Uber Freight | Broker - Motor Carrier Agreement

The following Broker - Motor Carrier Agreement (this “Agreement”) governs (i) the use by motor carriers (collectively, “Carriers”) and Carrier Representatives (as defined below) of the electronic brokerage platforms offered by Uber Freight (as defined below), including the Uber Freight brokerage mobile applications and websites (collectively, the “Uber Freight Platforms”) and (ii) the relationship between Uber Freight and Carriers regarding the transportation of freight tendered to Carriers via Uber Freight’s transportation brokerage businesses.

This Agreement is entered into between Carrier and the entities listed on Exhibit A hereto (individually or collectively referred to herein as “Uber Freight” or “Broker”). Uber Freight provides freight brokerage services that involve arranging for the transportation of Shippers’ freight by Carriers in accordance with this Agreement. Uber Freight is not a motor carrier. “Shippers” means customers of Uber Freight who have the right to arrange for transport (whether on behalf of themselves or third-party shippers) the freight that is provided to Carrier for transport under this Agreement.

Please refer to the Uber Freight Privacy Notice (which may be updated from time to time, the “Privacy Notice”) located here for information about how Uber Freight collects, uses and discloses information about Carriers, Carrier Representatives and other users of the Uber Freight’s services. The Privacy Notice is incorporated herein by reference and forms part of this Agreement.

Use of any Uber Freight Platform is also subject to the Uber Freight Terms of Use (which may be updated from time to time) located here.

1. Carrier’s Operating Authority and Compliance with Law.

(a) Carrier represents and warrants that it is legally qualified in accordance with all applicable federal, state, local, provincial, foreign, and international laws, statutes, regulations, rules, and ordinances (collectively, “Applicable Laws”) to provide, as a motor carrier, the interstate, intrastate, interprovincial, intraprovincial, cross-border and/or international motor carrier transportation services (collectively, “Services”) provided by Carrier under this Agreement.

(b) Carrier agrees to comply with all Applicable Laws in the performance of the Services and its obligations under this Agreement, including to the extent applicable (i) all rules and regulations promulgated by the U.S. Department of Transportation (“DOT”) and the Federal Motor Carrier Safety Administration (“FMCSA”) or their Canadian equivalent; (ii) Applicable Laws relating to the transportation of food grade products, including the U.S. Food Safety Modernization Act (21 U.S.C. § 2201 et seq.), the U.S. Federal Food, Drug and Cosmetic Act (21 U.S.C. § 341 et seq.), the U.S. Sanitary Food Transportation Act (49 U.S.C. § 5701 et seq.), and the U.S. Food and Drug Administration’s Final Rule on the Sanitary Transportation of Human and Animal Food (21 C.F.R. § 1.900 et seq.); and (iii) Applicable Laws relating to air quality and the environment.

(c) If Carrier has a safety rating from the FMCSA, that FMCSA safety rating shall be “Satisfactory” or unrated. Carrier further represents and warrants that it does not have an “Unsatisfactory” or “Conditional” safety rating from the FMCSA. If Carrier (i) receives or is notified it may receive any such “Unsatisfactory” or “Conditional” safety rating from the FMCSA, (ii) fails to maintain the insurance required by this Agreement, or (iii) is otherwise prohibited by Applicable Law from performing Services hereunder, Carrier will not transport any shipments tendered to Carrier hereunder (“Shipments”) and will promptly notify Broker of such notification, failure or prohibition.

(d) Carrier represents, warrants and agrees that with respect to any operations performed, and any equipment operated, in California hereunder, (i) such Services will be performed in accordance with the applicable regulations of the California Air Resources Board (“CARB”), including the Truck and Bus Regulation at 13 C.C.R. § 2025, the Drayage Truck Regulation at 13 C.C.R. § 2027, the regulation on Transportation Refrigeration Units (“TRU”) at 13 C.C.R. § 2477 et seq., and the Tractor Trailer Greenhouse Gas regulation at 17 C.C.R. § 95300 et seq.; (ii) Carrier has adopted policies and procedures to ensure compliance with such CARB regulations, as they may be revised, adopted, and amended from time to time; and (iii) Carrier shall only dispatch and operate compliant vehicles (including vehicles compliant with TRUs) and shall maintain Shipment-specific records evidencing such compliance, which records shall be provided to Broker upon request.

(e) Carrier further represents, warrants and agrees that (i) it has provided or will provide all notices and obtained or will obtain all rights, consents and permissions (collectively, “Consents”) necessary to provide Broker with any personally identifiable information of any Carrier Representatives it provides to Broker, necessary for Broker to receive any Device Data (as defined below) of any Carrier Representative that Broker may receive hereunder, and necessary for Broker to send SMS messages or otherwise contact any Carrier Representative (including by an automatic telephone dialing system and/or with an artificial or pre-recorded voice); and (ii) it is in compliance, and will remain in compliance during the term of this Agreement, with all Applicable Laws relating to data protection, privacy, personal information, identity theft, data breach, consumer protection, and data security.

2. Carrier Insurance Requirements.

(a) Carrier must procure and maintain, at its sole cost and expense, the following:

· (i) Automobile liability insurance (“Auto Insurance”) covering all owned, non-owned, and hired vehicles (including any trailers provided by Broker, Shipper or any other party) in an amount not less than $1,000,000 (or CAD equivalent if within Canada) per occurrence for bodily injury or property damage.

· (ii) Commercial general liability insurance (“CGL Insurance”) covering the transportation of Shipments and any other Services of Carrier under this Agreement in an amount not less than $1,000,000 (or CAD equivalent if within Canada) per occurrence. Such insurance must also cover any contractual liability of Carrier to Uber Freight under this Agreement.

· (iii) All-risk broad form motor truck cargo legal liability insurance (“Cargo Insurance”) in an amount not less than $100,000 (or CAD equivalent if within Canada) per Shipment. Such insurance must have no exclusions or restrictions that would foreseeably preclude coverage relating to cargo claims, including exclusions for unattended or unattached trailers, theft, commodities transported under this Agreement, refrigerator breakdown or lack of refrigerator fuel.

· (iv) Statutory workers’ compensation insurance in such amount(s) and in such form(s) as required by Applicable Law.

· (v) Employer’s liability insurance in an amount not less than $1,000,000 (or CAD equivalent if within Canada) per person/per accident/per occupational disease.

(b) All insurance policies of Carrier required by this Agreement must, as applicable, be primary and must waive subrogation and contribution against Broker and Shipper. Carrier represents and warrants that there are no exclusions or limitations under any such policies that would prevent coverage for any liability assumed by Carrier under this Agreement. Carrier will furnish to Broker written certificates obtained from the insurance carrier showing that such insurance has been procured, is properly maintained, and indicating the expiration date of the relevant policies. Carrier will provide Broker written notice of cancellation or material modification of any of the foregoing policies at least thirty (30) days prior to such cancellation or modification. In addition, Broker and Shipper must be included or added as additional insureds on Carrier’s Auto Insurance and CGL Insurance policies and Shipper must be added as a loss payee on Carrier’s Cargo Insurance policy, in each case, as evidenced by an endorsement on the certificates of insurance. Upon Broker’s written request, Carrier will provide Broker with copies of the foregoing insurance policies. All of the foregoing insurance policies must be procured from insurance companies rated at least A-VII or better by AM Best.

3. Performance of Services by Carrier.

(a) Carrier is solely responsible for controlling the method, manner, and means of performing Services. Carrier and its Drivers are responsible for transporting Shipments with prompt and reasonable dispatch and without damage in transit, as well as determining the appropriate route for transportation. “Driver” means, collectively, the employees of Carrier, any contractors of Carrier (including owner-operators under contract with Carrier and any employees of any such owner-operator) and any other service provider or other personnel of Carrier, in each case, who is assigned to operate any motor vehicle transporting any Shipment on behalf of Carrier. Carrier will promptly communicate to Broker any event or circumstance that may cause delay in transit. This Agreement does not grant Carrier an exclusive right to perform any Services for Broker or any Shipper.

(b) All Shipments arranged by Broker and accepted by Carrier must be transported pursuant to Carrier’s operating authority even if the Drivers assigned to the Shipments have their own separate operating authorities from the FMCSA. In compliance with the U.S. Moving Ahead for Progress in the 21st Century Act (“MAP-21”) regulations, Carrier specifically agrees that all freight Broker tenders to Carrier will be transported on Equipment operated only under the authority of Carrier and that Carrier will not in any manner sub-contract, broker, or in any other form arrange for the freight to be transported by a third party without the prior written consent of Broker. If Carrier violates the foregoing prohibition, in addition to any other rights and remedies available to Broker, Broker may, in its sole discretion, pay the underlying third-party carrier directly, and such payment will relieve Broker of any and all payment obligations to Carrier with respect to such Shipment. The foregoing prohibition does not apply to the interlining of Shipments offered and booked as less-than-truckload. Carrier will be liable for payment of any compensation due Carrier’s interlined or subcontracted carrier(s) for any Services performed pursuant to this Agreement by such interlined or subcontracted carrier(s). Carrier agrees to defend, indemnify and hold harmless Broker and its Shippers from any and all compensation claims of Carrier’s interlined or subcontracted carrier(s). Upon request by Broker, Carrier will execute any necessary Uniform Intermodal Interchange and Facilities Access Agreement (“UIIA”) and Shipper-specific UIIA addendum.

(c) In the performance of Services, Carrier will be solely responsible for the acts and omissions of each of its employees, agents, representatives, contractors (including independent contractors and subcontractors) and any other service providers engaged by Carrier (including its Drivers, collectively, “Carrier Representatives”). In the event Carrier designates to Broker certain Carrier Representatives who are authorized to accept Shipments (or make other business decisions) on behalf of Carrier on any of the Uber Freight Platforms, (i) Carrier agrees that Broker may rely upon the acceptance by any such Carrier Representative of a Shipment made available to Carrier on any of the Uber Freight Platforms as creating a legally binding obligation of Carrier hereunder with respect to such Shipment, (ii) Carrier agrees to notify Broker immediately of any changes to (including removals from) the list of Carrier Representatives so designated and (iii) Carrier shall be solely responsible for any failure to accurately and timely notify Broker of any such changes to (including removals from) the list of designated Carrier Representatives. Carrier agrees to maintain all its Uber Freight Platforms login credentials in confidence and only permit its authorized users to access the Uber Freight Platforms. Carrier shall be responsible for all activity that occurs under its Uber Freight Platforms account.

(d) Carrier agrees to utilize only personnel who are legally licensed in accordance with Applicable Laws to perform the Services. Carrier will be solely responsible for ensuring, and will ensure, at Carrier’s cost and expense, that such Carrier Representatives are fully qualified to perform Services hereunder. Carrier will also ensure that any Driver providing Services (i) has sufficient hours available to complete scheduled deliveries in accordance with, and without violation of, applicable hours-of-service regulations and other Applicable Laws, and (ii) complies with applicable drug and alcohol testing requirements and any other safety and security requirements under Applicable Laws. Carrier is solely responsible for determining whether scheduled Shipments can be completed on time without violation of Applicable Law.

(e) The relationship between the Uber Freight and Carrier (together, the “Parties”) is solely as independent business enterprises, each of which operates a separate and distinct business enterprise that provides a service outside the usual course of business of the other. This Agreement is not an employment agreement. Carrier assumes full responsibility for all taxes, assessments, insurance (including workers’ compensation, unemployment compensation, disability, pension, and social security insurance) and other financial obligations due to or otherwise involving Carrier Representatives (including compensation of its Drivers) arising out of the Services. Neither Broker nor any Shipper is an agent of Carrier and Carrier is not an agent of Broker or any Shipper. This Agreement does not create a joint venture, joint enterprise or partnership between Broker, Shipper and/or Carrier.

(f) Carrier will furnish all equipment necessary or required for the performance of Services unless otherwise agreed with Broker (the “Equipment”). Carrier will maintain all Equipment (i) in good repair and clean, working condition, (ii) in full compliance with Applicable Laws, (iii) free of contamination and infestation, and (iv) in the case of dry-van and refrigerated trailers, water-tight and odor-free. Carrier represents and warrants that its trailers have not been and will not be used to haul municipal, residual, industrial, chemical, liquid or solid waste. For all Shipments to be hauled using flatbed trailers, Carrier shall be responsible for load securement in accordance with Applicable Law. For all Shipments that Broker or Shipper designate as requiring refrigeration, Carrier shall maintain proper temperature control in accordance with temperature requirements provided to Carrier by Shipper or Broker and in accordance with all Applicable Laws, including pre-cooling the trailer prior to pickup if requested. For refrigerated Shipments, Carrier shall maintain records, in a downloadable and verifiable format, that document Carrier’s compliance with temperature requirements (including ambient temperature during loading and unloading and of temperature during transit) and shall provide such records to Broker upon request. If Carrier uses a trailer or any other equipment owned by a third-party, Carrier will be liable to such third-party owner for any loss (including by theft) or damage of such equipment resulting from any cause whatsoever during Carrier’s use; provided that use of any PowerLoop LLC equipment will be governed by the TUA in Exhibit B.

(g) If Carrier elects to provide access to any of the Uber Freight Platforms to any Driver, any directions, pickup or delivery instructions or other information provided through such Uber Freight Platform shall be deemed to be provided by Carrier to the Driver. Any navigational directions that Broker offers to Carrier or its Drivers are offered as a convenience only, and Carrier and its Drivers will have no obligation to follow such navigational directions. Notwithstanding any communications or other information transmitted to or from any Carrier Representative on any Uber Freight Platform or otherwise, Carrier agrees that it has full control of its Carrier Representatives in the performance of Services.

(h) Broker is an equal opportunity employer and may enter into contracts with or related to the United States Government. Where Broker has identified that a Shipment is subject to 41 U.S.C. §§ 6701-6707 (the “Service Contract Act”), 41 C.F.R. § 60-741.5(a), 41 C.F.R. § 60-300.42, 41 C.F.R. § 60-300.5(a), 38 U.S.C. §§ 4211 and 4212, and Executive Order (EO) 11246, which are hereby incorporated by reference, or similar legislation (a “Covered Shipment”), and Carrier accepts such Covered Shipment, Carrier agrees, represents, and warrants it will comply with the terms of this Section 3(h) and all Applicable Laws regarding subcontractors and vendors of federal government contracts. This Section 3(h) only applies to any Covered Shipments serviced by Carrier. Carrier shall comply with the Service Contract Act (including complying with the appropriate prevailing wage determinations, wage rates, fringe benefits, vacations, holidays, recordkeeping, and provisions included in this Agreement and the Rate Confirmation in respect of such Shipment). Carrier shall be solely responsible for paying all wages, salaries, fringe benefits, and other amounts due to its employees or agents performing services in connection with this Agreement and shall be responsible for all reports and obligations for its employees. This provision shall explicitly require Carrier to abide by, and not hinder any obligations Broker may have with regard to, the Service Contract Act and related laws and regulations. Carrier shall, upon reasonable notice, allow Broker to audit Carrier’s personnel, books, papers and records (including records related to driver time and payroll) as required by the Service Contract Act, applicable law, or in accordance with best practices. Carrier will maintain all records required for compliance with the Service Contract Act. Carrier will make available for Broker’s inspection all records Carrier maintains for compliance with the Service Contract Act within fourteen (14) days of receiving written notice from Broker requesting such records. Carrier agrees to notify Broker in writing within five (5) days of receiving any inquiry from the U.S. Department of Labor or similar agencies concerning Carrier’s compliance with the Service Contract Act. Carrier agrees to cooperate fully with Broker in any investigation or inquiry with respect to compliance with the terms herein, including the Service Contract Act.

4. Payments by Broker to Carrier for Services.

(a) Subject to the terms and conditions hereof, for each Shipment delivered by Carrier, Broker will pay to Carrier (and not to Driver or any other Carrier Representative) or to a factoring company on behalf of Carrier (if so instructed in writing by Carrier) the rates and charges set forth in a rate confirmation provided by Broker to Carrier electronically or otherwise in respect of such Shipment (the “Rate Confirmation”). The Rate Confirmation constitutes an integral part of this Agreement and may contain additional terms, all of which are legally binding on Carrier.

(b) Carrier acknowledges and agrees that each entity that may serve as Broker hereunder with respect to a particular Shipment is a separate and distinct legal entity. The Broker offering a particular Shipment will be identified on the Rate Confirmation. Only such Broker, and not any other entity (including any other affiliated brokerage), will be responsible to Carrier for its obligations under this Agreement with respect to such Shipment, including the obligation to pay Carrier for Services rendered. Carrier’s recourse with respect to any given Shipment will be solely and exclusively against such Broker for such Broker’s acts and omissions and any of its legal or contractual obligations. No other person, including any affiliated entities of any Broker, will be jointly or severally liable for the acts, omissions or obligations of Broker hereunder.

(c) Carrier will evidence each Shipment by a bill of lading that complies with 49 C.F.R. § 373.101 and names Carrier as the transporting motor carrier. Except for information required under 49 C.F.R. § 373.101, in no event will Carrier’s tariff, terms and conditions, service guide, credit application, bill of lading (including any deemed terms and conditions under Applicable Law), or similar shipping document apply to the Services. Upon delivery of each Shipment, Carrier will obtain a proof of delivery that serves as a receipt showing the kind and quantity of product delivered to the consignee/receiver, and Carrier will cause the consignee/receiver to sign such receipt. The bill of lading is intended to act as a receipt only. Carrier will notify Broker immediately of any exception made on the bill of lading or delivery receipt. If Broker is named as a “carrier” on any applicable bill of lading, such misstatement will not affect Broker’s status as a property broker.

(d) Carrier agrees to provide Broker with a complete, legible and otherwise acceptable copy of the bill of lading or other proof of delivery within twenty-four (24) hours after delivery of each Shipment (and, if Carrier has access to any of the Uber Freight Platforms, Carrier agrees to upload such proof of delivery to an Uber Freight Platform promptly after delivery). Carrier agrees to submit any information and supporting documents requested by Uber Freight promptly and, in any case, within twenty-four (24) hours of Broker’s request. Any claim by Carrier or by Broker to recover undercharges or overcharges pertaining to the transportation and related services provided by Carrier under this Agreement must be filed not more than one hundred eighty (180) days after Carrier’s delivery of the subject Shipment. Any action at law to recover undercharges or overcharges for any shipment or portion thereof must be instituted no later than twelve months from the date of delivery of the subject Shipment.

(e) Broker will pay Carrier within thirty (30) days of Broker’s receipt of a complete, legible and otherwise acceptable signed bill of lading or other proof of delivery and any other related documentation or information requested by Broker. Subject to the preceding sentence, Carrier agrees that Broker may establish payment practices pursuant to which Broker endeavors to make faster payments for certain circumstances including (i) payments made directly from Broker to Carrier (rather than from Broker to a factoring company or other third-party recipient on behalf of Carrier) and/or (ii) payments made to Carriers that achieve certain service level results. Broker’s practice, program, or periodic election to make payments earlier than as required by the first sentence of this paragraph may be modified or canceled by Broker at any time without notice in Broker’s sole discretion.

(f) In order for Carrier to be eligible for any accessorial payment for any Shipment, Carrier must submit all accessorial requests and receipts within twenty-four (24) hours of delivery of such Shipment and such requests and receipts must be supported by a signed bill of lading with legible arrival and departure times. If Broker advances an accessorial payment (including for fuel or lumper services) to Carrier and Carrier does not provide an acceptable receipt for such accessorial payment, Carrier shall return such advance to Broker (or Broker may offset the amount of such advance against any future payments due from Broker to Carrier, as set forth below). Broker’s accessorial payment rates are subject to change at any time in Broker’s sole discretion and are posted to one or more Uber Freight Platforms and/or to the Rate Confirmation.

(g) Carrier agrees that Broker may withhold and offset from any amounts otherwise payable to Carrier or any of its affiliates any amount (i) that Carrier or any of its affiliates owes or may owe to Broker, Shipper, a consignor, consignee or receiver of any Shipment, or an affiliate of any of the foregoing, or (ii) that is subject to a validly issued lien. Carrier (and any third-party recipient of payments on behalf of Carrier) must accept all payments in respect of Shipments from Broker via bank wire transfer (ACH). Where Carrier requests payment via check, Broker may, in its sole discretion, agree to issue a check to the Carrier. For each check issued by Broker, Broker will deduct a 2% processing fee.

(h) Carrier will not seek payment from any Shipper or any consignor, consignee or receiver for any Shipment. Carrier hereby irrevocably waives any statutory or common law rights Carrier may have against any Shipper or any consignor, consignee or receiver of any Shipment, or any third-party payer in respect of any Shipment, to the extent related to the payment of Carrier’s freight charges for Shipments.

(i) Carrier hereby waives and releases any liens or other claims of any nature that Carrier might otherwise have over any freight of any Shipper in the care, custody or control of Carrier. If any Carrier Representative refuses to deliver any Shipment after pickup unless Broker makes a payment in excess of the amount set forth in the Rate Confirmation for such Shipment, then Carrier agrees to promptly pay to Broker, as liquidated damages and not as a penalty, $1,000 in respect of such withheld Shipment (in addition to delivering such Shipment as required hereunder, refunding to Broker any such amounts paid in excess of the Rate Confirmation, and any other remedies available to Broker hereunder or under Applicable Law).

(j) Carrier will charge Broker any applicable sales tax, value added tax, goods and services tax, or similar taxes (collectively “Transaction Taxes”) that are owed by Broker solely as a result of the Services provided by Carrier to Broker and which are required or permitted to be collected from Broker by Carrier under Applicable Laws. Carrier will provide valid tax invoices (or equivalent information as requested by Broker) to Broker, consistent with the requirements of the relevant jurisdiction.

(k) Upon request, Carrier shall provide Broker with a validly executed U.S. Internal Revenue Service form to establish its U.S. or non-U.S. status or any other necessary tax documentation. Where any taxation authority imposes any tax in connection with the payment for Services by Broker to Carrier and requires Broker to withhold such tax (“Withholding Tax”), Broker may deduct such Withholding Tax from the payment to Carrier (including amounts that Broker reasonably determines were required to have been withheld out of previous payments, but were erroneously not withheld) and remit such Withholding Tax to the relevant taxing authority. In the event a reduced Withholding Tax rate may apply on payments to Carrier, Carrier shall provide to Broker, before the relevant payment is to be made, all documentation necessary to demonstrate that Carrier is qualified for the reduced rate of Withholding Tax.

(l) If Broker is found liable to any government or tax authority in relation to any payments to Carrier, Carrier agrees that Broker shall be entitled to recover such amounts (including interest and penalties thereon) upon notice to Carrier. Broker may submit on Carrier’s behalf any forms, notices, returns, treaty-based claims, and/or other filings in connection with such payments and Broker shall be entitled to receive and set off any refund against any amount payable by Carrier to Broker.

5. Cargo Loss, Damage or Delay.

(a) Regardless of the point of origin, destination or routing of the relevant Shipment, Carrier’s liability for any loss, delay, damage or destruction of goods, property or other freight (collectively, “Cargo”) tendered to Carrier pursuant to this Agreement shall be governed by the Carmack Amendment as currently codified at 49 U.S.C. § 14706 et seq., except as expressly modified by this Agreement. No exclusions or limitations contained in any bill of lading (including any deemed contract terms and conditions under Applicable Laws), service guide, rules book, tariff or insurance coverage will limit or reduce Carrier’s liability under this Agreement. Carrier agrees to be liable for the full invoice value of the Cargo lost, damaged, delayed, or destroyed. Carrier will abide by any Cargo handling instructions communicated to Carrier by Broker or the applicable Shipper.

(b) Notwithstanding the foregoing, Carrier shall be liable for any loss, delay, damage or destruction of Cargo occurring in Mexico in accordance with the Ley de Caminos, Puentes y Autotransporte Federal (Law of Roads, Bridges, and Federal Motor Transportation). For Shipments originating in or involving carriage into or through any point within a province or territory of Canada, Carrier and Broker expressly waive the application of any limitations of carrier liability established by the Applicable Laws of any Canadian province or territory, to the extent such waiver is necessary in order to give effect to the provisions of this Section 5. For cross-border Shipments, if the location where damage or loss occurred cannot be determined, the damage or loss will be presumed to have occurred in the United States.

(c) Carrier will have the right to salvage Cargo or a right to claim an offset for the value of salvage of Cargo only upon Broker’s prior written consent, which will not be withheld if the applicable Shipper allows salvage of such Cargo. In the event of an accident, Carrier will be responsible for securement, cleanup and disposal of Cargo as directed by the applicable Shipper. In the event of a missing, tampered with or broken trailer seal, Carrier will be, at the Shipper’s sole discretion, liable for partial or full loss or damage to Cargo without salvage, inspection or establishment of actual damages. In the event the trailer is impounded, Carrier authorizes the Cargo owner or their designee to remove any Cargo contained therein.

(d) Processing of claims for Cargo loss, damage, delay or destruction (collectively, “Cargo Claims”) will be governed by the provisions of 49 C.F.R. § 370, except as expressly modified by this Agreement. Carrier must pay, decline or make a firm compromise of settlement within sixty (60) days after receipt of any Cargo Claim. Carrier and Broker will cooperate with each other and with the applicable Shipper in investigating any Cargo Claims. Carrier agrees that the relevant Shipper will be allowed not less than nine months from the date of Shipment delivery (or the date when delivery reasonably should have been made) to file a Cargo Claim. Carrier agrees that such Shipper will be allowed not less than two years and one day from the date of its written claim disallowance, in whole or in part, to commence litigation for Cargo loss, damage, delay or destruction.

(e) Each Shipper of Cargo is a third-party beneficiary of this Section 5 and is entitled to enforce the obligations of Carrier set forth in this Section 5 directly against Carrier as if such Shipper was a party hereto.

6. Indemnification by Carrier.

(a) Carrier agrees to defend, indemnify, and hold harmless Broker, each Shipper, each consignor, consignee and receiver of any Shipment, and the affiliates of each of the foregoing, as well as the respective directors, officers, employees, agents and representatives of each of the foregoing (collectively, the “Indemnified Parties”), from and against all losses, liabilities, damages, claims, judgments (in equity or law), fines, penalties, interest, costs or expenses, including amounts paid in settlement, costs of investigation and reasonable attorney’s fees, arising out of or related to the transportation of any Shipment, the performance of any Services, or the breach of this Agreement by Carrier, any Carrier Representative or its interlined or subcontracted carrier(s) (collectively, the “Indemnified Claims”), including Indemnified Claims for or related to personal injury (including death), property damage, payments to Drivers, or Carrier’s possession, use, maintenance, custody or operation of Equipment or of equipment that is owned by a party other than Carrier.

(b) Notwithstanding the foregoing, Carrier’s defense, indemnification and hold harmless obligations under Section 6(a) will not apply to the extent that any Indemnified Claim is finally determined by a court of competent jurisdiction to have been caused by the gross negligence or willful misconduct of an Indemnified Party. Broker may select its own legal counsel to represent its interests, and Carrier shall reimburse Broker for its costs and reasonable attorneys’ fees immediately upon request as they are incurred and remain responsible to Broker for any and all losses or damages related to the Indemnified Claims. Each Shipper and each consignor, consignee or receiver of any Shipment, and the affiliates of each of the foregoing, as well as their respective directors, officers, employees, agents and representatives is each a third-party beneficiary of this Section 6 and is entitled to enforce the obligations of Carrier set forth in this Section 6 directly against Carrier as if such Indemnified Party was a party hereto. To the extent permitted by Applicable Law, Carrier hereby expressly waives any exclusive remedy defense, including any such defense available under any workers’ compensation or other occupational accident statutory regime, to the extent that any such defense conflicts with Carrier’s obligations under this Section 6.

7. Non-Solicitation by Carrier.

During the term of this Agreement and for a period of six (6) months after its termination, Carrier will not accept for transportation or transport any freight tendered by any Shipper if: (a) the availability of such freight first became known to Carrier during the course of performing the Services or (b) the traffic of the Shipper was first tendered to Carrier by Broker. Notwithstanding the prior sentence, Carrier may participate in and accept freight transportation awards from a Shipper if the award is received as a result of Carrier’s participation in a formal bidding process conducted by such Shipper.

8. Carrier’s Consent to Share Telematics Data with Uber Freight.

(a) For purposes of this Agreement, the following terms shall have the following meanings:

· (i) “Device Data” means location and other data that is created, captured, entered into or processed by any Telematics Device used by Carrier or any of its Drivers.

· (ii) “Telematics Devices” means telematics technologies and related hardware, equipment, software and services, including fleet management technologies, location tracking technologies, electronic logging devices, vehicle or asset gateways, trailer sensors, and visibility and/or location aggregators.

· (iii) “Telematics Provider” means a provider of Telematics Devices.

(b) Carrier hereby agrees to the transfer and transmission of its Device Data by Telematics Providers to Broker. Such transfer and transmission of Device Data to Broker may be made by the Telematics Provider or such other party as may be necessary to effectuate this transfer and transmission. Carrier authorizes the Telematics Provider or such other parties to take such actions as may be necessary to effectuate the transfer and transmission of Carrier’s and any of its Drivers’ Device Data to Broker. Such Telematics Providers shall be third-party beneficiaries of this Section 8.

(c) Carrier hereby grants to Broker a non-exclusive, transferable, sublicensable, worldwide, fully-paid up, royalty-free and revocable (in accordance with Section 8(e)) license under its rights to the Device Data to use, distribute, reproduce, display, perform, copy, modify, and create derivative works based upon the Device Data. Uber Freight may share such Device Data with third parties in accordance with its publicly available Privacy Notice located here.

(d) The Parties acknowledge and agree that the Device Data may contain or reflect personal information. Carrier represents and warrants that it has all rights necessary, and has provided or will provide appropriate notice, and has obtained or will obtain any necessary consents from end users or other persons, for Carrier to share Device Data with Broker hereunder and for Broker to use any personal information contained or reflected therein for purposes of fulfilling its obligations under this Agreement or other business purposes.

(e) The agreements set forth in this Section 8 shall remain in effect until the earlier of (i) the valid termination of this Agreement and (ii) the termination by either Party of the obligations set forth in this Section 8 in accordance with this Section 8(e). Carrier may terminate this Section 8 by providing written notice to Broker via email at uf-automated-tracking@uber.com, with the subject line “[Carrier’s name] Device Data Sharing Termination Request.” Carrier’s written notice of termination may also instruct Broker to cease receipt of certain data while continuing receipt of other data, in which case this Section 8 will remain effective with respect to the data access that Carrier has not terminated. Broker may terminate this Section 8 by providing written notice to Carrier in accordance with Section 13. Promptly following termination of this Section 8 by either Party, Broker will take reasonable measures to terminate its receipt of Device Data from Telematics Providers. Termination of this Section 8 will not affect Broker’s rights with respect to any Device Data received by or licensed to Broker prior to such termination.

9. Term and Termination of this Agreement; Survival Post-Termination.

The term of this Agreement shall continue indefinitely until terminated in accordance with the terms hereof. Broker may terminate this Agreement at any time for any reason upon written notice to Carrier. Carrier may terminate this Agreement at any time upon five business days’ prior written notice to Broker; provided that if Carrier thereafter accepts any Shipments or provides any Services, this Agreement will apply to such Shipments and Services. The Parties agree that those provisions that by their nature are intended to survive the termination of this Agreement will survive the termination, including Sections 5 through Section 7, Section 8 (with respect to Device Data shared prior to such termination) and this Section 9 through Section 16 will survive the termination of this Agreement. In addition, any rights and obligations of either Party with respect to matters that occurred prior to the termination of this Agreement will survive such termination.

10. Confidentiality.

(a) Neither Party may disclose any confidential information that it may receive from the other Party or any of its affiliates in the course of providing services hereunder to any third party without the prior written consent of the other Party. Neither Party may engage in any publicity, press activities, marketing or other public relations regarding the services provided hereunder and naming the other Party (or, in the case of Carrier, identifying any Shipper, consignor or consignee for which the Carrier provides Services) without the mutual written consent of the Parties. In addition, Carrier shall not disclose to any third party any confidential information disclosed to Carrier by any Shipper or any consignor or consignee of a Shipment (or any affiliate of the foregoing) in the course of providing Services. Each Party shall protect any confidential information received hereunder with a reasonable degree of care. The obligations set forth in this Section 10(a) shall apply during the term of this Agreement until the second anniversary of the termination of this Agreement.

(b) Notwithstanding Section 10(a), each Party may disclose confidential information (i) in connection with the performance of services hereunder to such Party’s affiliates and its and their respective directors, officers and employees, as well as to its and their respective outside accountants, tax advisors and attorneys bound by a contractual or professional obligation to keep such information confidential, and (ii) pursuant to a judicial order or other governmental requirement or request. In addition, notwithstanding the foregoing, “confidential information” shall not include any information that: (A) is already known to the receiving Party at the time of disclosure or subsequently becomes known to the receiving Party, in each case, without violating any confidentiality obligation applicable to the receiving Party or any of its affiliates; (B) is or becomes publicly known without violating any confidentiality obligation applicable to the receiving Party or any of its affiliates; (C) is independently developed by the receiving Party or any of its affiliates without reference to or use of any such confidential information; or (D) is disclosed with the prior written consent of the disclosing Party.

(c) With respect to information that is provided by Uber Freight to Carrier via any Uber Freight Platform, including load and pricing information (the “Uber Freight Information”), Carrier may only use such Uber Freight Information to operate its business of booking loads for Carrier to transport. Carrier may only disclose Uber Freight Information to its Carrier Representatives and will not disclose Uber Freight Information to any third party, including other carriers. Carrier may not copy, reproduce, publicly display or otherwise exploit the Uber Freight Information except as expressly permitted hereunder (i.e., to book freight for Carrier to transport).

11. Entire Agreement.

This Agreement (including all Exhibits to this Agreement, all documents incorporated into this Agreement by reference, and any Rate Confirmations) constitutes the entire agreement of the Parties regarding the subject matter hereof. This Agreement amends, restates and supersedes in its entirety any other agreements regarding the subject matter hereof, including (i) the terms and conditions of any tariffs, bills or other documents provided by Carrier and (ii) any other written broker/motor carrier agreement entered into by the Parties; provided that transportation management services shipments (which are accessed via Uber Freight’s TMS) will continue to be governed by that other motor carriage agreement with Uber Freight US LLC and certain of its affiliates excluding Uber Freight LLC.

12. Miscellaneous.

(a) Carrier may not assign or transfer this Agreement in whole or in part without the prior written consent of Broker. Broker may assign this Agreement to any affiliate of Broker or to any acquirer (or affiliate thereof) in connection with the sale of all or substantially all of Broker’s equity, business or assets. This Agreement will be binding upon and inure to the benefit of the Parties and their successors and permitted assigns.

(b) In the event that any portion of this Agreement would result in a violation of any Applicable Law, the Parties agree that such portion will be severable and the remaining provisions of this Agreement will continue in full force and effect.

(c) Pursuant to 49 U.S. Code Section 14101(b), the Parties expressly waive any and all rights and remedies under Part B to Title IV of Title 49 to the U.S. Code to the extent such rights and remedies conflict with the provisions of this Agreement. Without limiting the foregoing, Carrier expressly waives any right it may have to access or review records pursuant to 49 C.F.R. § 371.

(d) Failure of Broker to insist upon Carrier’s performance under this Agreement or to exercise any right or privilege arising hereunder will not be a waiver of any Broker’s rights or privileges herein.

(e) Upon Broker’s request, Carrier will provide documents evidencing compliance with the terms and conditions of this Agreement, as well as written records of all Shipments transported hereunder, regardless of whether this Agreement remains in effect at the time of such request.

(f) The English language version of this Agreement shall be controlling in all respects and shall prevail in the case of any inconsistencies with translated versions, if any. For Canadian companies only: It is the express wish of the parties that these terms and conditions be drawn up in English. Il est de la volonté expresse des parties que ces modalités et conditions soient rédigées et signées en anglais.

(g) Uber Freight and its affiliates prohibit discrimination against anyone based on race, religion, national origin, disability, sexual orientation, sex, marital status, gender identity, age or any other characteristic protected under Applicable Law. In addition, aggressive, confrontational, and harassing behavior is not allowed. Any Carrier Representative found to have violated these prohibitions will lose access to the Uber Freight Platforms.

(h) All references to “dollars” or “$” refer to U.S. dollars, except where followed by “(CAD),” in which case the reference is to Canadian dollars. The words “include,” “includes” and “including” as used in this Agreement shall be read as followed by the words, “without limitation,” whether or not such words appear in each instance herein. The Section headings set forth in this Agreement are for convenience only and shall not affect the interpretation of this Agreement.

13. Notices.

All notices or other communications required or permitted by this Agreement will be effective upon receipt; will be in writing; and will be transmitted electronically or personally delivered, or mailed by registered or certified mail, return receipt requested, or sent by an overnight delivery service that provides proof of delivery as follows:

If to Broker:

Uber Freight

433 W. Van Buren Street, 9th Floor

Chicago, IL 60607

Attn: Legal Department

with copy to: legal@uberfreight.com

If to Carrier: To Carrier via any of the Uber Freight Platforms or to any email or mailing address provided by Carrier to Broker.

14. Governing Law.

Except to the extent governed by applicable United States federal law, this Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to its choice or conflict of laws provisions.

15. Dispute Resolution.

PLEASE REVIEW THIS PROVISION CAREFULLY, AS IT WILL REQUIRE CARRIER TO RESOLVE DISPUTES WITH UBER FREIGHT THROUGH FINAL AND BINDING ARBITRATION. BY AGREEING TO ARBITRATION, CARRIER IS AGREEING IN ADVANCE THAT CARRIER WILL NOT PARTICIPATE IN AND, THEREFORE, WILL NOT SEEK OR BE ELIGIBLE TO RECOVER MONETARY OR OTHER RELIEF IN CONNECTION WITH, ANY CLASS, COLLECTIVE, COORDINATED, CONSOLIDATED, AND/OR REPRESENTATIVE LAWSUIT.

(a) Binding Arbitration. Subject to Section 15(d), any dispute, controversy, or claim arising out of or relating to this Agreement or the relationship of the Parties, including the interpretation, enforceability, performance, breach, termination or validity thereof, or claims relating to personal injury (including death) or property loss or damage, must be solely and finally resolved by confidential and final arbitration, administered by Judicial Arbitration and Mediation Services (“JAMS”), in Chicago, Illinois, San Francisco, California or another location as determined by Broker. An award rendered in connection with arbitration pursuant to this Section 15 shall be final and binding upon the Parties, and judgment upon such an award may be entered and enforced in any court of competent jurisdiction. Nothing in this Section 15 shall limit the rights of either Party to obtain provisional, injunctive or ancillary remedies from a court of competent jurisdiction before, after or during the pendency of any arbitration. Neither Party has the right to arbitrate on a class action basis any dispute, controversy or claim arising out of or relating to this Agreement or the relationship of the Parties, or the interpretation, enforceability, performance, breach, termination, or validity thereof, or claims relating to personal injury (including death) or property loss or damage, including this Section 15. The Parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding Section 14, any arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C. § 1-16).

(b) Delegation. The above arbitration provision applies to any and all disputes, controversies or claims about the scope, applicability, enforceability, legality, or waiver of this Section 15. For the avoidance of doubt, all such matters are delegated to arbitration to be finally resolved by an arbitrator in the location specified above and administered by JAMS.

(c) Negotiation. Before submitting an arbitration demand, the Party bringing the claim shall first attempt to informally negotiate with the other Party, in good faith, a resolution of the dispute, claim, or controversy between the Parties for a period of not less than 30 days.

(d) Third-Party Actions and Small Claims. Notwithstanding Section 15(a) and (b):

· (i) If Broker is involved in a third-party action or proceeding in any jurisdiction or venue arising from or related to Services provided by Carrier pursuant to this Agreement, Carrier consents to jurisdiction and venue in the court where such action or proceeding is pending.

· (ii) With respect to any dispute, controversy or claim arising out of or relating to this Agreement in which the relief sought is limited to monetary damages and is within the monetary limit of a small claims court in which venue and personal jurisdiction is proper, then each Party must pursue such claim in such small claims court (as opposed to binding arbitration pursuant to Section 15(a)).

16. Changes to this Agreement by Uber Freight.

This Agreement is subject to amendment, revision and/or update by Uber Freight from time to time. Changes that are not material will be effective immediately upon the posting of such changes to this Agreement (it being understood that this Agreement will be posted and publicly available here). If any material changes are made by Uber Freight to this Agreement, Uber Freight will notify Carrier that this Agreement has been revised via electronic mail, a notification within an Uber Freight Platform (which may be a general notification made to all Carriers) or other means of written communication. Any such material changes will be effective five (5) calendar days following Uber Freight’s notice to Carrier that the Agreement has been updated.

17. Trailer Use Agreement.

In the event Carrier chooses to use a trailer or any other equipment provided by PowerLoop LLC, an affiliate of Broker, the Trailer Use Agreement attached as Exhibit B hereto will apply and be legally binding on Carrier with respect to its use of such trailer.

Exhibit A

Uber Freight Brokerage Entities

Uber Freight LLC

433 W. Van Buren Street, 9th Floor

Chicago, IL 60607

MC# 987790

_____________________________________

Uber Freight US LLC

3010 Gaylord Parkway, Suite 200

Frisco, TX 75034

MC# 384205

_____________________________________

Uber Freight Specialized LLC

3010 Gaylord Parkway, Suite 200

Frisco, TX 75034

MC# 485199

_____________________________________

Uber Freight International, Inc.

3010 Gaylord Parkway, Suite 200

Frisco, TX 75034

MC# 575460

_____________________________________

Transplace Mexico, LLC

3010 Gaylord Parkway, Suite 200

Frisco, TX 75034

MC# 642257

_____________________________________

Uber Freight Canada LTD

1185 North Service Road E

Oakville, ON

L6H 1A7

Exhibit B

Trailer Use Agreement

1. Scope of Agreement.

This Trailer Use Agreement (this “TUA”) governs Carrier’s use of trailers (the “Trailers”) provided to Carrier by Uber Freight’s affiliate, PowerLoop LLC (“Powerloop”). Powerloop and Carrier are the parties to this TUA. Carrier acknowledges and agrees that it will use the Trailers in accordance with this TUA. Capitalized terms used but not otherwise defined in this TUA have the meanings ascribed to them in the Agreement to which this Exhibit B is attached.

2. Carrier’s Inspection and Acceptance of Trailers.

(a) Before accepting a Trailer for use, Carrier agrees to conduct and keep records of a pre-trip inspection of the condition of the Trailer that will note any damage and the condition of safety related items including, but not limited to, tires, wheels, rims, lugnuts, brakes, air systems, vehicle lights, and sliding tandem hook pins that are observable upon reasonable inspection. Carrier shall ensure that the pre-trip inspection, and the retention of any records related to the pre-trip inspection, is conducted in compliance with Applicable Laws. Carrier understands that its use of the Trailers is “as-is” and that neither Powerloop nor its affiliates make any warranties or representations, express or implied, with respect to the Trailers’ condition or fitness for a particular use. Carrier shall reject the offer of use of any Trailer that, upon inspection, is deemed not in roadworthy or safe operating condition or not in compliance with Applicable Laws relating to the condition or intended operations of the Trailer.

(b) Carrier’s acceptance of the Trailer shall constitute Carrier’s acknowledgement that the Trailer is in roadworthy and safe operating condition and acceptable to Carrier and is free from observable defects other than exceptions documented and communicated in writing by Carrier to Powerloop. Should the inspection reveal any safety-related defects or any other defect that causes the Trailer to be unroadworthy, Carrier will promptly notify Powerloop or Powerloop’s designated third party maintenance provider and shall refrain from use of such Trailer until such defects have been repaired or otherwise resolved to the mutual satisfaction of both parties. Use of any Trailer without notification of any problems shall be deemed acceptance of all patent conditions and Carrier’s acknowledgment that the Trailer is free of defects reasonably observable during a pre-trip inspection.

3. Period of Carrier Responsibility.

(a) Carrier shall be deemed in possession of, and be responsible for, the Trailer from the time that it obtains possession of the Trailer until the Trailer is successfully returned in accordance with the terms of this TUA (such period of time, the “Use Period”).

(b) During the Use Period, Carrier will not permit any Trailer to be out of Carrier’s exclusive possession, custody, and control without the express, written permission of Powerloop or any of its affiliates and then only to the extent granted under such permission.

(c) Carrier will ensure that its drivers using the Trailer shall be fully qualified to operate the Trailer. Carrier and its drivers will operate the Trailer in compliance with Applicable Laws at Carrier’s cost.

(d) Carrier will return any Trailer to a location specified by Powerloop or any of its affiliates upon demand. Carrier authorizes Powerloop, and any third party appointed by Powerloop, to secure the return of any Trailer and to access any Trailer at any location in order to effectuate return of the Trailer.

4. Use Period Information.

(a) The Use Period commencement date and time and Trailer pick-up location, the Use Period termination date and time and Trailer drop-off location, the total amount of charges payable from Carrier to Powerloop for such Use Period, if any, and other information relating to such Use Period may be set forth by Powerloop or any of its affiliates to Carrier in an Uber Freight Platform or in any other electronic or non-electronic communication (collectively, the “Use Period Information”). Carrier’s acceptance (electronically or otherwise) of the Use Period Information or Carrier’s coupling of the Trailer to any power unit operated by it constitutes Carrier’s agreement to the Use Period Information. The Use Period Information constitutes part of this TUA.

(b) In addition to Carrier’s other liabilities and obligations to Powerloop under this TUA, Carrier will be liable for the administrative charges (“Use Charges”) resulting from Carrier’s failure to use a Trailer in accordance with the Use Period Information. The Use Charges are subject to change in Powerloop’s discretion and are posted to one or more Uber Freight Platforms and/or included in the Use Period Information. Carrier shall be liable for the incurrence of any toll charges, fines and/or penalties from any government or regulatory authority, Trailer storage, detention or demurrage charges, or other like charges assessed by any third-party while the Trailer is in Carrier’s Use Period. Absent Carrier’s receipt of written approval from Powerloop or any of its affiliates, Carrier shall be solely responsible for payment of any such charges.

(c) Carrier hereby authorizes Uber Freight or any of its affiliates to deduct and offset from carrier line haul payments or other amounts Uber Freight or any of its affiliates may owe Carrier under the Agreement any and all amounts owed by Carrier under this TUA, including any third-party charges, and to remit such amounts to Powerloop on behalf of Carrier. Notwithstanding the foregoing, Powerloop may, at any time and for any amounts owed to Powerloop hereunder, invoice Carrier for such charges directly, in which case Carrier agrees to abide by the remittance instructions contained in any such invoice from Powerloop. If Carrier is invoiced by Powerloop, such invoice may be electronically transmitted to Carrier and Carrier shall pay amounts so invoiced in full in accordance with Powerloop’s remittance instructions (and in any event within thirty (30) days of the invoice date).

(d) Carrier shall be solely responsible for, and shall pay directly, or reimburse Powerloop for, any and all applicable tax (including any sales or use tax, gross receipts tax, and rental gross receipts tax), charge, fee, assessment or levy arising from or related to Carrier’s rental, lease, use, operation or possession of any Trailer, but shall not be liable for use, (non-rental) gross receipts, or income taxes assessed to, and payable by, Powerloop.

5. Use and Operation of Trailers.

(a) Carrier agrees to comply with all Applicable Laws related to its use of Trailers under this TUA. Carrier shall use each Trailer in accordance with this TUA.

(b) Carrier will be responsible for the acts or omissions of all individuals or entities operating the Trailers during the Use Period as if they were employees of Carrier. In no event shall any such individual be deemed to be an agent or employee of Powerloop or any of its affiliates, or of any Shippers.

(c) Carrier shall use the Trailer only in the areas of the continental United States authorized under the User Period Information. Carrier shall not make, suffer, or permit any unlawful use of the Trailer.

(d) Other than as authorized or instructed by Powerloop in writing, in no event will Carrier sublet any Trailer, interchange or interline any Trailer to a third party during any Use Period, or otherwise allow any third party to use, possess, or operate the Trailers during a Use Period. Trailers will only be coupled to a power unit being operated by Carrier pursuant to its for-hire motor carrier operating authority at all times during a Use Period while this TUA remains in effect.

(e) Carrier will keep all Trailers free from, and not allow or permit, any lien, mortgage, claim, or other security interest against any Trailer and will, at its own expense, immediately take any and all action necessary to discharge any such lien, mortgage, claim or other security interest asserted by any party against any Trailer arising out of Carrier’s possession or use of such Trailer.

(f) In the event a Trailer is in any way involved in an accident, regardless of whether a citation is issued, Carrier shall immediately notify Powerloop in writing.

(g) In no event will Carrier have any right, title, or interest in any Trailer. Carrier’s only rights regarding any Trailer are to the limited extent granted hereunder. Any attempt by Carrier to transfer or assign any right, title or interest in any Trailer without Powerloop’s written consent shall be null and void and of no force or effect.

(h) Carrier shall not use or permit the use of any Trailer for storage or transportation of any trash, garbage, corrosive or odorous substances, Hazardous Materials (as further defined below), hazardous wastes, high-density poorly secured materials, bulk commodities which may corrode, oxidize, severely dent, puncture, contaminate, stain or damage the interior or exterior of the Trailers or which could result in injury or damage to subsequent users of the Trailers or make any other use of the Trailers which could result in such injury or damage. “Hazardous Materials” means any hazardous, special, radioactive or toxic substance, material or waste which is or becomes regulated by the federal government, the state, the county or the city, and includes, without limitation, any material or substance which is (i) petroleum, (ii) asbestos, (iii) designated as a hazardous substance pursuant to the Federal Water Pollution Control Act, 33 U.S.C. §§ 1251 et seq., (iv) defined as a “hazardous waste” pursuant to the Federal Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et. seq., (v) defined as a “hazardous substance” pursuant to the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. §§ 9601 et. seq., (vi) defined as a “regulated substance” pursuant to the Solid Waste Disposal Act, 42 U.S.C. 6991 et. seq., (vii) defined as a toxic “chemical substance” pursuant to the Toxic Substance Control Act, 7 U.S.C. §§ 136 et. seq., (viii) defined as a “hazardous chemical” or “hazardous substance” pursuant to the Emergency Planning and Community Right to Know Act, 42 U.S.C. §§ 11001 et. seq., or (ix) defined as a “radioactive waste” pursuant to the Atomic Energy Act, 42 U.S.C. §§ 2011 et seq. If any Trailer is determined to have been used to transport or store any such products, upon Powerloop’s request, Carrier shall, as liquidated damages for breach of this provision, promptly (and in no event later than 15 days) pay Powerloop an amount equal to the market value for such Trailer(’s)(s’) year, make, model in comparable condition as of the time that the Use Period commenced, as such amount is reasonably determined by Powerloop.

(i) Carrier understands that the Trailers may be equipped with sensors and location tracking devices (“Devices”) that provide Powerloop, its affiliates, Shippers and third parties with information about the Trailers (including location information), and Carrier, on behalf of itself and its Carrier Representatives, hereby agrees and consents to the use of such Devices and the data from such Devices by Powerloop, its affiliates, Shippers and third parties who Powerloop or its affiliates may share such data with. Carrier will not tamper with, alter, disconnect or remove any Device.

(j) Carrier shall not permit or suffer to permit any Trailer to be operated by any person other than an agent, contractor or employee of Carrier who is a careful, dependable and trained operator who holds any and all licenses required by Applicable Laws to operate the Trailer in a safe and lawful manner.

6. Repositioning Trailers.

Carrier may use any Trailers pursuant to this TUA in order to comply with a request from Powerloop to reposition an empty Trailer. In connection with such an empty move, Carrier is subject to all provisions of this TUA.

7. Return of Trailer.

Carrier shall return the Trailer at the time and location specified by Powerloop or any of its affiliates. Carrier will be responsible for the safe and timely return of the Trailer in clean and good condition except as otherwise noted by the Carrier upon initial acceptance during its pre-trip inspection. After completing its use of the Trailer, Carrier shall conduct a post-trip inspection of the Trailer and report any damages or defects to Powerloop in writing, and Carrier shall retain any records related to the post-trip inspection in compliance with Applicable Laws.

8. Repairs.

If the need for any maintenance or repairs arises during any Use Period, Carrier will immediately notify Powerloop or Powerloop’s designated third-party maintenance provider and follow Powerloop’s instructions. Carrier will be responsible for the cost of any maintenance or repairs to a Trailer that occurs during the Use Period unless Powerloop determines that such cost arose from Normal Wear and Tear. Carrier will pay any such cost to the third-party maintenance provider or to Powerloop (as instructed by Powerloop or Powerloop’s third-party maintenance provider). “Normal Wear and Tear” means a loss or condition arising from normal, customary and appropriate use of Trailers in accordance with manufacturer specifications and Applicable Law.

9. Damaged, Lost, Stolen or Destroyed Trailers.

Carrier shall bear the entire risk of, and be wholly liable to Powerloop for, any partial or total loss or damage to, theft, or destruction of, any Trailer resulting from any cause whatsoever arising during a Use Period regardless of whether covered by insurance. Carrier shall provide prompt notice to Powerloop if any Trailer is lost, stolen, damaged, or involved in a collision, or if the location of any Trailer is unknown for any other reason. Unless instructed otherwise by Powerloop, Carrier may not repair or attempt to repair any damage to a Trailer. If any Trailer is lost, stolen, destroyed, damaged beyond repair or rendered permanently unfit for use for any reason, in each case as reasonably determined by Powerloop, Carrier shall promptly pay Powerloop, within ten (10) days after demand by Powerloop, an amount equal to the Fair Market Value of the Trailer. “Fair Market Value” means the value for such Trailer’s year, make, model in comparable condition as reasonably determined by Powerloop.

10. Insurance.

Prior to taking possession of any Trailer hereunder, Carrier shall procure, and shall thereafter maintain in force during the period of this TUA, at its sole cost and expense, Automobile Liability covering all owned, non-owned, and hired vehicles (including any Trailers provided by Powerloop, Shipper or any other party) insuring Carrier in an amount not less than $1,000,000 per occurrence for bodily injury or property damage, or such larger amount as required by applicable law.

11. Indemnity.

(a) Carrier agrees to defend, indemnify, and hold harmless Powerloop, each Shipper, each consignor, consignee and receiver of any Shipment, and the affiliates of each of the foregoing, as well as the respective directors, officers, employees, agents and representatives of each of the foregoing (collectively, the “TUA Indemnified Parties”), from and against all losses, liabilities, damages, claims, judgments (in equity or law), fines, penalties, interest, costs or expenses, including amounts paid in settlement, costs of investigation and reasonable attorney’s fees, arising out of or related to the use of any Trailer or the breach of this TUA by Carrier, any Carrier Representative or its interlined or subcontracted carrier(s) (collectively, the “TUA Indemnified Claims”), including TUA Indemnified Claims for or related to personal injury (including death) or property damage.

(b) Notwithstanding the foregoing, Carrier’s defense, indemnification and hold harmless obligations under Section 11(a) will not apply to the extent that any such TUA Indemnified Claim is finally determined by a court of competent jurisdiction to have been caused by the gross negligence or willful misconduct of a TUA Indemnified Party. Powerloop may select its own legal counsel to represent its interests, and Carrier shall reimburse Powerloop for its costs and reasonable attorneys’ fees immediately upon request as they are incurred and remain responsible to Powerloop for any and all losses or damages related to the TUA Indemnified Claims. Each Shipper and each consignor, consignee or receiver of any Shipment, and the affiliates of each of the foregoing, as well as their respective directors, officers, employees, agents and representatives is each a third-party beneficiary of this Section 11 and is entitled to enforce the obligations of Carrier set forth in this Section 11 directly against Carrier as if such TUA Indemnified Party was a party hereto. To the extent permitted by Applicable Law, Carrier hereby expressly waives any exclusive remedy defense, including any such defense available under any workers’ compensation or other occupational accident statutory regime, to the extent that any such defense conflicts with Carrier’s obligations under this Section 11.

12. Warranty Disclaimer / Limitation of Liability.

POWERLOOP AND ITS AFFILIATES MAKE NO WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THE VALUE, DESIGN, CONDITION, MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE OR FITNESS FOR USE OF ANY TRAILER. CARRIER ACCEPTS EACH TRAILER “AS IS” AND EXPRESSLY DISCLAIMS ANY RELIANCE UPON ANY STATEMENTS OR REPRESENTATIONS MADE BY POWERLOOP OR ANY OF ITS AFFILIATES, SHIPPER OR ANY PERSONS ON POWERLOOP’S OR ANY OF ITS AFFILIATES’ BEHALF.

UNDER NO CIRCUMSTANCES SHALL POWERLOOP, ANY OF ITS AFFILIATES, OR ANY OF THEIR RESPECTIVE SHIPPERS BE LIABLE, AND CARRIER HEREBY WAIVES ANY CLAIM AGAINST POWERLOOP, ANY OF ITS AFFILIATES, AND ANY OF THEIR RESPECTIVE SHIPPERS, FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT, INCIDENTAL OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES TO CARGO, LOST PROFIT, LOST BUSINESS OR BUSINESS INTERRUPTION, EVEN IF THE PARTY TO BE CHARGED HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE MAXIMUM POTENTIAL LIABILITY OF POWERLOOP AND ITS AFFILIATES TO CARRIER ARISING UNDER THIS TUA WILL BE LIMITED TO THE AGGREGATE AMOUNT OF TRAILER USE CHARGES PAID BY CARRIER TO POWERLOOP IN THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVNG RISE TO SUCH CLAIM.

13. Term and Termination of this TUA; Survival Post-Termination.

This TUA’s effectiveness is coterminous with the term of the Agreement; provided that if Carrier uses any Trailer, this TUA will apply to such Trailer use regardless of any earlier termination. Those provisions intended to survive the termination of this TUA will survive the termination, including Sections 11 through 16. In addition, any rights and obligations of either party with respect to matters that occurred prior to the termination of this TUA will survive such termination.

14. Miscellaneous.

(a) Carrier may not assign or transfer this TUA in whole or in part without the prior written consent of Powerloop. Powerloop may assign this TUA to any affiliate of Powerloop or to any acquirer (or affiliate thereof) in connection with the sale of all or substantially all of Powerloop’s equity, business or assets. This TUA will be binding upon and inure to the benefit of the parties and their successors and permitted assigns.

(b) In the event that any portion of this TUA would result in a violation of any Applicable Law, the parties agree that such portion will be severable and the remaining provisions of this TUA will continue in full force and effect.

(c) Failure of Powerloop to insist upon Carrier’s performance under this TUA or to exercise any right or privilege arising hereunder will not be a waiver of any Powerloop’s rights or privileges herein.

15. Governing Law.

Except to the extent governed by applicable United States federal law, this TUA shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to its choice or conflict of laws provisions.

16. Dispute Resolution.

PLEASE REVIEW THIS PROVISION CAREFULLY, AS IT WILL REQUIRE CARRIER TO RESOLVE DISPUTES WITH POWERLOOP THROUGH FINAL AND BINDING ARBITRATION. BY AGREEING TO ARBITRATION, CARRIER IS AGREEING IN ADVANCE THAT CARRIER WILL NOT PARTICIPATE IN AND, THEREFORE, WILL NOT SEEK OR BE ELIGIBLE TO RECOVER MONETARY OR OTHER RELIEF IN CONNECTION WITH, ANY CLASS, COLLECTIVE, COORDINATED, CONSOLIDATED, AND/OR REPRESENTATIVE LAWSUIT.

(a) Binding Arbitration. Subject to Section 16(d), any dispute, controversy, or claim arising out of or relating to this TUA or the relationship of the parties, the interpretation, enforceability, performance, breach, termination or validity thereof, or claims relating to personal injury (including death) or property loss or damage, must be solely and finally resolved by confidential and final arbitration, administered by Judicial Arbitration and Mediation Services (“JAMS”), in Chicago, Illinois, San Francisco, California or another location as determined by Powerloop. An award rendered in connection with arbitration pursuant to this Section 16 shall be final and binding upon the parties, and judgment upon such an award may be entered and enforced in any court of competent jurisdiction. Nothing in this Section 16 shall limit the rights of either party to obtain provisional, injunctive or ancillary remedies from a court of competent jurisdiction before, after or during the pendency of any arbitration. Neither party has the right to arbitrate on a class action basis any dispute, controversy or claim arising out of or relating to this TUA or the relationship of the parties, or the interpretation, enforceability, performance, breach, termination, or validity thereof, or claims relating to personal injury (including death) or property loss or damage, including this Section 16. The parties acknowledge that this TUA evidences a transaction involving interstate commerce. Notwithstanding Section 15, any arbitration conducted pursuant to the terms of this TUA shall be governed by the Federal Arbitration Act (9 U.S.C. § 1-16).

(b) Delegation. The above arbitration provision applies to any and all disputes, controversies or claims about the scope, applicability, enforceability, legality, or waiver of this Section 16. For the avoidance of doubt, all such matters are delegated to arbitration to be finally resolved by an arbitrator in the location specified above and administered by JAMS.

(c) Negotiation. Before submitting an arbitration demand, the party bringing the claim shall first attempt to informally negotiate with the other party, in good faith, a resolution of the dispute, claim, or controversy between the parties for a period of not less than 30 days.

(d) Third-Party Actions and Small Claims. Notwithstanding Section 16(a) and (b):

· (i) If Powerloop is involved in a third-party action or proceeding in any jurisdiction or venue arising from or related to this TUA, Carrier consents to jurisdiction and venue in the court where such action or proceeding is pending.

· (ii) With respect to any dispute, controversy or claim arising out of or relating to this TUA in which the relief sought is limited to monetary damages and is within the monetary limit of a small claims court in which venue and personal jurisdiction is proper, then each party must pursue such claim in such small claims court (as opposed to binding arbitration pursuant to Section 16(a)).