TRANSPORTATION SERVICES

TERMS AND CONDITIONS

Fort Transfer Co (“Carrier”) is a registered interstate motor carrier under Docket No. MC-146074 of the Federal Motor Carrier Safety Administration (“FMCSA”) and holds U.S. Department of Transportation (“DOT”) No. 134578. You (“Shipper”) have requested a quote from us for transportation services. Unless expressly superseded by a written contract signed by an officer of Carrier and Shipper, all transportation quotes for each and every shipment to be tendered (or caused to be tendered) to Carrier incorporate all the Terms and Conditions set forth below. By your request for services, and our provision of and your acceptance of the quote provided to you, followed by your tender of freight for transportation to us, the parties agree to the following as to each and every shipment tendered (or caused to be tendered) to us:

1. SCOPE OF TERMS AND CONDITIONS. These Terms and Conditions, and any other terms upon which Carrier and Shipper have agreed in writing (“Additional Terms”) apply to all transportation and related services furnished by Carrier to Shipper, including as applicable the use of Carrier’s facilities and terminals (the “Services”). Additional Terms may be electronically communicated and agreed upon through Carrier’s website, rate confirmation notice or e-mail. These Terms and Conditions, including all Appendixes and where applicable any Additional Terms, are collectively referred to as the “T&Cs.” The term “Shipper” shall include consignees and other Carrier customers as appropriate.

2. THESE T&Cs ARE A CONTRACT OF CARRIAGE. Carrier and Shipper are sometimes each referred to below as a “Party,” and together as the “Parties.” Shipper’s written request for services from Carrier and Carrier’s written acceptance shall constitute the parties’ written agreement that these T&Cs, together with the request and acceptance are a contract between Shipper and Carrier within the meaning of 49 U.S.C. § 14101(b)(1), and Shipper and Carrier expressly waive any and all rights and remedies allowed to be waived under 49 U.S.C. § 14101 to the extent that such rights and remedies conflict with these T&Cs. For this purpose, “written” request and acceptance includes electronic communications and the parties agree that each such request and acceptance are and shall be considered signed by them. Failure by either party to insist upon the other party's performance under these T&Cs or to exercise any right or privilege herein, shall not be a waiver of any of the rights or privileges provided for in these T&Cs. These T&Cs shall prevail over tariffs or schedules maintained by Shipper or any bills of lading or freight documents used in connection with the Services whether prepared by Carrier or Shipper. These T&Cs apply to all shipments accepted by Carrier and requested or paid for by Shipper or its agents or representatives, or where a third party pays the bill for Shipper.

3. TRANSPORTATION SERVICES. The Services include the following:

A. Compliance With Law. Carrier will provide the transportation services in compliance with all federal, state, provincial, and local environmental, hazardous materials transport and safety transportation statutes, ordinances, rules, and regulations.

B. Performance Requirements. Carrier shall transport shipments to their specified destination with reasonable dispatch, unless a specified delivery date and/or time is agreed upon prior to the pick-up of any individual shipment, in which case delivery shall be performed in accordance with the schedule agreed upon.

C. Bills of Lading. Each shipment hereunder shall be evidenced by a bill of lading. The bill of lading shall act as a receipt only and in no event shall any terms, conditions and provisions of the bill of lading, manifest or other form of receipt apply to transportation performed pursuant to this Agreement. Carrier shall notify Shipper within a reasonable timeframe of any exception made on the bill of lading or delivery receipt.

D. Carrier’s Operating Authority. Carrier represents and warrants that it is duly and legally qualified to provide all transportation services contemplated herein and that its drivers will be duly licensed for the provision of the services.

4. RATES, INVOICES AND PAYMENT.

A. Rates and Other Terms. Absent a written contract otherwise, Carrier will charge and Shipper agrees to pay the rates provided to Shipper in a rate confirmation or spot rate provided by Carrier. If the rates provided to Shipper do not specify that fuel surcharge or accessorial services are included, then the rates and charges for related services performed as set forth in Appendices A and B, as applicable, of these T&Cs hereunder shall also apply. The rates as stated cannot be changed, modified, or supplemented by reference to any other rates, rules, classification, schedule, or tariff. Application of the linehaul rate above, as well as the rates stated in Appendices A and B, and any rates quoted in Additional Terms will be based on the information supplied by Shipper and will be based on agreed upon limitations of liability and rates in effect at the time of the quote. Actual charges will be based on the shipment's actual weight, dimensions, requested transit days and additional services requested and/or performed. Shipper shall be liable for all charges arising out of transportation services requested by Shipper and performed by Carrier, including but not limited to corrections based on weight or dimensions, special Shipper-specified transit times or accessorial charges, unless the parties expressly agree otherwise in writing.

B. Change in Rates and Other Terms. The provisions of these T&Cs, including the applicable Appendixes, and any Additional Terms can be supplemented or revised only by written agreement signed by both Carrier and Shipper prior to transportation, or by e-mail by Carrier to Shipper if not objected to by Shipper, in writing, within twenty-four (24) hours from the date and time e-mailed.

C. Invoices and Payment. Payment shall be due from Shipper within thirty (30) days of the date of invoice by Carrier, and in the event the payment is not made within thirty (30) days, Shipper agrees that interest shall accrue daily and be payable to Carrier at the interest rate of twelve percent (12%) per annum, together with any and all collection costs, including attorney fees. Carrier and Shipper agree that any payments made hereunder are made in payment of debts incurred in the ordinary course of business and are made according to ordinary business terms.

D. Carrier Lien. Shipper understands and agrees that in the event of failure to pay freight charges as due, Carrier shall be entitled to a general lien on any cargo in the possession of Carrier which is tendered or owned by Shipper regardless of whether such freight charges apply to the cargo in the possession of Carrier. Carrier’s rights and obligations with respect to disposal of such cargo and enforcement of its lien shall be as set forth under the law of the state selected by the parties to govern disputes under this Agreement assuming a valid carrier lien under such state law regardless of whether the lien at issue qualifies for enforcement under such law.

5. INDEMNITY.

A. Carrier Indemnity. Carrier shall indemnify, defend, and save Shipper, its employees, and agents harmless from and against any and all liability, claims, loss, costs, fines, penalties, expenses (including attorney’s fees), judgments, or demands on account or damage of any kind whatsoever, including but not limited to personal injury or death, property damage, cargo damage, or any combination thereof, suffered or claimed to have been suffered by any person or persons, arising out of Carrier’s services provided in connection with these T&Cs or any Additional Terms to the extent such claim is caused by 1) the negligence or intentional misconduct of Carrier; 2) Carrier’s or its employees’ violation of applicable laws or regulations; or 3) Carrier’s or its employees’ or agents’ breach of these T&Cs or any Additional Terms. The foregoing notwithstanding, Carrier shall have no liability to Shipper under this provision, or otherwise owe any obligation to Shipper under this provision, to the extent such liabilities or obligations represent consequential or special damages, or are the result of or arise from the negligence or other wrongful conduct of Shipper.

B. Shipper Indemnity. Shipper shall indemnify, defend and save Carrier, its employees, and agents harmless from and against any and all liability, claims, loss, costs, fines, penalties, expenses (including attorney’s fees), judgments, or demands on account or damage of any kind whatsoever, including but not limited to personal injury or death, property damage, cargo damage, or any combination thereof, suffered or claimed to have been suffered by any person or persons, arising out of Shipper’s performance under these T&Cs or any Additional Terms to the extent such claim is caused by 1) the negligence or intentional misconduct of Shipper; 2) Shipper’s or its employees’ or agents’ violation of applicable laws or regulations; or 3) Shipper’s or its employees’ or agents’ breach of these T&Cs or any Additional Terms, except to the extent such liability, claims or loss represent consequential or special damages, or are the result of the negligence or other wrongful conduct of Carrier.

C. Joint Responsibility. In the event that any claims, liabilities, losses, damages, fines, penalties, payments, costs and expenses (including without limitation, reasonable attorney fees) under this Section 5 are caused by the joint and concurrent negligence or other fault of the Parties, or the Parties and a third party, the indemnity obligations for such claims, liabilities, losses, damages, fines, penalties, payments, costs, and expenses shall be borne by each Party in proportion to its degree of negligence or other fault.

D. No Special or Consequential Damages. In no event shall either Party be responsible for any special or consequential damages under these T&Cs or any Additional Terms.

E. Tender of Defense. Any indemnified Party shall promptly tender the defense of any claim to the indemnifying Party.

F. Cargo Claims. Each party’s indemnity covenants shall exclude cargo claims on shipments transported by Carrier, which are addressed in Section 7 of these T&Cs.

6. INSURANCE. Carrier shall procure and maintain auto liability insurance insuring Carrier against liability for bodily damage (including death), property damage, and for loss of or damage to freight, in at least the minimum amounts required for motor carriers by applicable federal or state law or regulation and in any event at least $1,000,000. Carrier shall also procure and maintain workers’ compensation coverage as required by applicable state law. Upon request, Carrier shall furnish to Shipper written certificates obtained from the insurance carrier showing that such insurance has been procured.

7. FREIGHT LOSS OR DAMAGE.

A. Notice of Claim and Limit of Liability. Shipper shall submit to Carrier written notice of any cargo claim, including loss or expenses resulting from Carrier's delay in providing service, within nine (9) months of the delivery date of the shipment or, if no delivery, the date of the occurrence resulting in the claim. Any civil action filed by Shipper must be filed no later than two (2) years from the date of delivery specified on the bill of lading. Carrier shall be liable to Shipper for all freight loss and damage claims as provided at 49 U.S.C. § 14706. Carrier’s liability for cargo damage shall not exceed $100,000 per truckload, unless a greater value has been stated by Shipper and accepted by Carrier prior to shipment pursuant to subsection D below. In no event shall either party hereto be liable for special or consequential damages that relate to loss, damage or delay to a shipment or for any other reason. Carrier shall not be liable for loss or damage caused by the occurrence of an act of God or a public enemy, a public authority, an act of the Shipper, or the inherent vice or nature of the lading.

B. Concealed Loss or Damage. Any claim or action for concealed loss or damage of, or injury to, shipments to be transported by Carrier under these T&Cs, shall be reported by Shipper to Carrier as soon as possible but in no event later than fifteen (15) days after delivery of such shipments.

C. Time Limit for filing Lawsuits. Suits must be initiated within two (2) years and one (1) day after Shipper receives written notice from Carrier disallowing claim.

D. Required Procedure for Increase in Carrier Limit of Liability. Shipper agrees that the value of cargo on any particular shipment does not exceed $100,000, unless Shipper advises Carrier at least twenty-four (24) hours before the scheduled pickup. In that event, Carrier (i) may refuse the shipment, (ii) agree to accept the shipment, in which case Carrier may secures additional cargo insurance in the amount of the value stated by Shipper and the cost thereof shall be invoiced to Shipper as part of freight charges, or (iii) furnish Shipper with a new quote including additional charges for valuation which Shipper must accept before pickup at any time before loading. Shipper shall also note any separately agreed upon value on the freight documentation form utilized for the delivery of freight. Acceptance of any shipment valued above $100,000 can be made only in writing by a Manager of Carrier in order for the value to be effective.

8. HAZARDOUS MATERIAL TRANSPORTATION. Shipper shall comply with all laws, rules, regulations and ordinances regarding tender of hazardous materials, as that term is used and defined in the Hazardous Material Transportation Act, 49 U.S.C. § 50101 et seq., as well as any other hazardous or non-hazardous waste (“Hazardous Material”), including any and all applicable notices and/or manifests related to such Hazardous Material. Shipper further agrees that, prior to any shipment, it shall provide Carrier with a current copy of the Material Safety Data Sheet for the Hazardous Materials to be tendered to Carrier for transportation. Carrier and its drivers shall be authorized in accordance with all applicable laws, rules, regulations, and ordinances regarding transportation of Hazardous Materials and will comply with all applicable laws, rules, regulations, and ordinances related to transportation of Hazardous Materials. Shipper shall indemnify, defend and hold harmless Carrier and its officers, employees, agents and insurers, against all claims, liabilities, losses, fines, reasonable attorney fees and other expenses arising out or related to the exposure to a release of any Hazardous Material, including without limitation, fines or expenses relating to the removal or treatment of Hazardous Material or other remedial action pertaining to the Hazardous Material under federal or state law, if: (i) Shipper fails to provide the notice required by this provision prior to tendering the Hazardous Material to Carrier; (ii) the contact, exposure or release resulted from the improper packaging of loading or other acts or omissions of the Shipper, its employees or agents; or (iii) the contact, exposure of release occurred subsequent to the transport of the Hazardous Material by Carrier.

9. INDEPENDENT CONTRACTOR RELATIONSHIP, OPERATIONS AND EMPLOYEES. Carrier shall be considered an independent contractor at all times during the execution of its duties under these T&Cs, and nothing herein shall be construed as creating an employer-employee, partnership, joint venture, or subsidiary relationship between the parties hereto. Carrier shall have the sole and exclusive responsibility for the manner in which its employees and/or agents perform its duties under these T&Cs, and Shipper neither exercises nor retains any control over Carrier, its operations or employees in any manner whatsoever.

10. LEGAL RESTRAINT OR FORCE MAJEURE. In the event performance by one Party is affected or prohibited by any cause beyond the reasonable control of such Party, including without limitation, fire, labor strife, riot, civil unrest, war, weather conditions, acts of the public enemy, acts of God, acts of terrorism, local or national disruptions to transportation networks or operations, material equipment repairs, fuel shortages, governmental regulations, or governmental request as requisition for national defense, or requests of governmental officials, and provided that the applicable cause is not attributable to the acts or omissions of such Party, and such Party is taking reasonable measures to remove or mitigate the effects of the applicable cause, then the running of all periods of time, and the performance of all obligations required herein shall be suspended during the continuance of such interruption. The affected Party shall promptly notify the other Party of such interruption.

11. NOTICES. Any notice, request, direction, instruction or other communication relating to the transactions contemplated by these T&Cs shall be in writing (including electronic communications, which shall constitute a writing), shall be sent postage prepaid if sent in hard copy, and shall be deemed to have been given when sent: (a) by certified mail (return receipt), premium private courier service or delivery service; (b) by fax or telecopier, with proof of receipt by the intended recipient, or (c) by e-mail. Notices to Carrier shall be provided as set forth below:

Fort Transfer Co
Attn: VP of Operations
225 S. Maple Ave
Morton, IL 61550
(With copy to General Counsel at same address)

Notices to Shipper shall be to the address, fax number, or e-mail address furnished by Shipper to Carrier in writing, by e-mail or on Carrier’s website.

12. ENTIRE AGREEMENT. These T&Cs (and any Additional Terms) constitute the entire agreement of the Parties with reference to the subject matters herein and cannot be amended except in writing signed by both Parties.

13. ASSIGNMENT. Rights under these T&Cs may not be assigned or transferred in whole or in part, without the prior written consent of the other party, except if notice is provided and the assignment is to a parent, subsidiary or affiliated entity of either party hereto. Subject to the foregoing, these T&Cs shall inure to the benefit of and be binding on the successors and assigns of the parties hereto.

14. CHOICE OF LAW AND VENUE. These T&Cs will be governed by the laws of the United States and of the State of Illinois without regard to the choice-of-law rules of that or any other jurisdiction. The parties agree that any claim or dispute arising from or in connection with these T&Cs, any Additional Terms, or with respect to the overall relationship between the parties, whether under federal, state, local, or foreign law, must be brought exclusively in the state or federal courts serving Tazewell County, Illinois. Carrier and Shipper consent to the jurisdiction of these courts. Notwithstanding the foregoing, the Parties may mutually agree in writing to submit any such disagreement or dispute to binding arbitration.

15. HEADINGS. Any headings or numbering of sections, paragraphs or articles of these T&Cs are for organizational convenience only and all terms and conditions of these T&Cs are intended to take precedence over any such heading or numbering.

16. SEVERABILITY. If any part, term, section, paragraph or provision of these T&Cs results in a violation of any law or is found or declared to be invalid or unenforceable for any reason, such part, term, section, paragraph or provision shall be severable and the remainder of these T&Cs shall remain in full force and effect

17. AUTHORITY TO AGREE. By enabling communications to Carrier that constitute agreement to these T&Cs and any Additional Terms by e-mail, access through Carrier’s website or other electronic means, Shipper represents that each communication was made by a person authorized to do so on Shipper’s behalf.

APPENDIX A

FUEL SURCHARGE SCHEDULE

Surcharge percentage is based on the Department of Energy, National Diesel Fuel Price Index.

 

Appendix B

Schedule of Accessorial Charge

Service	Pricing	Definition/Application/Unit of Measure. Etc.
Air	$50.00	Per use charge
Pump	$50.00	Per use charge
Border Crossing Delay	$80.00	Billed in 15 minute increments up to $80 per hour from point of arrival at border crossing to departure from border. No free time. Will not exceed 12 hours. Documentation of Border Delay required at invoicing.
Canada Border Crossing Fee	$325.00	Per border crossing into Canada
Cleaning – Residue/Heel Disposal	Actual cost pass thru	All applicable charges are a pass through. Receipt of charges required at invoicing.
Tank Wash	250.00*	Per tank wash charge. Plus an additional $50 per compartment * Higher charges may apply for more specialized washes
Haz Mat Fee	$50.00	Any product deemed hazardous material would be incur the Haz Mat Fee.
Mileage Rate	$2.00	Detour Routes (Out of Route) – when detour mileage exceeds twenty (20) miles. Repositioning – when driver must go back to destination site to retrieve a dropped trailer.
Stop Off	$75.00	Each stop excluding the first and final stop.
Detention Charge, Demurrage, Exceed Load/Unload	$80.00	2 hours free loading and 2 hours free unloading. Thereafter, billed in 15 minute increments up to $80 per hour for all time from initial point of arrival (or appointment time when appointments for loading or unloading are requested), until final departure when all paper work, lab work, weighing, etc., has been completed. Will not exceed 8 hours in any 24 hour period
Drum Transfer	$125.00	Transfer of products into Shipper's or Recipient's supplied totes or drums and personnel's hourly demurrage charge. $125 nozzle charge if supplied by Fort Transfer.
Equipment Spot & Idle Day Charges	$150.00	All equipment, spotted or idled at Shipper or Recipient's site. Charges to be assessed 7 days per week, with a maximum monthly fee of $2,500.00
Equipment-Unit Rental	$85.00	Per hour or fraction thereof in 15 minute increments, with an eight (8) hour minimum. A tractor/trailer unit of equipment with driver will be furnished for intra-plant work commercial zone/local service drayage or emergency service. Time will be computed from point of dispatch of the unit until it returns thereto.
Heating Service or Steaming	$45.00	Per hour at Carrier's terminal or actual cost at commercial facility. Both subject to current Detention charge when power unit and driver are detained.
In-Transit Heating	$150.00	Per load
Hose	$30.00	Per each 20 ft. section of hose required over 40 ft. – 1st two (2) hoses free.
Loads Canceled (Truck ordered, not Used)	$325.00+$2.00/mile+FSC	Flat fee plus running mileage charge for all miles driven plus cleaning charge if loading has begun. If a new order is given prior to departure from the loading site and cleaning is required, a second cleaning charge will apply, however, no free time will be allowed.
Reconsignment (change of destination)	$150.00	In addition, mileage (origin to destination) will be charged at the applicable mileage rate if reconsigned without any delays. Standard demurrage will be applicable when any delays are encountered.
Return or Rejected Load	60%	Of outbound rate, excluding shipments with dedicated equipment. Carrier will return refused/rejected material to shipping location or reconsigned as instructed by customer. Return shipments are subject to the minimum charges listed.
Scale Fee	$$Pass Thru	All applicable charges are a pass through. Receipt of charges required at invoicing. Scale Operator Fee.
Weigh Service	$70.00	Weighing of the truck empty, load product and re-weigh full truck. Any detention time has been included in this flat fee charge.
Tolls	$$Pass Thru	Charge based on the route calculations using Rand McNally (version 19, shortest miles ( HHG)).
Layovers	$325.00	Tractor, trailer & driver surcharge for an overnight layover. (for period 5 p.m. to 8 a.m.)
	$800.00	Tractor, trailer & driver surcharge for a weekend layover. (for period 5 p.m. to 8 a.m.)
	$350.00	Two man sleeper surcharge for an overnight layover. (for period 5 p.m. to 8 a.m.)
	$950.00	Two man sleeper surcharge for a weekend layover. (for period 5 p.m. to 8 a.m.)
		* Hourly detention charges to apply for period 8 a.m. to 5 p.m.
Fuel Surcharge	See Table	The surcharge will be adjusted weekly and indexed to the Department of Energy National Average Fuel Price. The table will continue in $.05 with .5% increases incrementally.