Last Updated: October 5, 2022
Dray Alliance Inc (“Broker”) is in the business of arranging transportation of property by third-party motor carriers and holds authority from the Federal Motor Carrier Safety Administration under Permit Number MC #40470, to engage in operations as a transportation broker of general commodities in interstate or foreign commerce. You (“You” or “Shipper”) understand and acknowledge that (1) Broker is not a motor carrier, (2) Broker is a broker which arranges for the transportation of freight by third-party motor carriers and (3) Broker intends to engage and contract with one or more Carriers (as defined below) for purposes of satisfying obligations under these Terms and Conditions.
By tendering freight to Broker, You agree to be bound by these Terms and Conditions, except as may be set forth in a contract signed by You and Broker. In the event of a conflict between these Terms and Conditions and signed contract, the signed contract shall control.
You and Broker enter into these Terms and Conditions in accordance with 49 U.S.C. § 14101(b)(1) and expressly waive any and all rights and remedies that each may have under Title 49 that conflict with these Terms and Conditions.
Broker agrees to arrange for transportation of your freight (“Shipments”) by third-party motor carriers (“Carrier(s)”) in compliance with all federal, state and local laws and regulations. Broker’s responsibility is limited to arranging for, but not actually performing, transportation of Shipments.
You are not restricted from tendering freight to other brokers, freight forwarders, third-party logistics providers, or directly to motor carriers. The Broker is not restricted from arranging transportation of freight for other parties.
i. You must provide necessary shipping instructions and properly identify all Shipments in the bill of lading or other shipping instructions. You will not tender any restricted commodities including, but not limited to, hazardous materials and waste, oversize or overweight shipments, coiled or rolled products, or commodities requiring protection from heat or cold, without properly identifying such shipments and making necessary prior arrangements for transportation, including but not limited to securing a quote for a higher transportation charge for the additional service(s) requested.
ii. At the time of booking, and prior to loading the Shipments, You must further specify in the booking request and on the face of the bill of lading all instructions to be followed by the Carrier to maintain the safety of the Shipments, including, without limitation, all temperature control requirements and temperature control documentation requirements, including an operating temperature for the transportation and, when necessary, the pre-cooling phase, all sanitation requirements and sanitation documentation requirements for the Shipments, including those for the Carrier’s vehicle and transportation equipment, any design specifications and cleaning procedures (“Written Instructions”). Broker will assist You in providing any Written Instructions to the Carrier transporting your Shipments.
i. You are responsible for ensuring that Shipments are properly and safely packaged and loaded for the type of transportation requested (i.e. LTL, TL, flatbed, refrigerated van, intermodal, etc.). You are responsible for ensuring that Shipments are supported, blocked, braced, and secured prior to transport.
ii. For exports you must reject any equipment that is not in appropriate condition to protect and preserve the Shipments during transportation, or it shall be deemed appropriate when loaded and not rejected. Your failure to fulfill the obligations under this section will be considered an act or default of the Shipper, and a defense to any cargo claim resulting from the condition of the trailer.
i. If applicable, You must comply, and Broker will contractually require the Carrier to comply, with all applicable laws and regulations governing the safe and secure transportation of food products that will be ultimately consumed by humans or animals, including those required by local, provincial, state and federal laws, regulations, ordinances and rules including, but not limited to, the Food Safety Modernization Act, the Federal Food, Drug and Cosmetic Act, the Sanitary Food Transportation Act, the U.S. Food and Drug Administration’s Final Rule on the Sanitary Transportation of Human and Animal Food, and all applicable U.S. Department of Agriculture and Food Safety and Inspection Service regulations.
i. None of the provisions in these Terms and Conditions in any way limits your obligation to mitigate damages, including by salvaging all portions of a shipment for which there is a secondary market.
i. Verifying the Carrier’s operating authority, state or federal, as necessary.
ii. Verifying the Carrier’s insurance coverage, as evidenced by a certificate of insurance showing coverage of at least:
1. $1,000,000 per occurrence for Auto Liability.
2. $100,000 per occurrence for Motor Truck Cargo Liability.
i. Broker will require by written contract, that each Carrier providing transportation services agree that it is duly and legally licensed under applicable state, provincial and federal law to provide transportation services, that it does not have an unsatisfactory safety rating issued by the United States Department of Transportation, or any state or provincial authority with jurisdiction over its operations, and that it will comply with all applicable federal, state, provincial and local laws,
If requested by You, Broker agrees to provide You with proof of acceptance and delivery of shipments in the form of a signed bill of lading or proof of delivery via electronically by email, EDI (Electronic Data Interchange) or API(Application Programming Interfaces). Your insertion of Broker’s name on the bill of lading will be for your convenience only and will not change Broker’s status as a property broker. The terms and conditions of any freight documentation used by You or Carrier will not supplement, alter, or modify these Terms and Conditions. Failure to provide proof of delivery shall not be grounds for non-payment where there is no dispute that a Shipment was successfully delivered.
i. For each Shipment, you will pay Dray Alliance the freight charge quoted to you upon acceptance of the applicable Shipment on the Service ("freight charge"). Dray Alliance may change pricing for the freight charge from time to time at its sole discretion based on market conditions.
i. Additional charges you may incur related to the Shipment may include, but are not limited to, terminal charges and shipping line fees such as demurrage and per-diem, chassis fees, storage fee, consignee waiting-time fee, dry run fee, bobtail fee, TMF Pier- pass fee, pre-pull fee, overweight fee, and scale ticket fee. Dray Alliance generally provides advance notice of ancillary services for which we intend to charge additional fees. However, advance notice is not always possible or practical, and Dray Alliance may not be able to communicate to you requests for approval of additional charges before the services are rendered. In that event, you agree to pay the costs of any accessorial and/or ancillary services which Dray Alliance determines are reasonable and necessary.
i. Broker will invoice You per container ingated for services performed during the execution of the container movement (drayage) and not for services scheduled but not yet performed.
i. You agree to pay all undisputed invoices, and the undisputed portion of any invoice subject to a partial dispute, within 30 days of invoice date without deduction or setoff.
i. Dray Alliance generally provides 24 hour advance notice of ancillary services for which we intend to charge additional fees. However, advance notice is not always possible or practical (i.e. dry runs). Dray Alliance may not be able to communicate to you requests for approval of additional charges before the services are rendered. In that event, you agree to pay the costs of any accessorial and/or ancillary services which Dray Alliance determines are reasonable and necessary.
i. You are advised for informational purposes that a Carrier's liability for lost, destroyed damaged or delayed cargo in interstate and international transit generally is deﬁned by 49 USC §14706 (referred to as "the Carmack Amendment") and by comparable state common law for intrastate transit. A Carrier may impose time limits for ﬁling of loss and damage claims, as well as for ﬁling any action at law for cargo loss or damage as provided by 49 USC §14706. We recommend you consult with a qualiﬁed attorney regarding any action you might wish to pursue against a Carrier based on lost, damaged, delayed or destroyed cargo.
i. Dray Alliance is not liable for any cargo loss which was not approximately caused by Dray Alliance's own negligence and in that instance Dray's liability shall be limited to established insurance coverage in section (10), and is always secondary to the motor carrier and its insurer, who are primarily liable for all cargo claims.
i. A claim for loss, damage, injury, or delay to cargo need not be paid by Broker if not filed with Broker in writing within 6 months of the date of delivery of a shipment or within 6 months of the date Broker notifies Shipper that the shipment is lost, or within 6 months after a reasonable date for delivery if there is no delivery and no notice of loss by Broker.
i. A communication in writing from Shipper, filed with Broker within the applicable time limit and (a) containing facts sufficient to identify the shipment (or shipments) of property involved, and (b) asserting Broker or its motor carrier are liable for alleged loss, damage, injury or delay, or (c) making claim for payment of a specified or determinable amount of money, will be considered as a sufficient claim.
i. Each claim filed against Broker in the manner prescribed herein will be promptly and thoroughly investigated if investigation has not already been made prior to receipt of the claim.
i. When the Broker has received a written claim for loss, damage, injury or delay to property transported, Broker will initiate an insurance claim or dispute such claim in writing to Shipper within 30 days after the receipt of the claim by Broker. If Broker disputes a shipper claim and the parties cannot agree upon the resolution either party may submit such dispute to the dispute resolution procedure set forth in section (9.A)
i. In the event of any insurance dispute, controversy or claim above ($500) of any kind or nature arising under or in connection with these Terms and Conditions, upon the written request of either party, each of the parties will appoint a designated senior business executive whose task it will be to meet for the purpose of endeavoring to resolve the Dispute. The senior business executives of each party will consider the Dispute either in person or by telephone within three (3) business days of receipt of the written request for dispute resolution (the date of receipt, the “Dispute Date”).
i. In the event that an accessorial fee is disputed, please send all official disputes to “[email@example.com](mailto:firstname.lastname@example.org)”.
i. Broker agrees to procure and maintain at its own expense, at all times during the term of these Terms and Conditions, the following insurance coverage amounts:
1. General Liability: $2,000,000
2. Cargo Insurance: $250,000
3. Third Party Liability $1,000,000
Broker shall maintain a surety bond or trust fund agreement as required by the FMCSA, in the amount of at least $75,000, or as otherwise required by the FMCSA, and will furnish You with proof of its bond or trust fund agreement upon request.
You must comply with all applicable laws and regulations relating to the transportation of hazardous materials as defined in 49 CFR §172.800, §173, and § 397 et seq. to the extent that any shipments constitute hazardous materials. You are obligated to inform Broker immediately if any such shipments constitute hazardous materials. You shall defend, indemnify, and hold Broker harmless, including reasonable attorney fees, from any penalties or liability of any kind, arising directly out of your failure to comply with applicable hazardous materials laws and regulations.
You must defend, indemnify, and hold Broker, Broker’s employees and agents and Carriers harmless, including reasonable attorney fees, against any losses caused by or resulting from (i) your or your employees’ or agents’ negligence or intentional misconduct, (ii) your breach of these Terms and Conditions, or (iii) your or your employees’ or agents’ violation of applicable laws or regulations. You must also indemnify Broker from any attempts to recover from Broker by your insurance carrier or any other party. The obligation to defend includes payment of all reasonable costs of defense, together with all reasonable attorney fees, as they accrue.
Neither Party may assign or transfer these Terms and Conditions, in whole or in part, without the prior written consent of the other Party.
In the event that the operation of any portion of these Terms and Conditions results in a violation of any law, or any provision is determined by a court of competent jurisdiction to be invalid or unenforceable, the Parties agree that such portion or provision shall be severable and that the remaining provisions of the Agreement shall continue in full force and effect. The representations and obligations of the Parties shall survive the termination of these Terms and Conditions for any reason.
It is understood between Broker and You that Broker is not an agent for Carrier or You and shall remain at all times an independent contractor. You do not exercise or retain any control or supervision over Broker, its operations, employees, or Carrier. Broker does not exercise or retain any control or supervision over Carrier, its operations, employees or you.
Failure of either Party to insist upon performance of any of the terms, conditions or provisions of these Terms and Conditions, or to exercise any right or privilege herein, or the waiver of any breach of any of the terms, conditions or provisions of these Terms and Conditions, shall not be construed as thereafter waiving any such terms, conditions, provisions, rights or privileges, but the same shall continue and remain in full force and effect as if no forbearance or waiver had occurred.
Unless the Parties notify each other in writing of a change of address, any and all notices required or permitted to be given under these Terms and Conditions shall be made by Electronic Message with confirmed receipt, and shall be effective when so delivered.
Neither Party shall be liable to the other for failure to perform any of its obligations under these Terms and Conditions during any time in which such performance is prevented by fire, flood, or other natural disaster, war, pandemic, embargo, riot, civil disobedience, or the intervention of any government authority, or any other cause outside of the reasonable control of You or Broker, provided that the Party so prevented uses its best efforts to perform under these Terms and Conditions and provided further, that such Party provide reasonable notice to the other Party of such inability to perform. Performance requirements are extended by the amount of the delay except for payment obligations.
All questions concerning the construction, interpretation, validity and enforceability of these Terms and Conditions, whether in a court of law or in arbitration, shall be governed by and construed and enforced in accordance with the federal laws regarding transportation, where applicable, and otherwise by the laws of the State of Texas, without giving effect to any choice or conflict of law provision or rule that would cause the laws of any other jurisdiction to apply. The Parties agree to jurisdiction and venue in a United States Federal District Court in Texas, or if federal jurisdiction is not available, then in a State Court located in Texas.
Other than as required to comply with the law or legal process requiring disclosure, the Parties agree to the following:
i. In addition to Confidential Information protected by law, statutory or otherwise, the Parties agree that all of their financial information and that of their customers, including but not limited to freight and brokerage rates, amounts received for brokerage services, amounts of freight charges collected, freight volume requirements, as well as personal customer information, customer shipping or other logistics requirements shared or learned between the Parties and their customers, shall be treated as confidential, and shall not be disclosed or used for any reason without prior written consent. You specifically waive any rights You may have under 49 CFR Section 371.3.
i. Throughout the term of this Agreement, each Party authorizes the other Party to use its name, logo, or trademark, without notice to or consent of the other Party, in connection with promotional and other materials, that include, but are not limited to, brochures, internet website, press releases, advertising, investment materials (slide decks, printed materials, etc.), unless the Party provides written notice of the termination or limitation of this authorization with at least 60 days’ notice.