (e.g., consignor, consignee, third-party payor). In the event of a conflict between this Agreement and any Motor Carrier Agreemet executed between UNFI and Carrier, the terms of the Motor Carrier Agreement shall prevail. Carrier specifically represents that it holds all regulatory authority to provide the service covered by this Agreement, but for which representation UNFI would not have entered into this Agreement.
Termination. UNFI may terminate this Agreement or any transportation services being provided by Carrier immediately upon written notice in any of the following events:
Carrier loses its operating authority, receives an “unsatisfactory” safety rating from the U.S. Department of Transportation (“DOT”) (or an analogous safety rating from any other governmental agency with jurisdiction over Carrier’s operations), or otherwise becomes disqualified to perform its obligations under this Agreement;
Carrier breaches any covenant, obligation, condition, or requirement imposed upon it by this Agreement;
Carrier fails to comply with the performance metrics, if any, agreed to by the parties;
Carrier utilizes the services of any third-party motor carrier to perform its obligations under this Agreement without prior written consent of UNFI.
Carrier Obligations. Carrier agrees that it has an affirmative duty to promptly notify UNFI of any change in its safety rating, or if one or more of its BASIC scores under the Compliance Safety Accountability (“CSA”) program becoes deficient and falls into “Alert” status.
Tender of Freight. Subject to reasonable equipment availability, Carrier agrees that it shall transport all goods tendered by UNFI. In the event that the shipment at issue has a scheduled pick-up or delivery time, such pick-up or delivery time shall be specified on the relevant Shipment Documentation (as hereinafter defined), or otherwise communicated to Carrier. If, at any point, Carrier believes it will be unable to comply with pick-up or delivery time or date specified by UNFI, it will immediately advise UNFI via telephone or other instantaneous method of communication and specify the time and date by which it estimates it will be able to pick-up or deliver the shipment. In such instances, Carrier will be liable for any late delivery charges imposed by UNFI from time to time. Notwithstanding the foregoing, Carrier acknowledges that UNFI or its customers have specific requirements for delivery by appointment or at specified times due to the nature of their businesses and receiving facilities, and that if a delivery is not made at an appointed time or within a delivery window, UNFI may incur penalties or chargebacks (“late fees”) from its lumper service. In such event, Carrier shall be liable for the following late fees:
Loads that are 31-60 minutes late for the scheduled delivery appointment will be charged a late fee of $53.00.
Loads that are 61 minutes or more late for their delivery appointment will be charged a late fee of $203.00.
Loads that arrive without a delivery appointment, but accepted by the DC will be charged a $303.00 unscheduled fee.
Loads requesting to be rescheduled within 24 hours of their delivery appointment will be charged a $253.00 fee. This also applies to loads that are refused due to late arrival.
Equipment and Personnel.
Commodities to be transported by Carrier pursuant to this Agreement may consist of food products intended for human consumption, unprocessed commodities intended for processing into such food products, and non-food products. As such, UNFI’s cargo regularly requires special handling in order to avoid claims for cargo damage and to ensure the safety of the public. Carrier represents and warrants that it has experience in transporting commodities of the type to be provided by UNFI pursuant to this Agreement.
Carrier agrees to comply with all applicable laws, statutes, rules, regulations, and governmental guidance documents in the performance of its services under this Agreement, including those related to the transportation of food, safe and sanitary storage and transportation of food, pharmaceuticals, hazardous products, and over-dimension and overweight loads, as well as all instructions provided by UNFI regarding transportation of the commodities tendered to it (“Applicable Law”). Carrier has been delegated and agrees to be responsible for all safety obligations under the Food and Drug Administration (“FDA”) rules.
Except with respect to any UNFI-provided trailer and/or container which is sealed prior to arrival of Carrier, Carrier shall be responsible for ensuring that Equipment (as defined in Section 4(d) below) is clean, odor free, dry, leak-proof and free of contamination and infestation and otherwise safe to transport the commodities tendered.
Carrier will, at its sole cost and expense: (i) furnish all equipment, including but not limited to all vehicles, all Transportation Equipment as defined under Applicable Law, power units and any trailers and/or containers used in the performance of this Agreement (regardless of whether such trailers and/or containers are provided by UNFI or by Carrier), which are necessary to service shipments tendered under this Agreement (the “Equipment”); (ii) pay all expenses related to the use or operation of the Equipment; and (iii) maintain Equipment in good repair, mechanical condition and appearance. Carrier shall ensure that no Equipment has been used to transport poison, refuse, garbage, trash or solid or liquid waste of any kind whatsoever, whether hazardous or non-hazardous. Carrier is responsible for ensuring that Equipment is clean and washed out regularly, ensuring that it is of the highest sanitary standards, to include being washed at least once every two weeks.
Carrier shall have full control over its personnel and provide all services as an independent contractor and assume complete responsibility for all state and federal taxes, assessments, insurance (including, but not limited to, workers’ compensation, unemployment compensation, disability, pension and social security insurance) and any other financial obligations arising out of the transportation services rendered pursuant to this Agreement. Carrier shall also be solely responsible for the acts or omissions of any subcontractor used by it in providing services pursuant to this Agreement.
Carrier shall be responsible for the safety and sufficiency of all items used in the transportation of the goods, including all Equipment. Carrier is responsible for all sanitary conditions during transport. Carrier must review and comply with all UNFI instructions, and confirm the Equipment is in appropriate physical condition to transport the goods tendered, including but not limited to free from pest infestation and evidence of prior cargo that could render the shipment unsafe. In addition, if UNFI’s instructions include refrigeration, Carrier must verify that the refrigerated area is prepared for safe transport of the goods, including but not limited to pre-cooling. If UNFI’s instructions require a cargo seal, the lack of a seal shall be sufficient to consider the shipment unsafe and a total loss. Carrier must provide temperature data, in a form acceptable to UNFI for each shipment to UNFI and receiver, upon request. Carrier shall apply all UNFI instructions to future loads of the same commodity tendered by UNFI, unless instructed otherwise in writing.
To the extent Carrier received contradictory or confusing instructions regarding any shipment, Carrier must resolve the contradictory or confusing instructions prior to accepting the shipment for transport. Failure to resolve any issue with the instructions prior to transport shall bar Carrier from using the contradictory or confusing instructions as a defense.
Carrier acknowledges and understands failure to comply with the provisions set forth herein or any other UNFI instructions may result in a determination by UNFI, in its sole reasonable discretion, that the goods transported are no longer safe.
Carrier shall develop and maintain written procedures related to the safe transport of UNFI’s goods, Carrier shall train its drivers and staff regarding safe transport of UNFI’s goods, shall keep records of its procedures and training, and shall make these records available to UNFI upon request for at least three years after services are last provided by Carrier to UNFI under this Agreement. Carrier shall maintain records of its cleaning, sanitizing, and inspecting of Equipment (including Vehicles and Transportation Equipment, as defined under Applicable Law), and shall make these records available to UNFI upon request for at least three years after the record is created.
Carrier shall utilize in the operation of Equipment only fully qualified, properly trained and licensed personnel and shall comply with all Applicable Law governing its employment or other engagement of such personnel.
Carrier shall only assign to UNFI’s account personnel with experience handling commodities of a type similar to those tendered by UNFI. In the event that claims for loss or damage are, in UNFI’s discretion, prevalent with personnel utilized by Carrier for services provided hereunder, UNFI may request in writing that such personnel not handle freight tendered by UNFI and Carrier shall remove any such personnel from handling freight tendered by UNFI. UNFI shall not be responsible for any act or any failure to act of the personnel utilized by Carrier in the performance of Carrier’s services.
Except with respect to trailers owned or leased by UNFI, for which UNFI shall bear the costs of reasonable wear and tear, Carrier shall bear the full cost and expense of all fuel (including reefer fuel if any), oil, tires, parts, road service, maintenance, and repair in connection with the use and operation of the Equipment and which may be required to keep the Equipment in good repair, good mechanical condition, and in such condition as is necessary to be used in the transportation of shipments subject to this Agreement.
Carrier shall be solely responsible for compliance with all provisions of Applicable Law regarding air quality and environmental standards including, but not limited to, those of the California Air Resources Board (“CARB”). By entering into this Agreement, Carrier acknowledges and agrees that it is aware of applicable CARB regulations, including the Truck and Bus Regulation at 13 C.C.R. § 2025, the Drayage Truck Regulation at 13 C.C.R. § 2027, the regulation on Transportation Refrigeration Units (“TRU”) at 13 C.C.R. § 2477 et seq., and the Tractor Trailer Greenhouse Gas regulation at 17 C.C.R. § 95300 et seq., and has adopted policies and procedures to ensure compliance with such regulations, as they may be revised, adopted, and amended from time to time. Carrier shall only dispatch and operate compliant vehicles (including vehicles with compliant TRUs) and shall maintain shipment specific records evidencing such compliance, which records shall be provided to UNFI upon request. Without limiting the foregoing, if Carrier operates TRUs in California under this Agreement, it shall ensure all such units are registered with the CARB’s Equipment Registration system.
Independent Contractor Status of Parties. In the performance of services hereunder, the relationship of each party to the other shall be that of independent contractor. Nothing in this Agreement shall be construed as establishing an employment, agency, partnership or joint venture relationship between the parties. Under no circumstances may an employee, officer, agent, or contractor of Carrier be considered an employee, officer, agent or contractor of UNFI. Except as set forth herein, Carrier shall have the exclusive control over the manner in which Carrier performs the services provided hereunder. Neither party shall be responsible for any debts or obligations incurred by the other in performance of its business activities, except as expressly provided herein.
Shipment Documentation. Each shipment subject to this Agreement shall be evidenced by a bill of lading (“BOL”) or other receipt or proof of delivery in a form acceptable to UNFI (such documentation to be referred to generally as “Shipment Documentation”). The Shipment Documentation shall act as a receipt only and no terms or provisions thereof which conflict with or which address matters not addressed herein shall apply to any shipment hereunder. The execution of the Shipment Documentation will take place at the time Carrier takes possession of the shipment. The provisions of this section shall be applicable to all shipments hereunder, irrespective of whether Shipment Documentation is executed for any individual shipment; provided, however, that if an actual BOL is not executed, then Carrier shall, upon tender of a shipment to it by UNFI or by a third party, give UNFI or said third party a written receipt thereof.
Loss, Damage, and Delay.
Carrier agrees to transport UNFI’s goods safely, efficiently, and according to the instructions of UNFI. Carrier shall be liable to UNFI for all freight loss, damage, and delay to the goods tendered to Carrier or transported by it, as if a common carrier under the Carmack Amendment (as currently codified at 49 U.S.C. § 14706 and as amended from time to time) regardless of whether such loss, damage, or delay occurs in transit or while such goods are being stored by Carrier awaiting delivery and regardless of whether a different standard would otherwise apply in the absence of this Agreement. The measure of the loss, damage or injury shall be the invoice value of the kind and quantity of the freight so lost, damaged or destroyed.
Carrier understands that Applicable Law prohibits sale of food products when the product may have been rendered injurious to health, and failure to comply with the provisions set forth herein or any UNFI instructions may result in a determination by UNFI, in its sole discretion, that the goods transported are no longer safe. If such a determination is made, under Applicable Law, Carrier shall not sell or otherwise distribute the goods and shall dispose of the same at its expense. Any goods disposed of shall be considered a total loss and valueless for determining cargo loss and damage liability of Carrier.
No limitation of liability will apply to any transportation performed to goods tendered to Carrier or transported by it under this Agreement, regardless of whether otherwise applicable law would permit such limitation, unless such limitation is agreed to in writing by UNFI. Notwithstanding anything to the contrary, no limitation of liability shall apply in the event Carrier failed to timely and fully follow UNFI’s instructions with respect to such lost, damaged, or delayed goods, in which case UNFI will be entitled to recover the full invoice value of such goods. Carrier’s liability for loss, damage, or delay of goods to which this Agreement applies, including but not limited to claims arising during transport or storage, is governed solely by this section.
Carrier further agrees to the following provisions with respect to liability for goods pursuant to this section:
With respect to shipments subject to the seal requirements of this Agreement, where the underlying Shipment Documentation contains a clear seal record at origin, and regardless of whether the shipment bears a “UNFI Load and Count”, “SLC”, or similar designation:
If any such shipment arrives at destination: 1) with a broken seal; 2) with evidence of tampering suggesting the shipment, or any goods therein, was accessed by unauthorized persons or otherwise subjected to contamination, infestation, or other sources with the potential to render the shipment, or any goods there in, injurious to health, the typical burden of proof imposed by the Carmack Amendment, pursuant to Section 7(a), shall not apply and instead UNFI, in its sole discretion, may determine that the shipment, or any goods therein, may have been rendered injurious to health and may reject the entire shipment or any portion thereof.
The foregoing subsection shall not apply to those situations where the original seal was broken by law enforcement personnel or at the written instruction of UNFI (including but not limited to after each scheduled less-than-truckload delivery or pick-up, pursuant to Section 17 of this Agreement) if, after the initial seal is broken, Carrier complies with its obligations hereunder with respect to documentation and resealing as set forth elsewhere herein, as long as there is no additional evidence with respect to the shipment, or any goods therein, which would allow UNFI to invoke the foregoing subsection.
Where there is evidence that a shipment was subjected to inappropriate temperatures, UNFI, in its sole discretion, may determine that the shipment, or any goods therein, may have been rendered injurious to health and may reject the entire shipment or any portion thereof.
Carrier agrees to refrain from salvaging any goods subject to this Agreement absent the express written consent of UNFI, which consent may be granted or withheld in the sole discretion of UNFI, and Carrier hereby waives all claims for damage arising from UNFI’s refusal to grant such permission.
With respect to loss or damage of sealed shipments caused by improper loading, in those instances where the Shipment Documentation indicates that the shipment was loaded and sealed by UNFI or the consignor prior to arrival of Carrier or its personnel (e.g., where the Shipment Documentation bears a “UNFI Load and Count”, “SLC”, or similar designation), and where UNFI did in fact load and seal the shipment prior to arrival of Carrier personnel, Carrier shall not be responsible for loss, damage, or delay caused solely by improper loading if Carrier was also free from negligence or other fault for such damage. Carrier shall bear the burden of proving that the loss was caused solely by improper loading and shall bear the initial burden of proving that it was free from negligence.
UNFI shall have nine (9) months from the date of delivery (or nine (9) months from the date delivery should have been made in the event delivery is not made) in which to file a claim against Carrier for loss, damage, or delay. In the event of denial of all or part of any such claim, Shipper shall have two (2) years from the date of denial in which to file suit seeking payment of the claim in a court of competent jurisdiction.
In the event Carrier learns of any loss of or damage to goods transported pursuant to this Agreement, regardless of whether the goods have been shipped with freight pre-paid or collect, Carrier shall immediately communicate to UNFI the circumstances of such loss or damage and UNFI and Carrier shall each take such steps as may be reasonable under the circumstances to mitigate the loss or damage.
Indemnity. Carrier shall defend, indemnify, and hold UNFI, including its affiliates, subsidiaries, shareholders, officers, directors, employees, and agents (collectively for purposes of this indemnification section, “UNFI Parties”) harmless from and against all loss, liability, damage, claim, fine, cost or expense, including reasonable attorney's fees and court costs, arising out of or in any way related to allegations concerning the performance or breach of this Agreement by Carrier, its employees, agents, and/or independent contractors (collectively, the “Claims”), including, but not limited to, Claims arising from, caused by, or pertaining to: personal injury (including death) or property damage; Carrier’s possession, use, maintenance, custody or operation of the Equipment; employment status of Carrier’s employees, agents, and/or independent contractor, (including claims by governmental agencies for unemployment, income or other taxes or workers’ compensation); provided, however, that Carrier’s indemnification and hold harmless obligations under this section will not apply to the extent Claims are caused by UNFI the UNFI Parties’ willful misconduct or gross negligence. Further, Carrier agrees to indemnify, defend, and hold harmless the UNFI Parties in the event any employee, agent, or independent contractor of Carrier: (i) makes any claim against the UNFI Parties arising from or releated to the failure or alleged failure of Carrier to maintain workers’ compensation coverage on his/her behalf or provide benefits in accordance with any Applicable Law; and/or (ii) is injured in the performance of his/her work and seeks remedies against the UNFI Parties in lieu of or in addition to his/her remedies under Carrier’s workers’ compensation policy. The obligations of this section shall survive termination of this Agreement.
Rates. The rates and charges for shipments transported under this Agreement shall be the agreed-upon rate of the parties for the services provided, unless such rate is objected to by Carrier within ten (10) days of the invoice date. The parties acknowledge that loading/unloading services may or may not be required for certain shipments made pursuant to this Agreement. In instances where another party (e.g., the supplier) does not bear the cost of any loading/unloading services which may be required or performed by Carrier or a third-party lumper service utilized by Carrier, Carrier acknowledges and agrees the rates and charges agreed-upon by the parties include payment for such costs. Under no circumstances shall any rate or provision contained in Carrier’s bill of lading, tariff, or other form of pre-printed rate schedule apply to any shipment unless otherwise agreed to by the parties.
Payment.
UNFI may advise Carrier (by use of a BOL issued by UNFI) that any particular shipment is to be freight collect. Carrier agrees that UNFI shall have no liability for freight charges on prepaid shipments inbound to UNFI, and that Carrier shall make no attempt to collect freight charges from UNFI on such shipments. With respect to outbound services, Carrier agrees that any consignee or receiver of shipments shall have no liability for freight charges, and that Carrier shall make no attempt to collect freight charges from such consignee or receiver on such shipments.
With respect to undisputed freight charges, unless otherwise agreed in writing, UNFI, or a third-party payor designated by UNFI, shall pay Carrier within thirty (30) days after receipt of a freight bill and proof of delivery, or the date Carrier submits the proper proof of delivery as required by this provision, whichever is later (collectively referred to in this section as “receipt”). Carrier may choose to receive payment within (a) fifteen (15) days after receipt in exchange for providing UNFI with a one percent (1%) discount of the total freight charges; or (b) within ten (10) days of receipt in exchange for providing UNFI a two percent (2%) discount. UNFI may deduct from any payment owed to Carrier any amount Carrier is indebted to UNFI, including freight loss, damage, or delay claims. Payment to Carrier shall not preclude UNFI from subsequently disputing the amount of any charges, or loss or damage to any shipment. Carrier agrees that UNFI is not liable for any charges if the receipt by UNFI is greater than 120 days from Carrier’s delivery of goods associated with the billing. This rule applies to individual charges regardless of whether Carrier bills UNFI for part of the services related to the shipment within the 120 day period.
Use of Third Parties. Unless otherwise given written permission by UNFI, Carrier agrees that under no circumstances shall it broker, interchange or subcontract a load (other than use of Carrier’s leased owner-operators, if any, performing services under Carrier’s operating authority and insurance) provided by UNFI to any other motor contract carrier, railroad, or other transportation-related company. Carrier agrees and understands that UNFI’s consent for Carrier to tender a load or loads to a third party shall in no way relieve Carrier of its obligation to obtain UNFI’s written consent to tender any other shipment to a third party. In the event Carrier brokers a shipment to a third party, regardless of whether Carrier obtained UNFI’s consent, Carrier will be liable to UNFI as if it moved the shipment, and shall continue to have the obligation to indemnify UNFI pursuant to the provisions of this Agreement. Where UNFI gives written permission for such third party to move UNFI’s freight, Carrier shall ensure that the third party meets the same requirements as set forth in this Agreement, including, but not limited to, insurance coverage, and shall be liable to UNFI as if Carrier itself had moved the shipment. Unless otherwise specified in writing, and so long as there are agreed-upon delivery rates for the specified consignee location(s), Carrier agrees that any and all costs incurred through the use of a third party shall be fully borne by Carrier. Any compensation requested by Carrier or paid by UNFI to Carrier shall be consistent with the agreed-upon rates for delivery to the consignee location(s) as if Carrier itself had moved the shipment.
Waiver of Lien. Carrier hereby expressly waives its right to any lien on cargo transported pursuant to this Agreement under any Applicable Law.
Undercharge/Overcharge Claims. As a condition precedent to recovery, undercharge/overcharge claims by UNFI or Carrier must be presented to the other party within 270 days after the BOL date. Claims by Carrier that it was paid less than was warranted based on the rate specified herein and the total weight transported must be submitted in writing to UNFI. UNFI shall pursue the recovery of overpayments via form claims filing or by documented adjustments to the ongoing payments stream. In the case of a UNFI adjustment, UNFI will provide Carrier with a monthly report detailing all adjustments made against its account. Where a claim is not submitted in accordance with this section, neither party shall be liable and such claims shall not be paid.
Operating Authority and Compliance with Laws. All shipments and goods tendered to Carrier by UNFI on or after the date of this Agreement shall be deemed to be a tender to Carrier as a motor contract carrier and shall be subject only to the terms of this Agreement and provisions of law applicable to motor contract carriage hereunder. Carrier represents and warrants that it has all required authorities, licenses, and permits required to perform all interstate, intrastate, inter-provincial, intra-provincial, and/or international movements that Carrier accepts for transportation, and upon request shall furnish proof of same to UNFI. Carrier further represents and warrants that it has not been issued an unsatisfactory safety rating issued form the Federal Motor Carrier Safety Administration or any applicable authority. In the event that Carrier receives an unsatisfactory or analogous safety rating, Carrier shall notify UNFI immediately of such fact and shall refrain from hauling any shipments on behalf of UNFI. Carrier shall comply with all Applicable Law pertaining to the performance of services, including transportation of the commodities tendered, under this Agreement.
Safety Procedures. When on the premises of UNFI or any third party pursuant to this Agreement, Carrier, its employees, subcontractors, and agents shall comply with good safety practices and procedures, including any established for those premises provided that UNFI or such third party provides Carrier with a copy of such safety practices. Any person refusing to comply with such safety practices and procedures may be excluded from the premises.
Handling, Loading and Sealing.
Carrier shall be responsible for all instructions, including those set forth on a BOL, related to ensuring the integrity of the product throughout transit. In the event that any goods or shipment(s) tendered hereunder require refrigeration, Carrier shall be solely responsible for complying with the instructions regarding such refrigeration and for ensuring that the reefer unit is fueled at all times. In the event that Carrier arrives to pick up a load which is to be refrigerated, but has not been provided with appropriate directions (e.g., the appropriate temperature setting), Carrier shall be responsible for obtaining appropriate instructions prior to departure.
Unless a shipment is loaded and sealed prior to arrival of Carrier personnel, the manner of loading and securing freight upon Equipment shall be the sole responsibility of Carrier (with respect to unsealed loads loaded prior to Carrier’s arrival, Carrier shall be obligated to inspect such loading prior to departing). Carrier represents that each driver utilized by it shall hold all requisite federal, state and local licenses and that each such driver shall be competent to manage the loading and transportation of the goods subject to this Agreement.
Notwithstanding anything to the contrary, with respect to less-than-truckload (“LTL”) shipments, including any LTL shipment initially loaded by UNFI or the consignor, Carrier agrees to inspect and count all pallets in such LTL shipments after each delivery point and note in applicable Shipment Documentation, as well as immediately notify UNFI, of any discrepancy, loss, or damage to pallets.
When required by UNFI or the consignor, Carrier shall secure shipments with a serialized seal, including re-sealing an LTL shipment after each delivery or pick-up point. Carrier shall ensure that the serialized seal number(s) appears on the Shipping Documentation. Carrier shall be solely responsible for maintaining seal integrity during transportation of the shipment. Except as is required by law enforcement personnel, under no circumstances shall Carrier or any of its personnel break any seal without the express written consent of UNFI. Carrier shall immediately notify UNFI to report a missing or broken seal.
In the event that law enforcement personnel require that Carrier break any seal on any shipment, Carrier shall document such fact on the Shipping Documentation by noting the law enforcement agency, time, location, and officer name and badge number. Upon completion of inspection by law enforcement personnel, Carrier personnel shall immediately re-seal the shipment with a serialized seal and shall indicate the second seal number on the Shipping Documentation. Furthermore, Carrier shall, as soon as reasonably possible after being required to break a seal by law enforcement personnel, communicate such fact to UNFI and, if not UNFI, the consignee of the shipment.
With respect to inbound services, Carrier is responsible for all such goods and products until the time it is received and accepted by UNFI. With respect to outbound services, Carrier is responsible for all such goods and products until the time it is received and accepted by the consignee or other identified recipient.
Use of UNFI’s Trailer(s) by Carrier. In the event that Carrier utilizes a trailer owned by or leased to UNFI, or otherwise provided to Carrier by UNFI (“Trailer(s)”) for the performance of the services contemplated hereunder, Carrier shall be liable for any damage to Trailers, destruction of Trailers, theft of Trailers or any part thereof, theft of any contents of Trailers, and for any claims for bodily injury (including death) or property damage caused by any Trailer(s) regardless of whether such damage, injury, destruction, or theft is caused or occurs while the Trailer is attached or unattached to any power unit operated by Carrier, except to the extent such damage, destruction, or theft is caused by the sole negligence, recklessness, or willful misconduct of UNFI. The initial burden of proving such damage, injury, destruction, or theft was the result of the sole negligence, recklessness, or willful misconduct of UNFI in any proceeding brought pursuant to this Agreement shall rest on Carrier. Additionally, Carrier shall be responsible for determining that the Trailer is appropriate for the transportation contemplated under both DOT and FDA rules, regulations and guidance. In the event that applicable state law does not allow UNFI to waive liability to the extent contained in this provision, the parties expressly agree that UNFI’s liability will be waived to the fullest extent allowed by applicable state law.
Performance Metrics. Any performance metrics with which Carrier is required to comply shall be agreed to by the parties. UNFI shall have the right to audit Carrier’s compliance with UNFI’s service requirements, including, but not limited to, handling procedures. This right shall include the right to audit product temperatures through the use of in-transit recorders added to a load prior to seal. Carrier shall use best efforts to ensure that any deficiencies identified in an audit by UNFI are remedied immediately.
Force Majeure. In the event Carrier or any UNFI are unable to perform hereunder for more than forty-eight (48) hours as a result of Acts of God, war, insurrection, labor dispute, or any other like causes beyond their reasonable control, the provisions of this Agreement shall be suspended to the extent required by such force majeure condition for the duration of such period. Any party unable to perform hereunder as a result of force majeure conditions shall notify the other parties in writing as soon as possible but in no event less than three (3) days of the advent of such condition. Such notification shall specify the date on which such force majeure condition commenced and the nature of such condition. The affected party shall also provide prompt written notice of the termination of the force majeure condition. Nothing in this section shall relieve Carrier of its liability for loss, damage, or delay to cargo as provided elsewhere in this Agreement.
Jurisdiction and Venue. Carrier consents to the exclusive jurisdiction of the courts of the state of Rhode Island and waives jurisdiction of all other courts. The law of the state of Rhode Island shall govern all interpretations of this Agreement or any rights or liabilities stemming from it or related to it in any such action. The obligations in this section shall survive termination of the Agreement.
Waiver. Failure by either party to this Agreement to promptly and vigorously enforce its rights under this Agreement shall not result in a waiver of such right, nor any other right provided for in this Agreement. The parties hereby expressly waive any rights as allowed by 49 U.S.C. § 14101(b)(1) to the extent such rights conflict with or are inconsistent with this Agreement or with any Appendix hereto.
Amendments; Assignments. Neither this Agreement nor any of the rights or obligations of the parties hereunder shall be assigned by Carrier, and no amendment or modification of this Agreement will be effective unless agreed to in writing by both parties.
Last updated: June 17, 2020