Niagara Bottling

ALL NIAGARA BOTTLING, LLC’S PURCHASE OF TRANSPORTATION AND/OR HAULING SERVICES, BROKERAGE SERVICES AND BIDDING PROCESS ARE EXPRESSLY CONDITIONED UPON CARRIER’S STRICT ACCEPTANCE OF THESE TERMS AND CONDITIONS

1. Terms & Conditions of Purchase. Niagara Bottling, LLC (hereinafter referred to as “Niagara”) hereby limits acceptance of all Awards, agreements, purchase orders and any and all bids of Niagara’s business to Carrier’s strict acceptance of the terms and conditions as set forth herein (“Standard Carrier T&C’s””). These Standard Carrier T&C’s, all Awards, agreements, purchase orders and any and all bids for Niagara’s business shall inure to the benefit of Niagara and any of its affiliates that elect to participate in the Transportation Services (as defined below) hereunder.
2.  Definitions. “Carrier” shall mean an independent contractor who furnishes motor carrier services to Niagara and represents that it is a duly registered carrier in interstate and intrastate commerce with the U.S. Department of Transportation and/or applicable state regulatory agencies. “Brokers” shall mean an independent contractor and freight broker who arranges for motor carrier Transportation Services for Niagara and represents all motor carriers in its performance of this Agreement are contractually required to be duly registered carriers in interstate and intrastate commerce and that it is a duly registered carrier in interstate and intrastate commerce with the U.S. Department of Transportation and/or applicable state regulatory agencies. Hereinafter, “Broker” and “Carrier” shall collectively be referred to as “Carrier.” “Lanes” shall mean movement of a load from Niagara’s facility to Niagara’s customer’s facility, as specified by Niagara. “Load” shall mean a single truckload. “Transportation Services” shall mean motor carrier services provided by Carrier for the transport, hauling or delivery of any commodity, including finished products, pallets, or Loads. “Award” shall mean document from Niagara to Carrier, signed by Carrier notifying Carrier of any Lane or Load awarded to Carrier, and Carrier’s acceptance of such an award. “Party” or “Parties” shall mean Niagara or Carrier individually or collectively.
3. Pricing. During the term as set forth by Niagara in its sole discretion, as described in any Award or agreement, Carrier agrees only to charge the rates set forth by Niagara (“Base Rate”) for the Transportation Services in Lanes and/or Loads as requested by Niagara as full and complete compensation for the Transportation Services being provided by Carrier. Should Niagara provide an Award to Carrier for additional Lanes and/or Loads to provide Transportation Services to, such additional Award will be subject to these Standard Carrier T&C’s.
4. Payment Terms. Prior to commencement of Transportation Services, and in order to receive payment from Niagara, Carrier must provide Niagara with a Certificate of Insurance (COI) in accordance with Section 16 herein. Carrier shall only invoice Niagara for awarded Lanes and/or Loads received from Niagara. Such invoice and all supporting documents shall be submitted promptly, following transport of any Load to Niagara via email at truckingbackup@niagarawater.com. Such invoices must include Carrier’s name and invoice number in the subject line. Each email shall only include one (1) invoice per email submission. Failure to comply with the terms of this section shall result in delay and/or non-payment of charges. Niagara will pay any undisputed portion of Carrier’s properly submitted invoice within thirty (30) days of receipt of invoice and supporting documentation. Any and all payments by Niagara shall be deemed effective as of the date of postmark. Niagara shall have no liability for invoices that are not received within ninety (90) days of transport of any Load. Niagara shall have no liability for added, balance due, accessorial or any other charges of any nature which are not provided by the Award and which are not submitted within ninety (90) days from date of transport of a Load. Carrier agrees to apply payment to the amount due for the specified invoice regardless of whether there are earlier unpaid invoices. In the event any payment becomes overdue, Carrier shall provide written notice to nonpayment via certified mail to: Attn: Vice President of Legal Affairs, Niagara Bottling, LLC, 2560 E. Philadelphia Street, Ontario, California 91761. Carrier shall also notify Niagara by sending emails to the following: Debra Morrison at dmorrison@niagarawater.com and transprocurement@niagarawater.com. Upon actual receipt of certified mail notice, Niagara shall have ten (10) days to cure any late payment. At no time during this cure period will Niagara be deemed in breach. In the event of timely cure by Niagara, Niagara shall not be deemed in breach and shall not be charged any late charges, late fees, penalties, or interest. In no event shall Carrier have a lien on any of Niagara’s Loads, products or finished goods to secure payment of any invoices or charges. Carrier agrees to comply with all technological requirements of Niagara and its customers, including but not limited to 100% transactional compliance and specifically 204-Load Tender, 210-Carrier Invoice, 214-Shipment Status, and 990-Load Tender Response. Carrier shall be solely responsible for any and all costs for and associated with such technology.
5. Award Acceptance. Once Carrier signs and accepts any Award, Carrier agrees to transport a minimum of 99% of any tender offers for such Lane(s). If Carrier falls below this 99% threshold, Carrier agrees be liable for all damages arising due to Carrier’s failure, plus a fee equal to 4% of Carrier’s Base Rate. Such damages includes, but are not limited to, costs incurred by Niagara in excess of the Base Rate to secure delivery of any Loads described in such tender offer by a third party carrier. Should Niagara subsequently offer tenders for Loads not included in the Award or agreement and Carrier agrees to transport such Loads, Carrier agrees to transport such Load at the same rates as the delivery of Loads in the Award unless otherwise agreed to in writing by the Parties. Carrier must notify Niagara within ninety (90) minutes of receipt of Niagara’s tender offer that Carrier has: (a) received the tender offer; and (b) confirm that it will transport the Load.
6. Carrier Performance. Carrier understands that all Transportation Services must be performed in a timely fashion. Carrier is solely responsible for scheduling and complying with any and all deliveries and delivery times as requested by Niagara’s customers. a) Pick-up of Loads. Carrier shall maintain a monthly on-time pick up appoint rate of a minimum of 90% from the designated Niagara facility through the entire term of the Award. If Carrier’s monthly pick-up rate falls below 90%, Carrier agrees to a $50 fee for every late pick-up appointment for the previous month that caused Carrier to fall below the 90% pick-up rate. b) Delivery of Loads. Carrier shall maintain a 98% monthly rate for on-time delivery of Loads through the entire term of the Award. On-time delivery of Loads shall mean Loads delivered within thirty (30) minutes of a scheduled delivery appointment time. If Carrier’s monthly on-time delivery rate to Niagara or its customer’s locations falls below 98%, Carrier agrees to a $100 fee for every late and/or missed delivery appointment for the previous month that caused Carrier to fall below the 98% delivery rate. c) Payload: Carrier warrants that it has the ability to ship Loads that are 45,600 pounds or less. Niagara may scale and weigh all Loads and shall provide a pallet count for all Loads. In accepting any Load, Carrier agrees to count all pallet quantities prior to sealing the trailer. Niagara will make its best effort to produce a tactical forecast of the projected volume of Loads and weights for the upcoming month. In the event Niagara requests Carrier to haul 20% more of its projected daily volume, Carrier shall comply with such a request. In the event Carrier is unable to haul Niagara’s scale and weighted Load, causing Niagara to remove any products or pallets, Carrier agrees that Niagara may deduct a fee of $100 per occurrence from Carrier’s corresponding purchase order. d) Equipment. Carrier shall ensure that all equipment used in connection with performing Transporting Services be clean, odor-free, dry, leak-proof, and free of contamination and/or infestation. Carrier warrants that no motor vehicle, trailer, tractor or other equipment that will be used for Transportation Services for Niagara has been used to transport refuse, garbage, trash or solid or liquid waste of any kind, or any types of hazardous materials. Carrier agrees that any breach of this provision may result in substantial harm to Niagara’s products and/or customers, and may have detrimental effect on Niagara’s reputation and image in the marketplace, product integrity and goodwill. Niagara, may, at its sole discretion, reject any and all trailers for issues including, but not limited to, odors, debris from prior shipment, or lack of structural integrity. Carriers shall not be permitted more than a 1% trailer rejection rate per month. e) Operation. Carrier shall ensure and bear all costs and expenses related to operation of its motor vehicles, trailers, tractors and equipment (“Carrier Equipment”), including ensuring that only fully qualified and licensed personnel operate any Carrier Equipment in accordance to, or as required by all applicable local, state and/or federal laws, regulations and authorities. f) Customer Service. Carrier, at its sole expense, must maintain and make available a telephone line for customer service to Niagara. Such customer service line will be operational twenty-four hours a day, seven days a week, and shall respond within thirty (30) minutes of contact by Niagara.
7. Documentation. With respect to the following documents, Carrier agrees to maintain the documents as follows: a) Daily reports: Carrier shall provide Niagara daily reports regarding the status of all Loads and delivery times; b) Proof of Delivery (POD): Carrier shall provide Niagara free of charge with any and all PODs within 48-hours of delivery of any Load, and shall maintain all such PODs for at least twelve (12) months from the date of delivery, or for a period as proscribed by law; c) Bill of Lading (BOL): Carrier agrees that Niagara’s bill of lading shall be considered: (i) an acceptable form of receipt hereunder, and (ii) specific shipping instructions. These Standard Carrier T&C’s shall be incorporated by reference into each and every such BOL and in the event of an inconsistency, these Standard Carrier T&C’s shall control; and d) Supporting documents for Accessorial charges: Carrier agrees to provide all documents in accordance with Section 18 of these Standard Terms and Conditions.
8. Carrier Failure to provide Proof of Delivery (POD). In the event Carrier fails to provide a POD within 48 hours of delivery, Niagara shall have the right to deduct all amounts paid for Transportation Services, or demand payment for the amount of the Transportation Service invoice. Additionally, if Carrier cannot provide the POD within fourteen (14) days of delivery, Niagara may charge Carrier for the cost of any of Niagara’s customer’s invoice for product not paid. Alternatively, if Niagara receives a refusal to pay for a Load from its customer, Niagara will provide Carrier of evidence of customer refusal and proof of loss, and shall charge Carrier the cost of customer’s invoice for product.
9. Assignment and Subcontracting. Carrier agrees not to interline, use other motor carriers or brokers, or to use “substituted services” or otherwise assign or subcontract any portion of any Award, agreement or purchase order without the express written consent of Niagara. If, with the express written permission of Niagara, Carrier elects to use a delivery agent or subcontract the transportation of a Load, Carrier shall be the sole bearer of any costs associated with the delivery agent or subcontractor and agrees to be fully liable for any loss, damage, or delay to transportation of any such Loads while in this third party carrier’s care, custody and/or control. Carrier understands and agrees that all payments made by Niagara are conditioned upon Niagara’s receipt of a conditional waiver and release executed by Carrier and an unconditional waiver and release executed by each Additional Party. Carrier agrees to defend, indemnify and hold Niagara and its customer’s harmless from any and all claims of any Additional Party for payment. Carrier acknowledges and agrees that Carrier shall remain, at all times, fully liable for all Additional Parties. Carrier warrants that it shall ensure that Additional Parties comply with and adhere to all warranties, representations, obligations, terms and conditions contained herein.
10. Compliance with Law. At all times during the Award or agreement term or its relationship with Niagara, Carrier shall comply with all applicable state and federal laws. Additionally, Carrier shall operate all Carrier Equipment in compliance with industry standard, and shall maintain and operate the same such that Carrier’s safety rating does not fall below “satisfactory” under the Federal Motor Carrier Safety Administration standards. In the event that Carrier’s safety rating falls below a “satisfactory”, Carrier shall notify Niagara immediately, and Niagara will have the immediate right to terminate any Award, agreement or purchase order upon notice to Carrier.
11. Indemnification: a) Carrier agrees to indemnify, defend, and hold Niagara, its affiliates, and representatives harmless from and against any and all claims arising out of or related to any Award, agreement, or purchase order and/or Transportation Services that are the subject thereof, including but not limited to: (i) any bodily injury or property damage claims, and any liability, loss, cost, expense, or other damages (including reasonable attorney fees) brought about by any injury of any kind suffered by any person or property as a result of any act, neglect, default, omission of either the Carrier, Carrier’s agents, employees, affiliates, subcontractors, or any third party for whose actions Carrier is responsible (“Carrier Actors”), or Niagara, Niagara’s agents, employees, affiliates, subcontractors or other representatives; (ii) any negligent act, misfeasance, or nonfeasance by Carrier, or Carrier Actors; (iii) any harm, injury, damage, or loss arising out of or in connection with the Transportation Services provided; (iv) third party consumer claims, suits, and/or demands, including costs and expenses of investigation and settlement and attorneys’ fees and expenses, to the extent such claims arise from: (a) any act or omission by Carrier or Carrier Actors relating to or affecting the condition, quality, or character of any Goods or Services provided; or (b) trademark, copyright, trade dress, or patent infringement. Carrier acknowledges and agrees that Carrier must receive Niagara’s express written approval prior to settling any claim or lawsuit. Niagara reserves the right at any time to control its own defense. b) Should Carrier receive (or become aware of) any demand, service of process, notice, action, settlement, summons, complaint or the like from or by a third party alleging that a Party hereto is responsible for some injury, act, omission, breach, negligence, claim, loss, violation of law, settlement, cost, expense, obligation, liability, damage, recovery, deficiency or otherwise, including, without limitation, interest, penalties, reasonable attorney fees and costs (each, a “Claim”) that arises out of, results from, or in any way relates to the subject matter of these Standard Terms and Conditions, an Award, agreement or purchase order, then Carrier shall immediately (but no later than five (5) business days after receipt, or becoming aware, of a third party Claim) provide Niagara with written notice regarding each third party Claim of which Carrier is or becomes aware. Carrier covenants and agrees that should Carrier fail to provide Niagara with timely written notice regarding any third party Claim, Carrier hereby generally and expressly waives, relinquishes and releases, and agrees to hold harmless, Niagara from and against any and all Claims capable of being asserted by Carrier against Niagara in connection therewith. c) In the event Carrier utilizes any party (“Additional Party”) regardless of that party’s legal designation of contractor, subcontractor, materials supplier, agent, or otherwise, for the purpose of performing any Transportation Services, Carrier shall submit to Niagara written notice of (i) each Additional Party, (ii) the duties each Additional Party will undertake, (iii) the amount of compensation each Additional Party is to receive from Carrier, and (iv) Carrier’s compensation schedule and payment terms with the Additional Party. Carrier understands submitting this written notice as set forth above is a condition precedent to payment. Such written notice must be sent to Vice President of Legal Affairs via email and certified mail (1) panderson@niagarawater.com, (2) 2560 E. Philadelphia St., Ontario, CA 91761. g) Waiver. Niagara’s delay, failure or partial exercise of any provision herein or waiver of any breach, right or remedy contained in or granted by any Award, agreement or purchase order shall not be deemed a waiver of any breach, right or remedy unless expressly stated as such by Niagara in writing signed by an authorized representative of Niagara, and then such waiver shall be limited solely to its specific terms.
12. Limitation of Liability. In no event shall Niagara be liable for any punitive, exemplary, special, incidental, indirect or consequential damages of any kind (including, but not limited to loss of profits, loss of reputation, and/or loss of current or prospective business advantage, when where such losses are characterized as direct damages) arising out of or in any way related to the relationship and/or dealings between Niagara and Carrier regardless of whether the claim under which damages are sought is based upon contract, tort, negligence, strict liability or otherwise, and regardless of whether the parties have been advised of the possibility of such damages at the time of contracting or otherwise. Under no circumstances shall Niagara’s maximum total liability, if any, arising out of or in any way related to the relationship and/or dealings between Niagara and Carrier exceed the amounts paid and/or due to Carrier by Niagara under any relationship between the Parties, Award, agreement or purchase order.
13. Liability for Loss, Damage or Delay to Loads. a) Carrier agrees that in the transportation of all Loads hereunder, it shall assume, and does assume, the liability of an interstate motor carrier, as provided by 49 U.S.C. § 14706, with such liability to exist from the time of the receipt of any of said goods by Carrier until proper delivery has been made to the location specified by Niagara. The Parties expressly decline to limit the value of the property as permitted by 49 U.S.C. § 14706(c). All claims will be filed and resolved in accordance with the ICC regulations in 49 CFR Part 370. b) All Loads tendered to Carrier for transportation will be palletized and stretch wrapped. Carrier reserves the right to refuse to accept any Load that is not so packaged. c) Parties agree that each incident of transportation of product under any Award, agreement or purchase order shall be evidenced by a BOL signed by Carrier and Niagara showing the kind, quantity, value and condition of products or goods received and delivered by Carrier at the loading and unloading points respectively. Carrier’s duties and responsibilities under any Award, agreement or purchase order between the Parties for the transport of any Load evidenced by such receipt shall commence when Carrier takes possession and control of Niagara’s property or upon execution of such receipt by Niagara, whichever occurs first, and shall end when consignee/customer/buyer signs a delivery receipt and Carrier delivers Niagara’s property. Carrier shall inspect all Loads prior to accepting possession and control and shall document any evidence of damage on the BOL. If Carrier does not indicate damage on the BOL at the time of possession and immediately communicates the existence of such damage to Niagara, Carrier agrees that damage documented upon delivery presumptively occurred while the Load was in Carrier’s custody and possession. d) The time limit within which Niagara must file a claim for damaged or lost products or goods against Carrier shall be nine (9) months from the date of delivery or within nine (9) months of the reasonably anticipated date of delivery in the event of a complete loss. All claims shall be paid, settled or disallowed by Carrier within ninety (90) days of filing. Disallowance shall state a lawful reason for declining to accept responsibility for the claim, and shall be stated by Carrier, not its insurer. In no event shall Niagara be required to work with Carrier’s insurer directly. Niagara agrees to immediately provide written notice of claim to Carrier showing kind, quantity, value and proof of carriage as evidenced by a signed BOL. e) In the event of Carrier’s breach, or alleged breach, as determined solely by Niagara, of any provision in any Award, agreement or purchase order between the Parties, in addition to all other remedies in law or equity that are available to Niagara, Carrier shall be responsible for all reasonable attorneys’ fees and costs incurred by Niagara as a result of said breach or alleged breach.
14. Product Loss or Damage. a) Rejected Load. In the event the Niagara’s customer rejects the delivery of any Load due to the fault of Carrier, Carrier must return the Load to the pick-up origin designated by Niagara at no cost. In the event Niagara’s customer rejects the delivery of a Load due to no fault of the Carrier, Niagara shall pay a transportation rate equal to the rate Niagara paid Carrier to transport the Load to Niagara’s customer. Any and all rejected Loads not scheduled for redelivery must be delivered back to Niagara’s pick-up origin within five (5) days from the time/date of initial pick-up. Any Load being transported back to Niagara’s pick-up origin must be secured with either a seal or padlock and a confirmation must be sent via email to executionteam@niagarawater.com. Return charges for shorthaul clusters will be returned at half the published rate of the Load. For long haul cluster freight, return charges will not exceed the total all-in rate of the Load. b) Visual Damage to Products. 1) For damages to individual cases of product up to less than one pallet, Niagara’s customer must note the damage on the BOL, and customer or Carrier may dispose of or donate damaged cases of product. 2) For damage to one or more pallets, Niagara’s customer must note the damage on the BOL. If the Load is rejected and remains in the custody of Carrier, Carrier must immediately contact Niagara Dispatch for deposition instructions. Carrier must provide the purchase order number, date and time of single delivery, number of pallets damaged and/or refused, bottle code, any photographs, a brief description of the damage, and contact information, including contact name, phone number, email and facsimile number. c) Concealed Damage to Products. If Niagara’s customer reports concealed damage to the product, pallet and/or Load, such damage will be investigated to determine liability. If the investigation concludes that Carrier is responsible for the damage, Carrier will be notified of Niagara’s intent to file a claim and will be given the opportunity to inspect the product, pallet, or Load prior to disposition for disposal or donation. d) Product Loss/Delay. In the event Carrier is unable to execute delivery for reasons such as theft of Load, vehicular accident, or delay impacting the product’s integrity (i.e., non-delivery of Load/products to its specified destination within five (5) calendar days), recovery of loss will be executed pursuant to 49 CFR 370. e) Donation/Disposal. Due to product liability, trademark protection, and/or licensing agreements for private label stock, any distressed, damaged or otherwise rejected shipment that is not returned to a Niagara facility, for whatever reason, must be properly disposed of or donated in accordance with Niagara’s express written instruction. IN NO CIRCUMSTANCE CAN ANY GOODS, PRODUCTS OR INTELLECTUAL PROPERTY EVER BE RE-SOLD. Carrier understands and agrees that in no event shall Carrier nor any Carrier Actors, without the prior express written consent of Niagara: (i) cause, suffer or permit the transfer, salvage, disposal and/or donation of any Goods, Products or Intellectual Property, and/or (ii) offer to transfer, salvage, dispose of and/or donate any Goods, Products or Intellectual Property, whether as salvage or otherwise. Notwithstanding the foregoing, if there is a distressed, damaged or otherwise rejected Load of product that is not returned to a Niagara facility, and Niagara gives express written permission to a Carrier to dispose of or donate the goods or products, Niagara shall require written verification, signed by the Carrier’s authorized agent, which provides exact details as to the final disposition as well as copies of donation/disposal receipts as backup. f) Claim Settlement. In order to close a freight claim as settled, one of the following conclusions must be obtained: • Granted: paid in full • Declined: written declination including a specific legal reason • Compromised: written offer to settle for less than the original claim amount, including legal rationale for offer to pay less than full amount claimed g) Payment. Any and all payments from Carrier to Niagara in settlement of a claim must be made, in full, and sent to: Niagara Bottling, LLC 2560 E. Philadelphia Street Ontario, CA 91761 Attention: Claims Specialist Niagara’s claim reference number must appear on the check. A partial payment check will not be accepted and will not be cashed as a granted or settled claim.
15. Seals. Carrier agrees to comply with the Food and Drug Administration and industry standards with regard to seals as codified in FDA 21 CFR 110.93, which states that all transportation of food shall be under conditions to protect that food. Storage and transportation of finished food shall be under conditions that will protect the food against physical, chemical, and microbial contamination as well as against deterioration of the food and the container, Carrier further agrees to use standard industry practices, including, but not limited to ensuring that any and all trailers from or on behalf of Niagara will be kept sealed while transporting all goods. Carrier must confirm that the seal has been secured on the trailer and that the seal number is recorded on the BOL by Niagara prior to leaving any of Niagara’s facilities. If the seal is required to be broken at any time during transport, Carrier must first seek Niagara’s authorization. Carrier must then notify Niagara that the trailer has been re-sealed by sending an e-mail to executionteam@niagarawater.com. In the event Niagara’s customer breaks the seal, rejects the Load, and does not provide Carrier with a new seal to re-seal the trailer, Niagara’s customer or Carrier must add a lock to the trailer to secure the Load. It is Carrier’s sole responsibility to ensure that the trailer is re-sealed or a lock is added to the trailer prior to leaving Niagara’s customer’s facilities. No Loads will be accepted by Niagara without a seal or lock on the trailer.
16. Insurance. During the term of all Awards, agreements or purchase orders, and after any termination of or expiration, and for as long as Carrier owes any obligation to Niagara and/or any statute of limitations for any potential claim that Niagara may have against Carrier remains unexpired, Carrier and any Carrier Actors shall maintain all insurance and/or bonds required by statute, law and any Award, agreement or purchase order with minimum insurance limits consistent with Niagara’s insurance requirements set forth at the end of this Section 16. Should insurance policy limits be exhausted or should Carrier or any Carrier Actors fail to maintain the required insurance coverage, neither Carrier nor any Carrier Actor will in any way be relieved from liability provided for herein to Niagara should a loss occur. Carrier shall furnish Niagara with a certificate evidencing the aforementioned coverage limits via email to insurancecerts@niagarawater.com. Such certificate shall provide for thirty (30) days written notice to Niagara in the event of cancellation. All certificates of insurance shall name Niagara Bottling, LLC and its parents, subsidiaries, employees, agents, affiliates and assigns as an additional insured by policy endorsement (on both Carrier’s General Liability Policy, Automobile Liability Policy and Cargo Insurance Policy) and waive all rights of subrogation against Niagara, its parent, director, officers, employees, stockholders, subsidiaries and affiliates with regard to Employee Liability and Workers Compensation. For any claims relating to an Agreement, agreement or purchase order, the Carrier’s insurance shall be deemed to be primary and not contributing to or in excess of any similar coverage purchased by Niagara. Carrier hereby acknowledges that naming Niagara Bottling, LLC and its parents, subsidiaries, employees, agents, affiliates and assigns as an additional insured by policy endorsement is a condition precedent to payment by Niagara. For the avoidance of doubt, Niagara will not be required to submit payment until the requirements of this provision have been met. However, failure of Niagara to demand any certificates or to identify any deficiency in the insurance provided shall not be construed as or deemed to be a waiver of the Carrier’s (or its agents or subcontractors) obligation to maintain such insurance. If any of the coverages are required to remain in force after termination of the Agreement, Carrier shall submit additional certificates evidencing continuation of coverage until such obligation ends. Niagara’s Minimum Insurance Requirements: Commercial General Liability $2,000,000 per occurrence; $5,000,000 aggregate Auto Liability $3,000,000 combined single limit Cargo $100,000 Employee Liability/Workman’s Comp $2,000,000/Statutory In addition to the general insurance requirements provided in the above table, customized insurance requirements for specific Seller-types are attached hereto and incorporated herein by this reference.
17. Termination. a) Any Award, agreement or purchase order shall commence on the date such Award is given, agreement is entered into or purchase order is issued, and shall automatically renew on a year-to-year basis until terminated, provided that Carrier is performing in accordance with these Carrier Standard T&C’s, the Award, agreement or purchase order, and that Carrier continues to provide Niagara the lowest available rates in the market and the lowest rates and/or most favorable terms at which Carrier offers its service to any third party shipper in the same functional level of the trade as Niagara (“Most Favorable Rates”). The Parties agree to meet in good faith to discuss existing rates at a time no earlier than twelve (12) months after the Award is issued or an agreement is entered into by the Parties. Such discussions may result in a rate adjustment if, and only if, the adjustment is in reference to driver pay, and only upon mutual written consent by both Parties. Notwithstanding the foregoing, Carrier guarantees that any rate increase will not exceed 2% of the current rate. In the event that Carrier does not provide Niagara with the Most Favorable Rates, Niagara shall have the right to terminate by giving thirty (30) days written notice to Carrier. b) If during the term specified by any Award, agreement, or purchase order either party (i) files a petition in bankruptcy or has a petition in bankruptcy filed against it that is not dismissed within sixty (60) days, or (ii) makes a general assignment for the benefit of creditors, then in any such case the non-bankrupt party may terminate any Award, agreement or purchase order by giving written notice of such effect to the bankrupt party. c) If all or any portion of Carrier’s registration, as required by any Award, agreement or purchase order, is revoked, canceled, suspended, or discontinued by operation of law or otherwise (“Registration Issue”), or if Carrier’s insurance policies are canceled, reduced or otherwise invalidated (“Insurance Issue”), Carrier shall promptly notify Niagara, and in no case later than forty-eight (48) hours after Carrier learns of any such Registration or Insurance Issue and Niagara shall have the right to terminate any Award, agreement or purchase order immediately and/ or collect reimbursement for all expenses it has incurred in preparation of and/ or as a result of any Award, agreement or purchase order from Carrier. Carrier’s notification to Niagara in regards to the above shall in no way serve as a waiver by Niagara of its right to construe such as a breach of any Award, agreement or purchase order and shall in no way limit Niagara’s right to pursue all remedies in law or equity as a result of such breach. d) If, in Niagara’s sole discretion, delays in transportation cause inconvenience and/or harm to Niagara’s business interests, or Carrier is otherwise in breach of any Award, agreement or purchase order, Niagara shall provide written notice to Carrier outlining the delay and resulting or anticipated harm and/or breach. If the deficiencies and/or breach remain following a period of thirty (30) days from the date written notice was provided, as is measured as of the date specified on the notice, Niagara may terminate any Award, agreement or purchase order upon thirty (30) days written notice to Carrier. e) In the event of any discontinuation and/or revision to any regulations and/or laws in the United States (or any other country where Carrier services Niagara), and/or if Niagara, in its sole discretion, determines that the services contemplated in any Award, agreement or purchase order are no longer necessary or required and/or that Niagara’s course of business strategy has changed, Niagara may terminate any Award, agreement or purchase order in part or in its entirety upon sixty (60) days’ notice to Carrier. f) Notwithstanding anything to the contrary herein, Niagara shall have the ability to terminate any Award, agreement or purchase order for convenience with a sixty (60) day written notice, and Carrier shall have the ability to terminate any Award or agreement with one hundred eighty (180) day written notice to Niagara.
18. General Provisions. a) Confidentiality. Throughout the term of any Award, agreement or purchase order between the Parties, the Parties may come into possession of information or data which constitute trade secrets, know-how, confidential information or are otherwise considered to be secret (hereinafter “Confidential Information”). In consideration of the receipt of such Confidential Information, Parties agree to maintain such Confidential Information in the utmost of confidence, use such Confidential Information solely in connection with the business relationship established hereunder and take all measures reasonable and appropriate to protect such Confidential Information.Severability. If any phrase, clause, sentence, or other provision contained in these Standard Carrier T&C’s, or any Award, agreement or purchase order shall violate any applicable statute, ordinance, rule or law, are deemed inoperative or unenforceable then the same shall be deemed severed here, to the extent of such violation; provided, however, that the remainder of these Standard Carrier T&C’s, or any Award, agreement or purchase order shall remain in effect. c) Notices. Except as specifically provided herein, any notices required hereunder shall become effective when delivered personally or sent by registered mail, certified mail or overnight courier service to the Parties at the their respective addresses. Notice shall be deemed given upon personal delivery or on the receipt of registered, certified or overnight mail. Notices to Niagara shall be sent to: Niagara Bottling, LLC, 2560 E. Philadelphia Street, Ontario, California 91761, Attn: Vice President of Legal Affairs and via email to panderson@nigarawater.com. d) Anti-Kickback. Carrier will not make any payment or transfer anything of value, directly or indirectly, to any employee of Niagara. It is the intent of the parties that no payments or transfers of anything of value shall be made which may have the purpose or effect (real or perceived) of bribery, acceptance of or acquiescence in kickbacks or other improper means of obtaining business. f) Inspection. Upon request by Niagara, any duly authorized representative of Niagara shall, until two (2) years after final payment under an Award, agreement or purchase order between the Parties, have access to and right to examine directly pertinent books, papers, documents, accounts and records of Carrier involving transactions between the Parties. g) Independent Contractor. Carrier shall act as an independent contractor and not as an agent or employee of Niagara. j) Mitigation of Damages. In the event that Carrier is unable to perform any obligation, in whole or in part, under any Award, agreement or purchase order between the Parties, Niagara shall be entitled to purchase the requisite Transportation Services from another available source and Carrier will be liable for any additional costs incurred by Niagara. k) Force Majeure. In the event of storms, acts of God, riots, civil insurrection, flood, strike, war or any other force majeure event that reduces or otherwise limits Carrier’s Transportation Service or delivery capabilities, Carrier shall use best efforts to meet its commitments to Niagara in accordance with any Award, agreement or purchase order. n) These Standard Carrier T&C’s and/or any Award, agreement or purchase order shall exclusively govern any relationship between Niagara and Carrier. To the extent that there is any conflict between these Standard Carrier T&C’s and/or any Award, agreement or purchase order, these Standard Carrier T&C’s shall control. Any additional or contrary terms set forth in any of the Parties’ purchase orders, bills of lading, invoices, or other documentation shall have no force or effect. o) Applicable Law. These Standard Carrier T&C’s and/or any Award, agreement or purchase order shall be interpreted under the laws of the State of California. Any action arising out of or related to these Standard Carrier T&C’s and/or any Award, agreement or purchase order between the Parties or any of the dealings between the Parties hereto shall be brought and venued in the State or Federal courts located in San Bernardino County, California. p) Dispute Resolution. In the event of any dispute arising out of or related to these Standard Carrier T&C’s and/or any Award, agreement or purchase order between the Parties, the Parties shall make a good faith effort, within thirty (30) days of such dispute, to meet in person to discuss potential amicable resolution of this dispute. During this time, where the Parties are exploring resolution of the dispute, Niagara shall not be in breach due to nonpayment of any invoice. This provision shall not be interpreted to release, postpone or alter any of Carrier’s obligations set forth herein. q) Attorneys’ Fees. In the event a dispute cannot be resolved with respect to these Standard Carrier T&C’s and/or any Award, agreement or purchase order between the Parties or the Transportation Services contemplated herein, the prevailing Party in such dispute shall be entitled to recover all actual and reasonable expenses including, without limitation, reasonable attorneys’ fees and expenses incurred in ascertaining such Party’s rights in preparing to enforce, or enforcing such Party’s rights under these Standard Carrier T&C’s and/or any Award, agreement or purchase, whether or not it was necessary for such party to institute a suit in a court of law. Accessorial Terms The following shall apply to all Awards and agreements between the Parties for Transportation Services: a) On-Time Requirement. In the event that Carrier’s driver arrives between the window of thirty (30) minutes before or thirty (30) minutes after any pick-up appointment, Niagara shall check-in and Load Carrier’s trailer. If Carrier’s driver arrives between the window of thirty-one (31) minutes to two (2) hours after any pick-up appointment, no accessorial charges or fees will be owed by Niagara, and Niagara will make commercially reasonable efforts to check-in and Load Carrier’s trailer. In the even that Carrier’s driver arrives to any pick-up appointment over two (2) hours late, no accessorial charges or fees will be paid by Niagara to Carrier, and Niagara may, at its sole discretion, reject and not Load the trailer, and assess no show charges against Carrier. b) Free Wait Time. Two (2) hours of free waiting time will be honored by the Carrier at both origin and destination. c) Detention Rates. Niagara shall pay detention rates for pick-up from Niagara facility or delivery to Niagara’s customer at a rate not to exceed $50/hour after two (2) hours of free waiting time, which shall not to exceed a total of $250.00 per day. Detention rates on all invoices must correspond with Niagara’s BOL in and out times, and be evidenced by both in and out times and show the location in which the charges were accrued. No detention rate shall be owed if Carrier is more than thirty (30) minutes late for its pick-up or delivery appointment. d) Drop Trailer Detention. In the event that Carrier’s trailer has been dropped at Niagara’s customer location and has not been unloaded by customer within forty-eight (48) hours, Carrier shall immediately notify Niagara. Upon notification to Niagara, Niagara shall have twenty-four (24) hours to resolve the issue and Carrier agrees not to charge Niagara with any fees or penalties. In the event Carrier’s trailer is not released after this time period, Niagara agrees to pay Carrier a drop trailer detention rate not to exceed $40 per day. Carrier shall monitor the status of any detained trailer and provide Niagara with daily notifications as to the status of such detained trailer via email to executionteam@niagarawater.com. Release of a trailer shall immediately end all drop trailer detention rate charges to Niagara. Carrier shall invoice Niagara separately for any drop trailer detention rates. Carrier will agree to communicate any potential issue leading to an accessorial charge at the time an incident occurs in order to allow Niagara an opportunity to resolve the issue. All assessorial charges requested 24 hours after an incident has occurred will not be approved. Niagara will have the sole discretion to approve any accessorial charges caused by weather or force majeure. e) Stop-off Charges. Not to exceed $50.00 per additional stop. f) Layover Charges: Not to exceed of $250.00 per day. g) In no event shall Carrier be able to charge Niagara both a detention charge and a layover charge, nor shall Carrier charge Niagara both detention and TONU charges h) Truck Order Not Used (“TONU”). TONU charge shall not exceed $250. In no event will TONU charge exceed the cost of the products being transported. Carrier agrees that it shall not issue any TONU charges if 1) Carrier’s driver leaves the pick-up location on his own accord, 2) if Carrier tells its driver to leave the pick-up location without contacting and coordinating a pick-up appointment with Niagara, or 3) if Carrier’s driver arrives more than thirty (30) minutes after their scheduled pick-up appointment time. i) No Show Charge. If Carrier fails to pick up a tender that Carrier previously accepted and fails to notify Niagara at least 12 hours prior to the schedule pick-up time, then Niagara may charge Carrier a no-show charge in the amount of $150 dollars or deduct the same from Carrier’s account with reference to the purchase order number for the tender of the Load. j) Lumper. If Carrier is prohibited from unloading a trailer and Customer requires the hiring of a Lumper, Niagara agrees to reimburse Carrier for any Lumper, provided Carrier provides the Lumper receipt for the exact amount charged by the lumper service, with no markup, to each invoice referencing the corresponding purchase order number. k) Driver Assist. If Niagara’s customer is requiring Carrier to unload via driver assist, the charge will not exceed $50 per Load. m) Re-Delivery. In the event Niagara’s customer rejects or refuses delivery of a Load due to the fault of the Carrier, such as arriving late for delivery appointment, Carrier must redeliver the Load at no further cost or expense to Niagara. In the event Niagara’s customer rejects or refuses delivery of a Load due to no fault of Carrier, Carrier agrees to redeliver the Load at a cost equal to or less than the cost of initial delivery. Carrier agrees to make every attempt to hold the Load in close proximity to Niagara’s customer’s delivery location. 1) Diversion Charges. In the event that Carrier attempts to deliver to a location as specified by Niagara, and the Load is rejected, Niagara reserves the right to divert Carrier’s driver to another customer location within 150 miles of the original delivery location. Niagara shall pay diversion costs in accordance to the following chart: