Team Drive-Away General Terms
These General Terms and Conditions have been adopted and incorporated by reference into that certain Driveway Service Agreement entered into as of the Effective Date between Team Drive-Away, Inc., as “Carrier,” and the counterparty (“Customer) whose signature appears thereon.
1. Taxes. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by Customer hereunder; provided, that, in no event shall Customer pay or be responsible for any taxes imposed on, or regarding, Carrier’s income, revenues, gross receipts, personnel, or real or personal property, or other assets.
2. Subcontractors Permitted. Carrier may subcontract with any person or business to perform transportation services for Customer. Carrier’s engagement of a Subcontractor does not relieve Carrier of its obligations under the Agreement. Carrier shall remain fully responsible for the performance of each such subcontractor and its employees and for their compliance with all of the terms and conditions of the Agreement as if they were Carrier’s own employees.
3. Independent Contractors. Nothing in the Agreement creates any agency, joint venture, partnership, or other form of joint enterprise, employment, or fiduciary relationship between the parties. Carrier is an independent contractor under the Agreement. Neither party has any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other party or to bind the other party to any contract, agreement, or undertaking with any third party. Carrier shall have sole and exclusive control over the manner in which Carrier’s personnel perform the transportation services. Customer acknowledges that Carrier’s personnel are deemed employees or subcontractors of Carrier (as applicable) only and are subject to discharge, discipline and control, solely and exclusively by Carrier.
4. Customer Responsibilities. Customer shall have the vehicle(s) ready for pick-up at the time quoted by Carrier and vehicle(s) must meet all applicable FMCSA safety criteria and be mechanically sound. Customer shall provide Carrier with shipment documentation showing the purchase order number, Customer’s identification number for the shipment transaction, the quantity in the shipment, consignee’s name and other material information. Customer shall give Carrier prior notice if the vehicle(s) contain any hazardous or dangerous materials. Customer is solely responsible for the direct and incidental costs associated with any required repairs, layover fees, tow fees, storage fees, citations or other charges caused by vehicle(s) that do not meet applicable FMCSA safety criteria and/or are not mechanically sound.
5. Delivery. Unless expressly agreed to by the parties in any individual shipment transaction, Carrier shall deliver the shipment to the delivery location using Carrier’s standard methods for shipment. Any time quoted by Carrier for pick-up and delivery is an estimate only. Carrier is not liable for or in respect of any loss or damage resulting from a delay in delivery.
6. Visual Inspections. Carrier’s driver and Customer’s representative shall perform a visual inspection of the vehicle(s) prior to driver taking possession of the vehicle(s) at the pick-up location and also upon arrival at the delivery location. Any visible damage or defects with the vehicle(s) shall be noted on the bill of lading prior to the driver leaving the pick-up location.
7. Special Preparation. In certain cases, Carrier may be required to remove fairings and/or stacks in order to remain within applicable height restrictions. Customer agrees to pay for all reasonable charges and expenses associated with such preparation as necessary to remove components from the vehicle(s) to ensure that legal hauling height restrictions are satisfied. Customer agrees to hold Carrier harmless for any damage to such components and Customer shall be solely responsible for safely re-installing such components subsequent to Delivery.
8. Bills of Lading and Shipment Receipts. Each shipment under the Agreement shall be evidenced by a shipment receipt showing the kind and quantity of vehicle(s) received by Carrier at the pick-up location, but the absence or loss of such receipt shall not relieve Carrier of its obligations and responsibilities under the Agreement. Any such receipt shall be prima facie evidence of the receipt by Carrier of such property in good order and condition.
9. Fuel Levels. Carrier shall delivery units with a minimum of 4” of fuel unless Customer requests otherwise in the shipment request. However, if the vehicle(s) have less than a minimum of 4” of fuel at the time of pick-up, Carrier will not add additional fuel unless requested by Customer prior to arrival at the delivery location.
10. Steer Tires and Lug Nuts. Carrier agrees to reinstall the steer tires on vehicle(s) once they are undecked at the delivery location. Customer acknowledges that Carrier does not accept responsibility to re-torque lug nuts to manufacturer’s specifications and, further acknowledges that it is standard practice for driveaway drivers to only replace 2-3 lug nuts per wheel as a safety measure to remind Customer and third-parties that the steer tire lug nuts need to be re-torqued. Customer understands and agrees that it is solely responsible for notifying its customers and other potentially affected third-parties of this issue and for ensuring all lug nuts on steer tires are replaced and properly re-torqued prior to placing the vehicle(s) into operation.
11. Risk of Loss. Except for ordinary wear and tear and damages or expenses caused by mechanical failures of the vehicle(s) that are not the result of Carrier’s negligence, Carrier shall bear all risk of loss of and damage to or theft of the vehicle(s) commencing when Carrier picks up the vehicle(s) at the pick-up location until the time Carrier delivers the shipment to the delivery location.
12. Requirement to Obtain Insurance. Carrier shall procure and keep in force continuously during the Term the following types of insurance: (a) Commercial general liability insurance, including blanket contractual coverage, for bodily injury and property damage in the amount of $3,000,000.00 combined single limit per occurrence; and (b) Primary cargo insurance in an amount equal to the full value of the maximum quantity of vehicle(s) expected to be transported at any one time under the Agreement, but in no event in an amount less than $250,000 per shipment, to compensate Customer, its vendors, suppliers and/or customers, consignee or other owner of the vehicle(s) for any and all loss or damage to property or from property which was placed in the possession or control of Carrier in connection with the transportation services. Upon request by Customer, Carrier agrees to provide a certificate of insurance showing the existence and limits of the above coverages.
13. Credit Status. If Carrier determines in its sole discretion that Customer’s financial condition or creditworthiness is inadequate or unsatisfactory, then in addition to Carrier’s other rights, Carrier may without liability or penalty take any of the following actions: (a) accelerate all amounts owed by Customer to Carrier under the Agreement and any individual shipment transaction; (b) modify the payment terms for outstanding and future individual shipment transactions, including requiring Customer to pay cash in advance; (c) cancel any previously accepted shipment requests; (d) suspend any future shipments; (e) terminate the Agreement; or (f) any combination of the above. No actions taken by Carrier hereunder (nor any failure of Carrier to act hereunder) constitute a waiver by Carrier of any of its rights to enforce Customer’s obligations under the Agreement including, but not limited to, the obligation of Customer to make payments as required under the Agreement.
14. Late Payments. Except for invoiced payments that Customer has successfully disputed, Customer shall pay interest on all late payments, calculated daily and compounded monthly at the lesser of the rate of 1.5 % per month or the highest rate permissible under applicable law. Customer shall also reimburse Carrier for all reasonable costs incurred in collecting any late payments, including attorneys’ fees. In addition to all other remedies available under the Agreement or at law (which Carrier does not waive by the exercise of any rights under the Agreement), if Customer fails to pay any amounts when due under the Agreement, then Carrier may: (a) suspend the delivery of any shipment, (b) reject Customer’s shipment requests, (c) cancel accepted shipment requests, (d) terminate the Agreement, and/or (e) elect any other remedies as allowed by law.
15. Carrier’s Right to Terminate. Carrier may terminate the Agreement on written notice to Customer: (a) if Customer fails to pay any amount when due under the Agreement; (b) if Customer breaches any provision of the Agreement or any individual shipment transaction, and either the breach cannot be cured or, if the breach can be cured, it is not cured by Customer within five days after Customer’s receipt of written notice of such breach; (c) if Customer (i) becomes insolvent or is generally unable to pay its debts as they become due, (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, (iii) makes or seeks to make a general assignment for the benefit of its creditors, or (iv) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business; or (d) if Carrier terminates any other agreement between (i) Carrier and (ii) Customer or Customer’s affiliates, due to Customer’s or Customer’s affiliates’ breach or non-performance thereof.
16. Effect of Termination. (a) Expiration or termination of the Term will not affect any rights or obligations of the parties that: (i) come into effect on or after expiration or earlier termination of the Agreement; or (ii) otherwise survive the expiration or earlier termination of the Agreement and were incurred by the parties prior to such expiration or earlier termination.
17. Confidentiality. From time to time during the Term, Carrier (as “Disclosing Party”) may disclose or make available to Customer (as “Receiving Party”) information about its business confidential intellectual property, trade secrets, third-party confidential information and other sensitive or proprietary information, whether orally or in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information shall not include information that, at the time of disclosure: (i) is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of this paragraph by Receiving Party or any of its representatives; (ii) is or becomes available to Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (iii) was known by or in the possession of Receiving Party or its representatives prior to being disclosed by or on behalf of Disclosing Party; (iv) was or is independently developed by Receiving Party without reference to or use of, in whole or in part, any of Disclosing Party’s Confidential Information; or (v) is required to be disclosed pursuant to applicable federal, state or local law, regulation or a valid order issued by a court or governmental agency of competent jurisdiction. Receiving Party shall: (A) protect and safeguard the confidentiality of Disclosing Party’s Confidential Information with at least the same degree of care as Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (B) not use Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under the Agreement; and (C) not disclose any such Confidential Information to any person or entity, except to Receiving Party’s Representatives who need to know the Confidential Information to assist Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under the Agreement. Receiving Party shall be responsible for any breach of this paragraph caused by any of its representatives. Disclosing Party may seek equitable relief (including injunctive relief) against Receiving Party and its representatives to prevent the breach or threatened breach of this paragraph and to secure its enforcement, in addition to all other remedies available at law.
18. Limited Warranty. Carrier warrants to Customer that it shall perform the transportation services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with industry standards for similar services and shall devote adequate resources to meet its obligations under the Agreement.
19. Customer’s Exclusive Remedy for Breach of Service Warranties. Except to the extent any claim is actually covered by applicable insurance policies, Customer’s exclusive remedy for Carrier’s breach of the Limited Warranty set forth above is Carrier’s refund of the purchase price of the corresponding individual shipment transaction. THIS REMEDY IS EXCLUSIVE AND IS CUSTOMER’S SOLE REMEDY AND CARRIER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY.
20. Disclaimer. EXCEPT FOR THE LIMTED WARRANTY EXPRESSLY SET FORTH HEREIN, CARRIER MAKES NO WARRANTY WHATSOEVER REGARDING THE SERVICES, WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. CUSTOMER ACKNOWLEDGES THAT IT HAS NOT RELIED ON ANY REPRESENTATION OR WARRANTY MADE BY CARRIER, OR ANY OTHER PERSON ON CARRIER’S BEHALF, EXCEPT AS SPECIFICALLY PROVIDED HEREIN.
21. Mutual Indemnification. Subject to the terms and conditions of the Agreement, each party (“Indemnifying Party”) shall indemnify, defend and hold harmless the other Party and its officers, directors, employees, agents, affiliates, successors, and permitted assigns (collectively, “Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind incurred by Indemnified Party (collectively, “Losses”), arising out of or resulting from any claim of a third party alleging: (a) any negligent or more culpable act or omission of Indemnifying Party or its personnel (including any recklessness or willful misconduct) in connection with the performance of its obligations under the Agreement; or (b) any bodily injury, death of any person or damage to real or tangible personal property caused by the negligent acts or omissions of Indemnifying Party or Indemnifying Party’s personnel; or (c) any failure by Indemnifying Party or its personnel to materially comply with applicable laws. This mutual indemnification provision does not apply to first party claims, for which the sole and exclusive remedy is the Limited Warranty set forth herein. Notwithstanding anything to the contrary in the Agreement, Indemnifying Party is not obligated to indemnify or defend Indemnified Party against any claim to the extent such claim or corresponding Losses result from Indemnified Party’s or its personnel’s negligence or more culpable act or omission (including recklessness or willful misconduct).
22. No Special Damages; Limitation On Liability. EXCEPT FOR LIABLITY FOR INDEMNICATION TO THIRD-PARTIES, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY OR ITS REPRESENTATIVES BE LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES, OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THE AGREEMENT, REGARDLESS OF (A) WHETHER THE DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT IT WAS ADVISED OF THE POSSIBILITY OF THE DAMAGES AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE) ON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. NOTWITHSTANDING ANY PROVISION IN THE AGREEMENT TO THE CONTRARY, CARRIER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, SHALL NOT EXCEED THE TOTAL OF THE AMOUNTS PAID TO CARRIER UNDER THE AGREEMENT IN THE 12-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
23. Claims for Damages. All claims by Customer for damages shall be resolved in accordance with 49 C.F.R. pt. 370, which shall govern the processing of claims for loss and damage to property. Customer should file claims with Carrier as soon as possible after the vehicle(s) arrive at the delivery location, but in any event no later than five business days. Claims must be supplemented by an invoice(s), appraisal(s) and/or by an insurance adjuster’s report provided by Customer in order to be considered by Carrier. Customer acknowledges that Carrier is not responsible for the following damages: (a) normal wear and tear; (b) internal mechanical failures of any kind; (c) damage caused by tire failures or road hazards, rocks or debris; or (d) damage that a visual inspection of the vehicle(s) would have revealed upon arrival at the delivery location but which was not noted on the bill of lading at the time of delivery.
24. Terms of Agreement Prevail Over Customer’s Documentation. The parties intend for the express terms and conditions contained in the Agreement (including any Schedules and Exhibits hereto) and these General Terms and Conditions and the basic shipment terms contained in the applicable shipment request to exclusively govern and control each of the parties’ respective rights and obligations regarding the subject matter of the Agreement, and the Agreement is expressly limited to such terms and conditions. Without limitation of the foregoing, any additional, contrary, or different terms contained in any shipment request, bill of lading, or other request or communication by Customer pertaining to the transportation services, and any attempt to modify, supersede, supplement or otherwise alter the Agreement, will not modify the Agreement or be binding on the parties unless such terms have been fully approved in a signed writing by authorized representatives of both parties.
25. Force Majeure. Carrier shall not be liable or responsible to Customer, nor be deemed to have defaulted under or breached the Agreement, for any failure or delay in fulfilling or performing any term of the Agreement, when and to the extent such failure or delay is caused by or results from acts beyond the Carrier’s reasonable control, including: (a) acts of God; (b) flood, fire, earthquake, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) Law; (e) actions, embargoes, or blockades in effect on or after the date of the Agreement; (f) action by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages or slowdowns, or other industrial disturbances; and (i) shortage of adequate Carrier personnel or contract drivers (each a “Force Majeure Event”).
26. Assignment. Customer may not assign any of its rights or delegate any of its obligations under the Agreement without the prior written consent of Carrier. Carrier may assign any of its rights without Customer’s consent. Any purported assignment or delegation in violation of this paragraph is null and void. No assignment or delegation relieves the assigning or delegating party of any of its obligations under the Agreement.
27. Choice of Law. The Agreement, including all individual shipment transaction documents and exhibits, schedules, attachments and appendices attached to the Agreement and thereto, and all matters arising out of or relating to the Agreement, are governed by, and construed in accordance with, the laws of the State of Kansas, without regard to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the Laws of any jurisdiction other than those of the State of Kansas.
28. Choice of Forum. Each party irrevocably and unconditionally agrees that it will not commence any action, litigation or proceeding of any kind whatsoever against the other party in any way arising from or relating to the Agreement, including all individual shipment transaction documents and exhibits, schedules, attachments, and appendices attached to the Agreement and thereto, and all contemplated transactions, including contract, equity, tort, fraud, and statutory claims, in any forum other than the United States District Court of Kansas or, if such court does not have subject matter jurisdiction, the courts of the State of Kansas sitting in Johnson County, Kansas, and any appellate court from any thereof. Each party agrees that a final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
29. Waiver of Jury Trial. Each party acknowledges and agrees that any controversy that may arise under the Agreement, including any individual shipment transaction documents or exhibits, schedules, attachments, and appendices attached to the Agreement, is likely to involve complicated and difficult issues and, therefore, each such party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to the Agreement, including any individual shipment transaction documents, exhibits, schedules, attachments, or appendices attached to this Agreement, or the transactions contemplated hereby.