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  1. Applicability
  1. The accompanying “Carrier Rate and Load Confirmation” (the "Rate Confirmation”) is an offer by River Bend Brokerage Co. (“RBB” or “BROKER”) for the transportation of goods by the carrier indicated on the Rate Confirmation (the “CARRIER”) in accordance with and subject to these terms and conditions (these "Terms" together with the Rate Confirmation, this "Agreement").
  2. This Agreement, together with any documents incorporated herein by reference, constitutes the sole and entire agreement of the parties, and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. In the event of any conflict between these Terms and the Rate Confirmation, these Terms shall govern, unless the Rate Confirmation expressly states that the terms and conditions of the Rate Confirmation shall control.
  3. This Agreement expressly limits CARRIER's acceptance to the terms of this Agreement. These Terms prevail over any terms and conditions contained in any other documentation and expressly exclude any of CARRIER's general terms and conditions, to the extent applicable, or any other document issued by CARRIER in connection with this Agreement.
  1. Carrier Representations.  At all times while this Agreement is in effect, CARRIER represents, warrants and agrees that it will (a) maintain proper authority with the Federal Motor Carrier Safety Administration (“FMCSA”) and U.S. Department of Transportation (“U.S. DOT”) to provide the services contemplated herein, (b) maintain a satisfactory U.S. DOT safety rating, (c) utilize only fully qualified personnel who have all of the appropriate licenses and certificates, including but not limited to a commercial driver’s license, (d) maintain its equipment in compliance with 49 CFR § 396.3, and (e) otherwise comply with all federal, state, and local laws, rules, regulations, and conditions governing its activities hereunder.  If CARRIER receives an “Unsatisfactory” safety, or CARRIER’s rating changes from “Satisfactory” to “Conditional” or “Unsatisfactory”, or CARRIER’s operational rating changes to “Unauthorized,” “Inactive,” or “Out of Service,” it shall immediately notify BROKER and shall not transport any shipment hereunder without BROKER’s prior written consent. 
  2. Receipts and Bills of Lading.  Each shipment hereunder shall be evidenced by a receipt in such form as specified by BROKER or, alternatively, by BROKER's customer signed by CARRIER showing the kind, quantity, and condition of the products or commodities received by CARRIER at origin.  The absence or loss of any such receipt shall not relieve CARRIER of its obligations and responsibilities with respect to any shipments made hereunder.  Such receipt shall be prima facia evidence of receipt of such shipment in good order and condition unless otherwise noted on the face of such receipt by CARRIER.  Upon delivery of each shipment made hereunder, CARRIER shall obtain a receipt showing the kind and quantity of product delivered to the consignee of such shipment at the destination specified by BROKER, and CARRIER shall cause such receipt to be signed by the consignee.  To the extent any term or condition of such receipt or bill of lading conflicts in any way with any term or conditions of this Agreement, this Agreement shall take precedence and control resolution of disputes.  CARRIER shall notify BROKER immediately of any exception made on the bill of lading, manifest, or other receipt.
  3. Carriers Operations and Employees. CARRIER shall provide, at its sole cost and expense, all tractors, trailers, vehicles, fuel, oil, tires, parts, supplies, and any other equipment necessary for the safe and efficient operation, maintenance, and performance of CARRIER's obligations under this Agreement and utilize only competent, able, and legally licensed employees.  Damage to any of BROKER or BROKER’s customer’s property caused by an employee of CARRIER will be CARRIER's sole liability.
  4. Indemnification.  CARRIER hereby agrees to protect, release, defend, indemnify, and hold harmless BROKER and its customers, shippers, and receivers, as well as their employees and agents (collectively, the “BROKER GROUP”) from and against any and all third party liabilities, claims, damages, costs and expenses of any kind or nature, including, without limitation, legal (including, without limitation, reasonable attorneys’ fees), accounting and other costs and expenses incurred in investing and defending against the same, arising from, in connection with, or with respect to loss of or damage to property or injury or death to persons to the extent arising out of or occasioned by any (a) breach of default on the part of CARRIER in the performance of any covenant, warranty or agreement of CARRIER under this Agreement; (b) fault, negligence act or failure to act by CARRIER in connection with the performance or non-performance of any right or obligation related to services provided hereunder; (c) violation of any applicable law; (e) or (2) any cargo loss or damage which occurs while the goods are in the care, custody and control of CARRIER; except to the extent that such liability is the direct result of the gross negligence or intentional misconduct of  the BROKER or any member of the BROKER GROUP.
  5. Freight Loss, Damage, or Delay.  CARRIER shall comply with 49 C.F.R. §370.1 et seq. and any amendments and/or any other applicable regulations adopted by the FMCSA, U.S. DOT, or any other applicable state regulatory agency, for processing all loss and damage claims and salvage.  CARRIER agrees that food that has been transported or offered for transport under conditions that are not in compliance with applicable law, rules, or regulations, along with the instructions provided to CARRIER by BROKER or its customer (to the extent provided), will be considered "adulterated" within the meaning of the Federal Food, Drug and Cosmetic Act, 21 U.S.C. § 342.  CARRIER understands and agrees that adulterated shipments may be refused by the consignee or receiver, at destination without diminishing or affecting CARRIER'S liability in the event of a cargo claim.  CARRIER shall not sell, salvage, or attempt to sell or salvage any goods without the BROKER's express written permission.  CARRIER’s liability for any cargo damage, loss, or theft from any cause shall be determined under the Carmack Amendment, 49 U.S.C. §14706 if applicable; however, liability for exempt commodities and processing cargo loss and damage claims shall be determined by: DRC Trading Practices, or Blue Book Transportation Guidelines, or NAPTWG Best Practices by agreement of the parties and if no agreement then by one of the above associations’ guidelines named above at the selection of the BROKER.  CARRIER’s indemnification liability under Section 6 for freight loss and damage claims under this Section 7 shall include legal fees which shall constitute special damages, the risk of which is expressly assumed by CARRIER, and which shall not be limited by any liability of CARRIER under this Section.  Neither party shall be liable to the other for lost profits, business interruption, or consequential damages without prior written notification of the risk of such losses and its approximate financial amount, and written agreement to assume such responsibility.  Notwithstanding the terms of 49 CFR 370.9, CARRIER shall pay, decline, or make settlement offer in writing on all cargo loss or damage claims within 30 days of receipt of the claim.  Failure of CARRIER to pay, decline, or offer settlement within this 30-day period shall be deemed admission by CARRIER of full liability for the amount claimed and a material breach of this Agreement.
  6. Insurance.  CARRIER shall, at is expense, obtain and maintain the following types of insurance with the following minimum limits:  (a) comprehensive general liability insurance, including contractual liability coverage and coverage for bodily injury and property damage with limits of not less than $1,000,000.00 combined single limit per occurrence; (b) auto liability insurance covering all vehicles owned or operated by carrier in a combined single limit of not less than $1,000,000.00 ($5,000,000 if transporting hazardous materials including environmental damages due to release or discharge of hazardous substances); (c) cargo liability insurance with limits of not less than $100,000.00 for loss of, or damage to property carried on any one motor vehicle which shall be in the form required by 49 C.F.R. 1043.2 (b), and shall have no exclusions or restrictions that would be prohibited by the FMCSA for a filing under the statutory requirements of the above cited section; (d)  workers’ compensation as required by law.  Except for the higher coverage limits which may be specified above, the insurance policies shall comply with minimum requirements of the FMCSA and any other applicable regulatory state agency.  Nothing in this Agreement shall be construed to avoid or limit CARRIER’s liability due to any exclusion or deductible in any insurance policy.  Upon request, CARRIER shall provide BROKER with copies of the applicable insurance policies and upon request, CARRIER shall add BROKER as an additional named insured to the insurance policies. Carrier shall have an endorsement included in each policy providing for written notice of cancellation to be forwarded directly to Broker thirty (30) days prior to cancellation or non-renewal, or ten (10) days’ notice in the case of cancellation for non-payment of premium.
  7. Assignment of Rights.  CARRIER automatically assigns to BROKER all its rights to collect freight charges from shipper or any responsible third party on receipt of payment of its freight charges from BROKER.
  8. Government and Employee Liabilities.  CARRIER assumes full responsibility and liability for payment of the following items: applicable federal, state, and local payroll taxes, taxes for unemployment insurance, old age pensions, workers’ compensation, social security, with respect to persons engaged in the performance of its transportation services hereunder.  BROKER shall not be liable for any of the payroll-related tax obligations specified above and CARRIER shall indemnify, defend, and hold BROKER harmless from any claim or liability imposed or asserted against BROKER for any such obligations.
  9. Waiver of Carrier's Lien.  CARRIER shall not withhold any goods of BROKER or BROKER’s customer on account of any dispute as to prices or any alleged failure of BROKER to pay charges incurred under this Agreement.  Carrier is relying upon the general credit of BROKER and hereby waives and releases all liens which CARRIER might otherwise have to any good of BROKER or BROKER’s customer in the possession or control of CARRIER. 
  10. Payments.  CARRIER will charge and BROKER will pay for transportation services performed under this Agreement the rates and charges as shown on the Rate Confirmation.  Payment by BROKER will be made within thirty (30) days of receipt by BROKER of CARRIER's freight bill, bill of lading, clear delivery receipt, and any other necessary billing documents enabling BROKER to ascertain that service has been provided at the agreed upon charge.  In the event service is provided and it is subsequently discovered that there was no applicable rate, the rate paid by BROKER and collected by CARRIER shall be the rate agreed upon between the parties.  In no event shall BROKER be liable for any transportation charges for which BROKER did not have primary responsibility for payment under the circumstances surrounding the involved shipment or that BROKER did not agree to in writing.  CARRIER agrees that BROKER is solely liable for all freight charges related to the transportation services provided herein, and, as such, CARRIER agrees to refrain from all collection efforts against the shipper, receiver, consignor, consignee, or BROKER's customers.  BROKER may deduct from any payment any amount CARRIER is indebted to BROKER, including any claims for freight loss, damage, and delay. Upon BROKER’s payment to delivering carrier, CARRIER shall not be released from any liability to BROKER under this Agreement or otherwise, including any claims under MAP-21 (49 U.S.C. § 13901 et seq.).  In addition to the indemnity obligation in Section 5, CARRIER will be liable for consequential damages for violation of this provision.
  11. Carrier Not to Solicit. CARRIER will not solicit traffic from any shipper, consignor, consignee, or BROKER’s customer: (a) where the availability of such traffic first became known to CARRIER as a result of BROKER's efforts; or (b) where the traffic of the shipper, consignor, consignee, or BROKER’s customer was first tendered to CARRIER by BROKER.  If CARRIER breaches this Agreement and “back-solicits” the BROKER’s customers, and obtains traffic from such a customer, the BROKER shall be entitled to liquidated damages equal to the net revenue realized by BROKER from shipper during the prior fifteen months, and to the extent necessary, the monthly average (if fifteen months of revenue history doesn’t exist) multiplied by fifteen. 
  12. Confidentiality.  In addition to Confidential Information protected by law, statutory or otherwise, the parties agree that all of their financial information and that of their customers, including but not limited to freight and brokerage rates, amounts received for brokerage services, amounts of freight charges collected, freight volume requirements, as well as personal customer information, customer shipping or other logistics requirements shared or learned between the parties and their customers, shall be treated as Confidential, and shall not be disclosed or used for any reason without prior written consent.  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 attorneys’ fees.
  13. Assignment and Benefit of Agreement.  CARRIER may assign or transfer this Agreement in whole or in part with the written consent of BROKER, in BROKER’s sole and absolute discretion.  This Agreement shall be binding upon and endure to the benefit of the parties hereto.
  14. Severability.  In the event that the operation of any portion of this Agreement results in a violation of any law, the parties agree that such portion shall be severable and that the remaining provisions of this Agreement shall continue in full force and effect.
  15. Waiver.  CARRIER expressly waive any and all rights and remedies allowed under 49 U.S.C., Subtitle IV, Part B to the extent that such rights and remedies conflict with this Agreement.  Failure of BROKER to insist upon CARRIER's performance under this Agreement or to exercise any right or privileges, shall not be a waiver of any BROKER's rights or privileges herein.
  16. Notice.  All notices provided or required by this Agreement, shall be made in writing, and delivered, return receipt requested, to the addresses shown herein with postage prepaid; or by confirmed (electronically acknowledged on paper) fax, or by email with electronic receipt.  The parties shall promptly notify each other of any claim that is asserted against either of them by anyone arising out of the Parties performance of this Agreement.  Notices sent as required hereunder, to the addresses shown in this Agreement shall be deemed sent to the correct address, unless the parties are notified in writing of any changes in address.
  17. Retention of Documents.  CARRIER agrees to retain signed delivery receipts and any other records of transportation for each shipment hereunder for two (2) years from the date the shipment is delivered.
  18. Governing Law, Jurisdiction, and Venue. The laws of the State of Kansas shall govern the validity, construction, and performance of this Agreement without regard to or application of choice-of-law rules or principles.  All controversies and claims arising hereunder, and all actions or proceedings shall be brought exclusively in the federal or state courts located in the State of Kansas, and the parties hereby shall consent to the personal jurisdiction and venue therein.
  19. Independent Contractor. The relationship of the parties to each other shall always be that of independent contractors.  None of the terms of this Agreement, 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.  Neither party shall represent to any party that it is anything other than an independent contractor in its relationship to the other party.
  20. Non-Exclusive Agreement.  CARRIER and BROKER acknowledge and agree that this contract does 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.
  21. Modification.  This Agreement may not be amended, except by mutual written agreement of the parties. Should CARRIER modify any provision of this agreement, whether in handwritten form, modified text or otherwise, such amendment shall not be effective, unless BROKER has initialed such change in proximity thereto evidencing BROKER’s specific acceptance of such modification.  Additionally, the provisions of this Agreement shall be deemed to supersede and shall prevail over any conflicting terms set forth in any load confirmation, rate confirmation, dispatch sheet or other document pertaining to this Agreement, whether any such document was signed prior to, contemporaneously with or after execution of this Agreement.
  22. Entire Agreement.  Unless otherwise agreed in writing, this Agreement contains the entire understanding of the parties and supersedes all verbal or written prior agreements, arrangements, and understandings of the parties relating to the subject matter stated herein, whether any such document was signed prior to, contemporaneously with or after execution of this Agreement.  The parties further intend that this Agreement constitutes the complete and exclusive statement of its terms, and that no extrinsic evidence may be introduced to reform this Agreement in any judicial or arbitration proceeding involving this Agreement.