Brokerage Transportation Terms and Conditions

The following Brokerage Transportation Terms and Conditions (the “Terms and Conditions”) govern the provision of transportation services specifically offered by CJ Logistics Transportation, LLC (“Broker”) when providing transportation brokerage services. The Terms and Conditions do not apply to any other service or entity owned by CJ Logistics America, LLC.

By tendering a freight shipment to Broker, the tendering party (the “Shipper”) agrees to be bound by the Terms and Conditions herein.

Shipper and Broker (“the parties”) enter into these Terms and Conditions, pursuant to 49 U.S.C. § 14101(b)(1), for the purpose of providing and receiving specified services subject to specified rates and conditions, and pursuant to which the parties agree to waive certain rights and remedies permitted to be waived under the ICC Termination Act (“ICCTA”), and, to the fullest extent possible, unless otherwise stated, have all of their dealings governed by the terms and conditions of these Terms and Conditions. The Terms and Conditions are subject to and shall be governed by 49 U.S.C. § 14706 (which is specifically NOT waived) and all rules and regulations promulgated in connection therewith. The parties agree that 49 U.S.C. § 14706 shall apply to all shipments transported by Broker’s contracted carriers (the “Carriers”), including those having an origin or destination in a country other than the United States, those involving intrastate transportation and those commodities the transportation of which is not regulated. The parties agree that the rights conferred by 49 C.F.R. 371(3)(c) are expressly waived for all purposes.

1. Role of CJ Logistics Transportation.

Shipper, by tendering freight to Broker, understands, acknowledges, and agrees that Broker is an interstate property broker, as defined in 49 U.S.C. § 13102(2) and 49 C.F.R. § 371.2(a), authorized by the FMSCA in Docket No. MC - 74379 U.S. DOT No. 3095481 to arrange for the transportation of property by motor carriers with whom it contracts (“Carriers”).

2. Scope and Requirements.

The Terms and Conditions govern all shipments of general commodities (“Goods”) for which Broker arranges transportation by Carriers at the request of Shipper (“the Services”). The Services shall include:

a. Broker must arrange for and coordinate pick-up and delivery appointments with Shipper and the consignee.

b. Broker shall arrange for transportation by Broker’s Carriers. Broker may engage Carriers, including its own affiliates, to perform the transportation services to be provided under this Agreement.

c. Broker agrees to contractually require Broker’s Carriers provide the necessary equipment, maintained in compliance with the requirements of the FMCSA or the government authority having jurisdiction, and qualified personnel for completion of the transportation services required for Shipper. Broker will contractually require Broker’s Carriers do not supply equipment that has been used to transport hazardous wastes, solid or liquid, regardless of whether they meet the definition in 40 C.F.R. §261.1 et seq., or other similarly applicable laws or regulations. Broker agrees that all shipments will be transported and delivered with reasonable dispatch, or as otherwise agreed in writing.

3. Pricing.

Broker shall invoice Shipper for its Services in accordance with the rates, charges and provisions as set forth in the quote provided by Broker. Customer understands and agrees that quotes or a good faith estimate, and actual charges may vary based upon the circumstances and market conditions at the time transportation is actually arranged or actually ships. As such, Customer agrees to pay any increases between the actual rate and the quote. Rates may be established or amended verbally in order to meet specific shipping schedules, as mutually agreed, so long as such verbal rate agreements are reduced to writing and acknowledged by authorized representatives of both Shipper and Broker, and confirmed by telefax or electronic mail within five (5) working days after the movement of the involved freight. No other rates shall apply unless Broker has contracted pricing in place with Shipper. Quotes do not include other charges, such as stop-offs, detention, loading or unloading, fuel surcharges, or other accessorial charges, tariff rates, released rates or values, or tariff rules or circulars, which shall only be valid as specified in the Accessorial Schedule as outlined in Broker’s Shipper Accessorial Policy (see below).

For avoidance of doubt or confusion, unless otherwise stated, quotes are for standard levels of service with no guarantee of pick-up or delivery times. Broker shall request its Carriers proceed with reasonable dispatch in compliance with any and all applicable safety regulations. Broker cannot guarantee a pick-up time, delivery time, or transit time, as Broker does not have the right or means to control how Carriers perform the Services.

4. Payment.

a. Broker agrees to submit its invoice to Shipper within thirty (30) days of shipment delivery. Shipper agrees to pay Broker within fifteen (15) days of receipt of Broker’s invoice for the Services, in accordance with the rates set forth or as otherwise agreed, provided that Broker timely submits documents verifying delivery, including any receipt of proof of delivery, bill of lading, signed load confirmation, and any other documents agreed herein by reference.

b. Broker shall be responsible for paying its Carriers for shipments performed pursuant to this Agreement. Broker shall defend, indemnify, and hold Shipper harmless from any claims made against them by Broker’s Carrier for payments.

c. Broker shall contractually require Broker’s Carriers do not withhold delivery of any freight due to any dispute with Shipper, Broker, consignee, or other Party.

5. Mileage.

For each freight movement, the mileage according to the then-current version of PC Miler will apply.

6. Liability for Claims, Physical Loss or Damage to Cargo.

The parties agree that Broker is not liable for loss, damage or delay claims, as these are the responsibility of Carrier. Broker shall only utilize Carriers who contractually agree that all cargo damage, loss, or theft will be deemed to have occurred in United States interstate traffic and Broker’s Carrier’s liability shall be determined under the Carmack Amendment, 49 U.S.C. §14706, regardless of the actual jurisdiction of loss or performance. Broker’s Carrier shall be responsible for the full actual damage or loss to all articles while in its or its contractor’s care, custody, or control. Broker’s Carrier shall not be liable for any loss, damage, or delay caused by the Act of God, the public enemy, the authority of law, or the act or default of the shipper. Further, neither Broker nor Broker’s Carrier shall be responsible to pay for claims caused due to a willful or negligent act or omission of Shipper, its agents or employees. Any salvage proceeds shall be credited against Shipper’s claims against Broker’s Carrier.

7. Loss and Damage Claims Process.

Broker shall only utilize Carriers that comply with 49 C.F.R. §370.1 et seq. and any amendments and/or any other applicable regulations adopted by the FMCSA, for processing all loss and damage claims, which arise out of the discharge of Broker’s Carrier’s duties and responsibilities hereunder. Broker’s Carrier shall accept cargo claims from Shipper within nine (9) months from the date of loss, damage, or delay, which for purposes of this Agreement shall be determined by the delivery date or, in the event of non-delivery, the scheduled delivery date. Broker’s Carrier shall acknowledge receipt of a cargo claim within thirty (30) days and will promptly investigate the claim. Broker’s Carrier will pay, decline, or make a firm compromise settlement offer within sixty (60) days of receipt of the claim. Civil actions against Broker’s Carrier for loss, damage, or delay may be filed at any time within two (2) years following the date on which Broker’s Carrier provides notice that it has disallowed any part of such claim. Broker’s Carrier shall be contractually required to notify Broker immediately by telephone, who in turn will notify Shipper immediately, of any accidents, spills, theft, hijacking, delays or shortages which impair the safe and prompt delivery of goods in Carrier’s control.

8. Broker’s Insurance and Bonds.

Broker shall procure and maintain, at its sole cost and expense, the following bond and insurance coverages, subject to the following minimum limits:

a. Surety bond in the amount of seventy five thousand dollars ($75,000);

b. Contingent cargo or transit liability in the amount not less than one hundred thousand dollars ($100,000) per occurrence;

c. Contingent commercial auto liability in the amount not less than one million dollars ($1,000,000) per occurrence;

d. Commercial General liability in the amount not less than one million dollars ($1,000,000) per occurrence and two million dollars ($2,000,000) per aggregate; and

e. Workers’ Compensation with limits and benefits as required by law; in states where Workers’ Compensation insurance is a monopolistic state-run system, Broker shall add Stop Gap Employers Liability with limits not less than $1,000,000 each accident or disease.

9. Broker’s Carriers’ Insurance.

Broker shall only utilize Carriers that procure and maintain, at their sole cost and expense, the following insurance coverages, subject to the following minimum limits:

a. Commercial General Liability in the amount not less than one million dollars ($1,000,000.00) per occurrence and two million dollars ($2,000,000) per aggregate;

b. Auto Liability in the amount not less than one million dollars ($1,000,000.00) combined single limit per occurrence or five million dollars ($5,000,000) combined single limit per occurrence if transacting hazardous materials including environmental damages due to release or discharge of hazardous substances;

c. Motor Truck Cargo Legal Liability Coverage in the amount not less than one hundred thousand dollars ($100,000) per Occurrence;

d. Employer’s Liability insurance with limits of not less than one million dollars ($1,000,000) each accident/ disease per employee;

e. Workers’ Compensation with statutory limits and benefits as required by law in states where Workers’ Compensation insurance is a monopolistic state-run system, Carrier shall add Stop Gap Employer’s Liability with limits not less than $1,000,000 each accident or disease;

f. Umbrella/Excess Liability in the amount of not less than $1,000,000 at least as broad as and written on an excess basis over scheduled underlying primary Commercial General Liability, Commercial Auto Liability and Employer’s Liability policies; and

g. Crime insurance covering employee dishonesty, including but not limited to, dishonest acts of Carrier, its employees, agents, subcontractors and anyone under Carrier’s supervision or control in an amount not less than one million dollars ($1,000,000) and coverage shall include theft of client, guest, or customer property including Shipper and its affiliates as Loss Payees. To the extent that any work is subject to the Federal Employers Liability Act, US Longshore and Harbor Workers Compensation Act, the policy must be endorsed to cover such liability under such Act.

10. Hazardous Materials / Dangerous Goods.

Shipper 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, dangerous goods or hazardous residues, as applicable. Shipper is obligated to inform Broker immediately if any such shipments constitute hazardous materials, dangerous goods or hazardous residues. Shipper shall defend, indemnify and hold Broker harmless from any penalties or liability of any kind, including reasonable attorney fees, arising directly out of Shipper’s failure to comply with applicable hazardous materials, dangerous goods or hazardous residues laws and regulations.

11. Indemnification of Broker.

Shipper shall defend, indemnify and hold Broker, along with its employees, agents, and Carriers (together the “Indemnified Parties”) harmless against any claims, actions, damages and causes of action arising out of or relating to:

a. Shipper’s or Shipper’s customer’s negligent or other tortious acts or omissions;

b. Arising out of or relating to Shipper’s breach of these Terms and Conditions; or

c. Shipper’s violation of applicable laws or regulations.

Shipper must indemnify the Indemnified Parties from any attempts to subrogate to them by Shipper’s insurance carrier, or any other party. The obligation to defend shall include payment of all reasonable costs of defense, including attorney fees, incurred by the Indemnified Parties.

12. Independent Contractor.

a. It is understood and agreed that the relationship between Shipper and Broker is that of independent contractor. None of these Terms and Conditions, or any act or omission of either Party shall be construed for any purpose to express or imply a joint venture, partnership, principal/agent, fiduciary, or employer/employee relationship between the Parties. Broker and Broker’s Carrier shall each provide the sole supervision and shall have exclusive control over the operations of its employees, contractors, subcontractors, agents, as well as all vehicles and equipment used to perform its transportation services hereunder. Shipper has no right to discipline or direct the performance of any driver and/or employees, contractors, subcontractors, or agents of Broker or Broker’s Carrier. Shipper is not and will not be responsible for any debts, liabilities, or obligations incurred by Broker or Broker’s Carrier in the performance of its business. It is the intent of the Parties that Broker is, shall be, and will remain an independent contractor and nothing contained herein shall be construed to be inconsistent with that relationship. Broker represents and agrees that at no time and for no purpose shall it represent to any Party that it is anything other than an independent contractor in its relationship to Shipper.

b. It is understood and agreed that the relationship between Broker and Carrier is that of independent contractor. None of these Terms and Conditions, or any act or omission of either party shall be construed for any purpose to express or imply a joint venture, partnership, principal/agent, fiduciary, or employer/employee relationship between Broker and Carrier. Carrier shall provide the sole supervision and shall have exclusive control over the operations of its employees, contractors, subcontractors, agents, as well as all vehicles and equipment used to perform its transportation services hereunder. Broker has no right to discipline or direct the performance of any driver and/or employees, contractors, subcontractors, or agents of Carrier. Broker is not and will not be responsible for any debts, liabilities, or obligations incurred by Carrier in the performance of its business. It is understood by the parties that Carrier is, shall be, and will remain an independent contractor and nothing contained herein shall be construed to be inconsistent with that relationship.

13. Non-Exclusive Agreement.

Shipper and Broker acknowledge and agree that the Terms and Conditions do not bind the respective parties to exclusive services to each other. Either party may enter into similar agreements with other carriers, brokers, or freight forwarders. Additionally, Shipper makes no representation or commitment as to volume or revenue and Broker makes no representation or commitment as to available capacity.

14. Confidential Information.

a. The parties acknowledge that material and information which each party may acquire about the other, including services, volume, customers, pricing, procedures and processes are considered by the Parties to be proprietary and confidential. Both Parties agrees that all such information acquired hereunder shall be held in confidence, and shall not reveal or use any such information. Both Parties shall disclose such information or material only to those who have reasonable need to know the same in connection with the performance of the Services, and agree to protect the information with the same degree of care that it employs for the protection of its own confidential and proprietary information of a similar nature, but not less than reasonable care.

b. Neither Party shall have any obligation to preserve the confidentiality of any such information to the limited extent that it: (i) is in the public domain or generally available to the public; (ii) was in the possession of or disclosed to the Party prior to the date hereof, free of any obligation to keep the same confidential; (iii) is lawfully acquired by the Party from a third Party under no obligation of confidentiality to the other Party; or (iv) is required to be disclosed by law or court order; provided, however, that the disclosing Party shall give prompt written notice thereof to the other Party.

c. In the event of violation of this Confidentiality paragraph, the Parties agree that the remedy at law, including monetary damages, may be inadequate and that the Parties shall be entitled, in addition to any other remedy they may have, to an injunction restraining the violating Party from further violation of this Agreement in which case the prevailing Party shall be liable for all costs and expenses incurred, including but not limited to reasonable attorney’s fees.

15. Non-Solicitation.

a. Shipper agrees not to solicit any of Broker’s Carriers it first came into contact with as a result of a load tendered to Broker for a period of twenty-four (24) months following the date of the last tender to Broker transported by the Carrier. For avoidance of doubt, solicit shall include as a load tender, RFP/Bid, or other offer of freight by Shipper to Carrier. If Shipper can demonstrate that it tendered no fewer than ten (10) shipments to Broker’s Carrier in the twelve months prior to Shipper’s first tender to Broker where the same Carrier was utilized, then that Carrier shall be exempt from this Section 16. If Shipper violates the provisions of this section, Shipper agrees to pay Broker, as liquidated damages, twenty percent (20%) of the gross amount paid to each Carrier on each shipment that violates the provisions of this section for a period of twelve (12) months following the date of the last tender to Broker transported by the Carrier.

b. Shipper agrees not to solicit, recruit, or offer employment to any of Broker’s employees for a period of twelve (12) months following the date of the last tender to Broker.

16. Disputes; Governing Law; Venue.

The Terms and Conditions shall be construed in accordance with and governed by federal laws regarding transportation and otherwise by the laws of the State of Illinois. The parties agree that any action at law or equity arising out of or relating to the Terms and Conditions shall be filed only in the state or federal courts located in Cook County, and the parties hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating such action. The parties agree that this paragraph is reasonable due to the commercial circumstances of the proposed relationship and therefore waive any defense or objection to such exclusive jurisdiction based on forum non-conveniens or similar grounds.