Oberon Freight
Terms and Conditions

The Terms and Conditions set forth herein shall apply to all shipments of freight that Oberon Freight (hereinafter “OF”) arranges to be transported by motor carrier.

Section 1 — Scope and Applicability of Terms and Conditions.

1.1 Applicability of Terms and Conditions By offering, tendering or referring freight to OF to be arranged to be hauled, all parties, whether such party is acting as a shipper, consignor, receiver, consignee, freight forwarder, broker, intermediary, 3PL, 4PL, carrier, freight agent or otherwise (all of which will be referred to hereafter for convenience as a “Customer”) acknowledge and agree that the terms and conditions set forth herein apply to any and all freight that Customer refers to OF. While OF will endeavor to send confirmation of tender of freight by written or electronic means (hereinafter a “Load Confirmation”) to Customer, which may incorporate by reference the terms and conditions set forth herein, the terms and conditions set forth herein shall nevertheless apply to all freight tendered or referred to OF to be arranged to be hauled, whether a Load Confirmation or other document or communication incorporates the terms and conditions set forth herein or not.

1.2 Acknowledgment of Broker Status By offering, tendering or referring freight to OF, Customer acknowledges and agrees that OF is an interstate property broker, as such term is defined in 49 U.S.C. S 13102(2) and 49 C.F.R. S 371.2(a); that OF acts solely as an interstate property broker (hereinafter “a broker”) in arranging for the transportation of freight by authorized motor carriers; and, that OF does not operate, nor holds itself out to be, either a motor carrier, a freight forwarder, a 3PL, a 4PL, an non-vessel ocean common carrier (“NVOCC”), a rail carrier, a shipper’s agent, a carrier’s agent, or any other type of entity, other than a broker as defined in 49 U.S.C. S 13102(2) and 49 C.F.R. S 371.2(a).

Section 2 — Services to be Provided by OF 

2.1 Arranging for Freight to be Transported via Motor Carrier. OF is an interstate property broker operating pursuant to authority granted to it to do so by the Federal Motor Carrier Safety Administration (“FMCSA”) under MC 1342616. As a broker, OF's responsibility is limited to arranging for, but not actually performing, transportation of freight. Upon Customer’s offer, tender or referral of freight to OF, if OF agrees to seek to arrange for transportation of such freight, OF will use its best efforts to arrange for such freight to be transported from its designated origin(s) to its appointed destination(s) by a motor carrier authorized to operate as such by the FMCSA and the United States Dept. of Transportation (“USDOT”). OF will confirm that any motor carrier with whom it arranges to haul Customer’s freight holds a current license and is authorized to operate as a motor carrier by the FMCSA and USDOT and that such motor carrier carries and has in place all insurance required to be carried under federal regulations for carriers of non-hazardous materials. OF may, but is not required to, also take such other measures as OF deems appropriate with respect to selection of motor carriers to transport Customer’s freight. OF reserves the right to decline or refuse to arrange for the transportation of any freight.

2.2 Information Pertaining to Freight. Customer will provide OF timely and accurate information regarding the subject cargo, including, but not limited to, pick-up and delivery locations, description of the cargo, including, but not limited to, type, dimensions, weight, special handling, temperature, storage, and/or security requirements, and other pertinent information regarding the cargo. All rate quotes and other pricing by OF are prepared based upon the type of freight, dimensions and weight, and other information pertaining to the freight provided by Customer. Different equipment and different federal, state, and local laws will apply when the cargo to be moved exceeds certain width, length, height and/or weight limits or is of different type than that described by Customer. In such situations, the type of equipment necessary to complete the move can change and the costs of transporting the freight can increase substantially due to both changes in types of equipment and the need for over-weight/over-dimensional permits, pilot cars, pole cars, route surveys, specialized or alternative routing, restricted hours for transport, utility company support in moving or disconnecting overhead power lines, etc., state highway patrol support, local city planning support, and/or various other requirements (hereinafter “permit costs”). If the type of freight, actual weight or dimensions, or other handling requirements of the freight to be transported are different than originally represented to OF, OF reserves the right to add such costs, plus a reasonable mark-up on such costs, to the quoted amount to arrange for transportation of the freight.

2.3 OF Broker’s Bond. OF will at all times maintain a broker’s security bond in the minimum amount required by law. Currently, the law requires that a broker maintain a security bond or broker’s trust fund in the amount of at least $10,000. OF currently maintains a broker’s security bond in the amount of $75,000.

2.4 Agreements with Carriers. OF will endeavor in each case to enter into a written agreement with the carriers with whom it arranges to haul Customer’s freight, which, among other things, will define the roles and terms that OF and such carrier will undertake with respect to such freight. Customer may request that OF provides Customer with a copy the form agreement that OF typically enters into with carriers, although Customer must recognize that the terms of OF's agreements with carriers may vary from time-to-time.

2.5 Payment to Carriers for Freight Charges. OF will be responsible to pay each of the carriers with whom it arranges to transport Customer’s freight the appropriate amount of freight charges to be paid to such carriers. OF and Carrier agree that all freight charge payments mutually agreed to in OF's epay payment system are final. OF typically requires such carriers to agree in writing to waive and any all claims against Customer or others (other than OF) for payment of freight charges and to agree that such carriers will look exclusively to OF for payment of freight charges. OF will indemnify and hold harmless Customer from claims for freight charges from any carrier with whom OF arranges to transport Customer’s freight up to the amount of freight charges that OF has agreed in writing to pay such carriers.

2.6 Bills of Lading. OF's role with respect to any freight tendered is that of a broker. Accordingly, each carrier with whom OF arranges to haul Customer’s freight is required to issue or adopt a bill of lading in compliance with 49 C.F.R. S 373.101. Such carrier’s name and MC# should be listed on any and all bills of lading. If OF's name is inadvertently or otherwise listed on a bill of lading or other shipping document as the carrier or in any capacity, other than as a “third-party bill to” party or as a broker, such listing shall be deemed to be for convenience only and shall not change, alter, modify or be construed to change or modify OF's role as an interstate property broker only respect to any load of freight.

2.7 No Authority to Control the Means by which Carrier Performs Services. Customer acknowledges that OF's role is simply to arrange for transportation of freight by a licensed motor carrier. Neither OF nor Customer has any right to control, nor will OF or Customer control, the means by or manner in which any carrier engaged by OF performs its functions in transporting and delivering the subject freight. The means and manner by which a carrier accomplishes the task of delivery the subject freight is in the carrier’s sole discretion. OF cannot and shall not exercise any control over the manner in which a carrier performs its services or a carrier’s operations, nor does OF retain any right to control or otherwise supervise a carrier or a carrier’s employees or other agents. A carrier engaged by OF shall be solely responsible for any and all management, control, governance and discipline of such carrier’s employees, agents, owner/operators, and equipment; and OF has no power or authority to hire or terminate the employment of any of a carrier’s employees or other agents. Even though OF, Customer, shippers/consignors, consignees, or other persons or entities may from time-to-time provide a carrier with verbal or written instructions suggesting routes, types of equipment, methods of securing loads, methods of loading or unloading freight or other means of transporting and delivering the subject freight, such suggestions, if given, shall be for informational purposes only and the carrier shall retain the right to choose routes, times that the carrier will perform its services, employees, equipment to be used, methods of securing loads, methods of loading or unloading freight and all other means of transporting and delivering the freight. Even though a carrier may consider instructions, guidelines and/or other suggestions from OF, Customer, shippers/consignors and/or consignees, the carrier shall remain ultimately responsible to choose and control the method of loading, unloading, and securing the load and transporting the load and will do so in a manner that the same may be loaded, transported, and unloaded safely without damaging the load or endangering the public or any person or entity.

2.8 Independent Contractor Relationship with Carriers. OF's relationship to any carriers with whom it arranges to transport Customer’s freight is and shall at all times be that of an independent contractor and no facts, agreements or other considerations shall be construed to be inconsistent with that status. No term or provision of any agreement with a carrier or any act or omission of OF or a carrier shall be construed for any purpose to express or imply any joint venture, partnership, principal/agent, master/servant, fiduciary, employer/employee or other relationship between OF and a carrier, other than that of an independent contractor relationship. No employees or other agents of a carrier shall be construed under any circumstance to be the employees, servants, or agents of OF, Customer, the shipper/consignor, the consignee, or any “bill to” party. Neither a carrier, nor any of its employees or agents, shall have any authority to act on behalf of OF or to alter in any manner any contractual or other relationship of OF with Customer, shippers/consignors, consignees, or any other person or entity. Neither OF, nor any carrier are authorized to use the formal name, any business or trade name or any derivative thereof, nor any trademark or service mark of the other or of any other company with which either OF or a carrier may be affiliated. Any carrier that OF arranges to transport any of Customer’s freight shall bear all costs of and shall provide all labor, wages, payroll, equipment, fuel, maintenance, insurance, federal, state and local payroll taxes and any other taxes, unemployment insurance, pensions, social security payments, workers’ compensation insurance, and all other costs associated with transportation of the subject freight and performance of such carrier’s transportation services. OF shall not be liable for or responsible to pay any such costs. Neither OF nor any carrier will hold itself out to be anything but an independent contractor with respect to each other and Customer shall not construe or assert OF or any carriers to be anything but independent contractors with respect to each other.

Section 3 — Cargo Loss or Damage and Delay Claims.

3.1 OF has no liability for any Cargo Loss or Damage or Delay Claims. Customer and any other parties holding or claiming any interest in freight that OF arranges to be transported acknowledge and agree that OF, being a broker, has no liability to any person or entity for any loss of or damage to any such freight and that OF has no liability to any person or entity for any delay in delivery of such freight. Customer, for itself and any of its customers, vendors, shippers, consignors, receivers, consignees, others claiming a beneficial or other interest in any subject freight and any of their respective insurers, successors, and assigns, does hereby agree to look solely to any carrier arranged by OF to transport any subject freight for recovery of any loss of or damage to such freight or delay in delivery of such freight and agrees to hold OF harmless with respect to any claims for loss of or damage to any freight tendered to OF or and to hold OF harmless with respect to any claims for delay in delivery of any such freight. Customer, for itself and any of its customers, vendors, shippers, consignors, receivers, consignees, others claiming a beneficial or other interest in any subject freight, and any of their respective insurers, successors, and assigns, does hereby acknowledge and agree that OF has not agreed (expressly, implicitly or otherwise) to be liable or responsible for loss of or damage to any subject freight and, Customer and any other persons or entities specifically acknowledge and agree that OF is not liable or responsible for the loss of or damage to any subject freight or for delay in delivery of the same. OF may, at OF's sole option, assist Customer or others in pursuing claims for loss of or damage to freight or delay in delivery of freight with the carrier; but, OF shall not be subject to any liability for doing so or otherwise with respect to any such claim. If OF does pay any amount to Customer or other interested party in connection with a cargo loss or damage or delay claim, OF shall be deemed to have been assigned all of Customer’s and/or such other party’s rights and interests in such claim. In the event of a claim, Shipper must discuss the issue with the driver while they are on-site and before unloading the product. Shipper will call their Agent/ Representative at Oberon Freight before unloading the product, write notes describing the damage on the BOL, and take pictures of the damaged product before it is unloaded. Shipper will email copies and pictures of all evidence of any claim that same day to info@oberonfreight.com. Any claim filed that is missing any of this required information is subject to denial at OF's sole discretion.

3.2 Limitation of Liability for Any Loss, Damage or Delay Claim. Should any court or other tribunal find OF to be liable for the loss of or damage to any freight that OF arranges to be hauled despite the provisions of the foregoing section 3.1, then, in any such event or case or for whatever reason OF may somehow be held or found to be liable for any claim for loss of or damage to freight or for delay in delivery of freight, any such liability of OF shall be limited to the lesser of an amount equal to $0.50 per pound up to a maximum of $100,000 or a refund of the freight charges applicable to the specific load lost and/or damaged, unless a greater value has been declared reasonably in advance of pick-up of the subject freight (preferably forty-eight (48) hours in advance) and in writing and communicated directly to OF (and not just to the carrier arranged by OF) in advance and the President of OF has specifically agreed in writing to the declared value and the rate for arranging for transportation of the load of freight has been increased accordingly and such increased amount is actually paid to OF by Customer.

3.3 High Value Loads. Most carriers with which OF arranges to transport freight carrier cargo loss and damage insurance in the amount of $100,000, subject to various exclusions and deductible levels. Should Customer offer, refer or tender freight to OF that is worth greater than $100,000, Customer shall give OF notice of such greater value and the value of such freight in writing reasonably in advance (preferably forty-eight (48) hours in advance) of the requested pick-up date. OF may, at its option, assist Customer in obtaining excess cargo insurance or shippers’ interest insurance where the cargo can be insured for amounts greater than $100,000; however, unless there is a written agreement signed by the President of OF, together with a certificate of insurance or notice of increased insurance from the insurance company in advance, no such additional coverage shall be obtained or afforded and OF shall not have any liability therefore or with respect to any loss of or damage to such freight. If, notwithstanding these Terms and Conditions, OF is somehow found to be liable, its liability, if any, shall be limited as set forth in section 3.2 hereof.

3.4 Time-Sensitive Freight. As set forth herein, OF shall not be liable for any claims for delay in delivery of freight. If Customer has freight that must be delivered in a time-sensitive manner, Customer shall notify OF in writing of such fact in advance of pick-up of such freight and shall set forth in such writing the types of damages it anticipates suffering for delay in delivery, along with an estimate of damages to be suffered should delivery of such freight be delayed. OF will endeavor to advise the carrier arranged to transport such freight of the time-sensitive nature of the freight; however, OF shall not be liable for any delay in delivery of such freight and Customer’s sole remedy, if any, shall lie with the carrier. Customer acknowledges and agrees that neither Customer, OF, or any other party involved in the movement will place requirements upon a carrier or request that a carrier meet a pick-up or delivery schedule that will or may require a carrier or its driver(s) to violate any laws relating to safety or which may require violation of any state, federal or local statute, rule or regulation pertaining to safety, including, but not limited to, those pertaining to hours of service; and, that all such requests and requirements for pick-up and delivery will enable a carrier to operate its business and transport such load in a safe and prudent manner and in strict and full compliance with all state, federal, and local statutes, rules, and regulations. In no event shall OF be liable for any special, incidental, consequential or compensatory damages relating to any delay in delivery of a shipment. Additionally, if any failure or delay in pick-up or delivery of freight shall be the result of an occurrence or event that is outside of the control of OF and/or the carrier(s) that OF arranges to transport the freight, including, but not limited to, such causes as severe weather, fires, floods, natural disasters and catastrophes, highway accidents, roadway blockage, closures and/or re-routing, traffic congestion, fuel shortages, acts of God, war or enemy action, civil commotion, riots or insurrection, epidemics, re-routing, or other similar occurrences or event, neither OF or the carrier shall have any liability for such failure or delay in service.

3.5 HAZMAT Loads. Should Customer request that OF arrange for transportation of freight that constitutes hazardous materials, whether such materials meet the definition contained in 40 C.F.R. S 261.1 et seq. or other definitions or designations, Customer shall notify OF of the same; and, Customer shall comply with all applicable laws and regulations relating to the transportation of hazardous materials, including, but not limited to, those defined in 49 C.F.R. S 172.800, S 173 and S 397 et seq. Customer shall further defend, indemnify and hold OF harmless from any penalties or liability of any kind, including reasonable attorney fees, arising out of Customer’s failure to comply with applicable hazardous materials laws and regulations.

3.6 Canceled Loads. If Customer requests that OF arranges for a carrier to transport a load of freight and such load is subsequently canceled or delayed beyond the requested pick-up time and the carrier arranged by OF has sent a truck or equipment or has otherwise incurred expenses in connection with such load, Customer agrees to pay to OF the amount of costs and expenses incurred by such carrier, plus ten-percent (10%) of such amount. Customer acknowledges that OF will pass along to such carrier ninety-percent (90%) of the amount paid by Customer to OF.

3.7 Delay/Detention in Loading at Origin or Unloading at Destination. Carriers arranged by OF generally allow a certain amount of “free time” (typically two (2) hours) for loading of freight at origin and unloading of freight at the destination. Customer shall defend, indemnify and hold OF harmless for any amount of time in excess of the “free time” allowed by the carrier arranged by OF for which such carrier is detained for loading, unloading, or otherwise at the origin or destination.

Section 4 — Payment Terms

4.1 Payment Terms. OF shall invoice Customer for its services in arranging for the transportation of freight in accordance with the rates and charges agreed to by OF and Customer. All charges owing to OF are due to be paid within twenty-one (21) days of the invoice date, without any deduction or setoff. OF shall apply Customer’s payment to the invoice(s) specified on the remittance advice, if any. Otherwise OF may apply payments to such invoice(s) or other amounts owing from Customer as OF deems appropriate in its sole discretion. If any charges owing to OF are not paid by the due date, interest shall accrue on the amounts owing at the rate of 1.5% per month. Customer shall also be liable to pay OF for any and all costs incurred by OF in collecting the amounts owing, including, but not limited to, reasonable attorney fees.

4.2 OF Enforcement of Rights of Carrier. Should Customer fail to pay OF the full amount owing to OF within the time-period provided for herein and OF has paid the carrier(s) with which it arranged for transportation of Customer’s freight, OF shall be deemed to be subrogated to and to have received an assignment of all of the carrier’s rights under the bill of lading or other applicable documents or law to collect from any other potentially liable parties, including, but not limited to, any and all shippers, consignors, receivers, consignees, or other parties having a beneficial interest in the freight transported or the services provided.

Section 5 — Insurance

5.1 Insurance obtained by OF. Other than a broker’s security bond or trust fund, OF is not required to carry any insurance pertaining to the services OF provides hereunder. By way of information and not by way of requirement, however, OF generally carries and maintains the following insurance coverage in the amounts indicated:

a) Comprehensive General Liability Insurance $1,000,000;

b) Contingent Cargo Liability Insurance $100,000;

c) Errors and Omissions Insurance (excludes bodily injury) $100,000.

Section 6 — Indemnification.

6.1 Indemnification of OF . Customer shall each defend, indemnify and hold OF harmless against any claims, actions, damages and causes of action arising out of or relating to Customer’s negligent or other tortuous acts or omissions or arising out of or relating to Customer’s failure to fulfill any obligations it may have to hereunder or otherwise.

Section 7 — Independent, Non-Exclusive Relationship

7.1 Independent Contractor Relationship. The relationship between OF and Customer shall at all times be that of an independent contractor and nothing contained herein or otherwise shall be construed to be inconsistent with that status. No term or provision of this or any other agreement or any act or omission of either party shall be construed for any purpose to express or imply any joint venture, partnership, principal/agent, master/servant, fiduciary, employer/employee or other relationship between OF and Customer, other than that of an independent contractor relationship. No employees or other agents of Customer shall be construed under any circumstance to be the employees, servants, or agents of OF or any applicable carrier. Likewise, no employees or other agents of OF shall be construed under any circumstance to be the employees, servants or agents of Customer, the shipper/consignor, the receiver/consignee, or any other party. Neither Customer, nor any of its employees or agents, shall have any authority to act on behalf of OF or to alter in any manner any contractual or other relationship of OF with its carriers, customers, shippers/consignors, receivers/consignees, vendors, or any other person or entity. Likewise, neither OF, nor any of its employees or agents, shall have any authority to act on behalf of Customer or to alter in any manner any contractual or other relationship of Customer with its customers, carriers, shippers/consignors, receivers/consignees, vendors, or any other person or entity. Neither OF, nor Customer, are authorized to use the formal name, any business or trade name or any derivative thereof, nor any trademark or service mark of the other party or of any other company with which either party may be affiliated, without express written permission to the contrary. Customer and OF shall each bear all of their respective costs of and shall provide all labor, wages, payroll, equipment, insurance, federal, state and local payroll taxes and any other taxes, unemployment insurance, pensions, social security payments, workers’ compensation insurance, and all other costs associated with their respective businesses and arrangement for and transportation of the subject freight and performance of their respective services. Neither OF nor Carrier will hold itself out to be anything but an independent contractor with respect to the other, nor will OF or Customer assert that they maintain any relationship with the other that is different from that of an independent contractor.

7.2 Non-Exclusive Use. OF is not restricted from providing freight brokerage or other services to persons or entities different from Customer; and, subject to the provisions hereof relating to Customer tendering freight directly to carriers which OF has arranged to haul freight offered, tendered or referred from Customer, Customer is not restricted from offering, tendering, or referring freight to other brokers, freight forwarders, other logistics providers or motor carriers different from OF.

7.3 No Control or Right of Control by OF or Customer. Neither OF nor Customer has the right to control nor shall either exercise any control over the manner in which the other performs its services hereunder or carries on their respective operations. Neither OF nor Customer retains any right to control or otherwise supervise the other’s employees or other agents. Customer and OF shall each be solely responsible for any and all management, control, governance, discipline, of their respective employees and agents; and, neither has any power or authority to hire or terminate the employment of any of the other’s employees or other agents.

Section 8 — Confidentiality and Protection of Business Relationships

8.1 Covenant to Not Tender Freight Directly to Carrier Introduced by OF. Customer recognizes that OF has spent substantial time, money and resources developing a reputation in the freight brokerage industry and developing business relationships with carriers through which it arranges transportation of freight of Customer and others and that OF is providing a valuable service to Customer in arranging for transportation of Customer’s freight. Therefore, as part of the consideration for OF arranging for the transportation of Customer’s freight, Customer agrees that for a period of twelve (12) months following the date of any load of freight for Customer that OF arranged to be transported by a particular carrier, that Customer will not offer, tender or refer freight directly to that particular carrier, unless during the twelve (12) month period immediately preceding the first load of freight of Customer that OF arranged to be hauled by that particular carrier, such carrier had hauled sufficient freight directly for Customer (and not arranged through OF or another broker or other party) to generate at least $10,000 of freight charges. Should Customer violate the provisions of this section, Customer agrees to pay OF, as liquidated damages, an amount equal to fifteen-percent (15%) of the gross amount that Customer has agreed to pay such carrier for transporting freight for Customer for a period of twelve (12) months following the date of the last load of Customer’s freight that OF arranged to be transported by that particular carrier.

8.2 Confidential Information. Customer further agrees that it shall protect and keep confidential any and all non-public, confidential, or proprietary information of OF, including, but not limited to, the identity of OF's carriers, carrier lists, freight and brokerage rates, pricing, freight volume requirements, or the like and that Customer shall not disclose the same, without the prior written approval of OF.

Section 9 — Miscellaneous

9.1 Governing Law/Jurisdiction: Negotiations for the offering, tendering and/or referral of freight to OF are be deemed to have been conducted within the State of Iowa. Accordingly, except to the extent (if any) that they are preempted by federal law, the laws of the State of Iowa shall govern the construction and interpretation of these Terms and Conditions and the dealings of Customer with OF. Customer expressly submits to the jurisdiction of the Courts of the State of Iowa and the United States District Court for the District of Iowa and agrees that jurisdiction and venue shall be proper in such Courts and Carrier waives any claim or defense that such Courts will be an inconvenient forum.

9.2 Remedies. In addition to any other remedies that may be available to OF at law or in equity, all provisions of these Terms and Conditions may be specifically enforced, however, the failure of OF to promptly enforce such provisions shall not be construed to be a waiver of OF's rights hereunder. In addition, Customer recognizes that the payment of damages hereunder may not fully compensate OF for Customer’s breach of the provisions of these Terms and Conditions and that OF will likely suffer irreparable harm from such a breach. Accordingly, Customer agrees that should it breach, violate, or threaten to breach or violate the provisions of these Terms and Conditions, that OF will be entitled to injunctive relief prohibiting Customer’s breach, violation or continued breach or violation without the need of OF having to post any bond in connection with such injunctive relief. If the shipper/consignor, consignee, Oberon Freight customer or other person or entity pursues a claim for cargo loss, theft, shortage, damage or delay involving a shipment tendered to Carrier hereunder directly against Carrier and prevails in pursuing recovery for such a claim, such party shall be entitled to recover from Carrier its costs and attorney fees incurred in pursuing such action.

9.3 Miscellaneous. These Terms and Conditions and any Load Confirmations issued to Customer by OF pertaining to a load for freight offered, referred or tendered to OF constitute the entire agreement between the OF and Customer pertaining to OF's arranging for the transportation of Customer’s freight and are intended to be a complete integration of terms and cannot be altered, except through a written agreement signed by the President of OF . No other prior or contemporaneous agreements exist between OF and Customer, except as set forth in these Terms and Conditions. If any term or provision hereof is held invalid or unenforceable by a court or tribunal of competent jurisdiction, such term or provision shall be deemed to be modified to be enforceable or, alternatively, shall be deemed to be severed here from, and shall not affect the remaining provisions hereof, which shall remain enforceable to the full extent allowed by law. The failure of either party to enforce a breach or waiver of any term, condition or provision hereof shall not be deemed to constitute a waiver of any subsequent failure or breach. These Terms and Conditions shall be binding upon and inure to the benefit of any successors and assigns of OF and/or Customer.

Additional Terms and Conditions for Carriers:

9.4.0.0 The Terms and Conditions set forth herein shall apply to all shipments of freight that Oberon Freight (hereinafter “OF”) arranges to be transported by Motor Carrier. These Carrier Terms and Conditions are acknowledged as being a part of the Broker/Carrier Agreement (hereinafter “BCA”) executed by the Carrier with OF and the Carrier acknowledges that to the extent there is duplication or a conflict of terms with the BCA that OF has executed with the Carrier, the terms and conditions in the BCA shall prevail.

9.4.0.1 Under no circumstances is Carrier allowed to provide services under this contract if their safety rating falls to “unsatisfactory.”

9.4.0.2 Indemnification. Subject always to Iowa indemnify code, title 13, chapter 8, section 6(2) if Iowa law is applicable to the Broker Carrier Agreement, or these Terms and Conditions. Carrier will indemnify, defend and hold harmless broker, its affiliates and its customers (as intended third party beneficiaries) from any and against all losses (as defined below) arising out of or in connection with the transportation services provided under this contract, including the loading, unloading, handling, transportation, possession, custody, use or maintenance of cargo or equipment or performance of this contract (including breach hereof) by carrier or any carrier representative. It is the intent of the parties that this provision be construed to provide indemnification to broker, its affiliates and customers to the maximum extent permitted by law. If this provision is found in any way to be overbroad, it is the parties’ intent that this provision be enforced to allow indemnification to the maximum extent permissible. “Losses” mean any and all losses, liabilities, obligations, personal injury, bodily injury, property damage, loss or theft of property, damages, penalties, actions, causes of action, claims, suits, demands, costs and expenses of any nature whatsoever, including reasonable attorneys’ and paralegals’ fees and other costs of defense, investigation and settlement, costs of containment, cleanup and remediation of spills, releases or other environmental contamination and costs of enforcement of indemnity obligations.

9.4.0.3 All insurance required by the Broker Carrier Agreement must be written by an insurance company having a Best’s rating of “B+” VII or better and must be authorized to do business under the laws of the state(s) or province(s) in which Carrier provides the transportation and related services as specified in load confirmation communications received from Broker.

9.4.0.4 Carrier Moving Perishables. Carrier warrants that the carrier will inspect or hire a service representative to inspect a vehicle’s refrigeration or heating unit at least once each month. Carrier warrants that they shall maintain a record of each inspection of refrigeration or heating unit and retain the records of the inspection for a least one year. Copies of these records must be provided upon request to the carrier’s insurance company and Broker. Carrier warrants that they will maintain adequate fuel levels for the refrigeration or heating unit and assume full liability for claims and expenses incurred by the Broker or the shipper for failure to do so. The carrier must provide their cargo insurance carrier with all records that relate to a loss and permit copies and abstracts to be made from them upon
request. The following rules shall apply: (a) Destination market value for lost or damaged cargo, no special or consequential damages unless by special agreement; (b) Claims will be filed with Carrier by Shipper; (c) claims notification procedures will be followed in accordance with procedure described in 49 C.F.R. 370.1-11. 

9.4.1 In the event a Rate Confirmation is not returned by the Carrier prior to the Carrier picking up a load where OF has arranged transportation, the Terms and Conditions as stated in the BCA and these Terms and Conditions will apply to Carrier at all times along with any specific instructions shown on the Shipper’s Bill of Lading.

9.4.2 The Carriers’ Driver must read and follow any instructions shown on the Shipper’s Bill of Lading and the OF's Rate Confirmation. Instructions to the Carrier on the Shipper’s Bill of Lading that conflict with those instructions on the OF's Rate Confirmation will pre-empt any instructions on the OF's Rate Confirmation (sometimes also referred to as the “Load Confirmation”). Some of these instructions may include the temperature to maintain in refrigerated equipment (“reefer”) for the product being hauled, check call times to notify the Shipper and/or OF about the progress of hauling the load and the estimated time of arrival at the Receiver’s dock, whom to notify in the event of problems on the road—especially with a reefer unit that has malfunctioned, pre-cooling of reefer units prior to pulling up to the Shipper’s dock, pulp product at Shipper’s dock to verify temperature listed on the Shipper’s Bill of Lading and confirm match with signature, and other special instructions pertaining to the load being hauled. Note that temperatures listed on the Shipper’s Bill of Lading always govern and pre-empt any temperatures shown on OF's Rate Confirmation. However, any discrepancies found in pulping product to be shipped at a temperature specified on the Shipper’s Bill of Lading must be pointed out to BOTH the Shipper and OF.

9.4.3. Carrier’s driver will contact OF about any problems being experienced while picking up, hauling, or delivering the load. Good communication is essential to avoid delays, problems with qualifying for and collecting detention from a Shipper or Receiver, dealing with breakdowns, inclement weather and subsequent detours and delays, and other transportation issues.

9.4.4 Carrier will only send in clean trailers to the Shipper’s dock and only those trailers that meet the specifications as shown on OF's Rate Confirmation. If there is a question by the Carrier about its equipment being the correct, qualified equipment for the job, Carrier will ask such questions of OF prior to accepting the load and signing the Rate Confirmation. If the equipment is not as specified on OF's Rate Confirmation and the Carrier is turned away at the Shipper’s dock, no “Truck Ordered, Not Used” (“TONU”) compensation will be paid to Carrier.

9.4.5 Unless OF specifically authorizes transportation by rail on the OF Rate Confirmation, all loads will be hauled only by the Carrier’s equipment. Loads shipped by railroad by Carrier will cause Carrier to forfeit all payment due from OF.

9.4.6. Carrier agrees not to “Double Broker” or “Trip Lease” or “Interline” any freight where OF has arranged transportation for Shipper with Carrier without a written consent from the President of OF. If a load is double brokered, trip leased, or interlined without OF's President’s written consent, Carrier forfeits any payment due on the load from OF.

9.4.7 Carrier will notify OF immediately about any Over, Short, & Damaged Claims. Prompt notification of OS&D situations can often help to resolve these issues quickly and reduce the exposure of the Carrier to claims. Carrier must witness the sealing of any dry van or reefer trailer by the shipper and have the Shipper sign the Bill of Lading with the seal number verified.

9.4.8 If Carrier is hauling a refrigerated (“reefer”) load, Carrier agrees to be compliant with all state and federal laws, rules, and regulations. More specifically, if Carrier is hauling a reefer load in the state of California, the Carrier agrees to comply with all laws, rules, and regulations of the California Air Resources Board (“CARB”) and be liable for all fines and penalties for not compliant. Further, Carrier agrees that the refrigerated equipment it uses to haul the load will meet the Transport Refrigeration Unit (“TRU”) regulations.

9.4.9 All Detention for delays in loading or unloading must be pre-approved by OF in advance. If the Carrier’s driver has waited for one hour at a Shipper’s or a Receiver’s dock to be loaded or unloaded and nobody is making an effort to load or unload the trailer, Carrier must notify OF immediately so that OF can notify the Shipper about the impending delays and potential detention charge in order for detention charges from Carrier to be approved. The Shipper or the Receiver (as the case may be) must note the “time in” and the “time out” on the Bill of Lading and initialed by the appropriate Shipper or Receiver dock worker. Failure to do so will result in the loss of detention costs to be paid to Carrier.

9.4.10 Carrier must provide the name of the Driver, truck and trailer number, and cell phone number before any shipment or load will be tendered to any Carrier by the Shipper. This is a security requirement of many Shippers.

9.4.11 If a Carrier misses or is late for a pickup or a delivery appointment, they will be subject to a $150.00 penalty per occurrence. The Carrier will also be responsible for any additional cost that may be incurred for missed or late pickups or deliveries from shippers or receivers. A fine of $150.00 will be imposed on the Carrier if the Carrier calls the Shipper or Receiver to reschedule appointments. Any rescheduled appointments MUST go through OF.

9.5 Carrier payment is expedited when all information required for payment has been provided to OF. This includes the Carrier’s name and MC# or USDOT # on the Shipper’s Original Bill of Lading signed by the Receiver without any notations of OS&D, the OF Rate Confirmation, and any other documents that Shipper has sent with Carrier to have signed by Receiver.

9.5.1 Lumper or any load/unload trailer service will only be reimbursed if pre-approved by OF and documented on the OF Rate Confirmation. Lumper Receipts are required for payment.

9.5.2 Providing less than the required number of pallets to trade when picking up a load from the Shipper may result in a $10.00 charge per pallet that will be deducted from Carrier’s payment.

9.5.3 Tolls and permit costs are generally included in the rate as shown in the OF Rate Confirmation. However, if the OF Rate Confirmation shows that permit costs are to be paid separately from the rate shown in the OF Rate Confirmation, a copy of the permit and the receipt of the amount paid will be required by OF for reimbursement to the Carrier.

9.6 Food safety for humans and animals is very important! Carrier will comply with all current and future laws, rules, and regulations regarding the hauling of food and animal products in Carrier trailers at all times and will provide monitoring of such loads if required by the Shipper and OF.

9.7 Under no circumstances will Carrier haul any load that is Hazardous Waste. OF will never knowingly ask Carrier to haul a Hazardous Waste load (as opposed to a Hazardous Material load). In the event Carrier is suspicious that a Shipper is about to load a Hazardous Waste load on Carrier’s equipment, Carrier must immediately notify the Shipper not to load the Hazardous Waste and notify OF about the problem. Hazardous Waste loads include decaying animal remains, nuclear material, certain chemicals, organic waste, and other materials.