Terms and Conditions
***NOTICE***
CAPABLE TRANSPORT, INC. (“CAPABLE”) IS AN INTERSTATE PROPERTY BROKER, AS DEFINED IN 49 U.S.C. SECTION 13102(2) AND 49 C.F.R. SECTION 371.2(a). CAPABLE HAS AUTHORITY TO OPERATE AS SUCH UNDER MC # 497923. FOR PURPOSES OF THIS AGREEMENT, CAPABLE IS OPERATING SOLELY AS AN INTERSTATE PROPERTY BROKER IN ARRANGING FOR THE TRANSPORTATION OF FREIGHT BY AUTHORIZED MOTOR CARRIERS FOR COMPENSATION, UNLESS OTHERWISE EXPRESSLY NOTED IN A WRITING SIGNED BY CAPABLE AND CUSTOMER.
The following Terms and Conditions shall apply to all shipments of freight CAPABLE arranges to be transported by licensed motor carrier on Customer’s behalf. The terms “freight” and “cargo” are used interchangeably herein.
Section 1 — Scope and Applicability of Terms and Conditions.
1.1 Applicability of Terms and Conditions.
By offering, tendering or referring freight to CAPABLE to be arranged for transport, all parties whether such party is acting as a shipper, consignor, receiver, consignee, freight forwarder, broker, intermediary, 3PL, 4PL, carrier, freight agent or otherwise (all of which will be referred to hereafter for convenience as “CUSTOMER”) acknowledge and agree that these terms and conditions set apply to any and all freight that CUSTOMER offers, tenders, or refers to CAPABLE. While CAPABLE will endeavor to send confirmation of tender of freight by written or electronic means (hereinafter a “Load Confirmation”) to CUSTOMER, which may incorporate by reference the terms and conditions set forth herein, the terms and conditions set forth herein shall nevertheless apply to all freight offered, tendered or referred to CAPABLE, whether or not such a Load Confirmation or other document or communication expressly incorporates these terms and conditions.
1.2 Acknowledgment of Broker Status.
By offering, tendering or referring freight to CAPABLE, CUSTOMER acknowledges and agrees that CAPABLE is an interstate property broker (hereinafter a “broker”) as defined in 49 U.S.C. § 13102(2) and 49 C.F.R. § 371.2(a); that CAPABLE acts solely as a broker for purposes of this brokerage agreement in arranging for the transportation of freight by authorized motor carriers; and, that CAPABLE does not operate or hold itself out as a motor carrier, a freight forwarder, a 3PL, a 4PL, an non-vessel ocean common carrier (“NVOCC”), a rail carrier, a shipper’s agent, a carrier’s agent, or any other type of entity, other than a broker as defined in 49 U.S. Code § 13102(2) and 49 C.F.R. § 371.2(a), unless expressly identifying another role in writing.
Section 2 — Services to be Provided by CAPABLE.
2.1 Arranging for Freight to be Transported by Motor Carrier.
CAPABLE is an interstate property broker operating pursuant to authority granted to it to do so by the Federal Motor Carrier Safety Administration (“FMCSA”). CAPABLE’s brokerage responsibility is limited to arranging for but not actually performing the transportation of freight by a licensed and insured motor carrier. Upon a CUSTOMER’s offer, tender or referral of freight to CAPABLE, CAPABLE agrees to arrange for the transportation of such freight. CAPABLE will use its best efforts to arrange for such freight to be transported from its designated origin(s) to its appointed destination(s) by a motor carrier authorized to operate as such by the FMCSA and the United States Dept. of Transportation (“USDOT”). CAPABLE will confirm that any motor carrier with whom it arranges to haul CUSTOMER’s freight (sometimes referred to as “CARRIER”) holds a current license and is authorized to operate as a motor carrier by the FMCSA and USDOT and that such motor carrier has secured and maintains in place all insurance required to be carried under federal regulations for carriers of non-hazardous or hazardous materials. CAPABLE may, but is not required to, also take such other measures as CAPABLE deems appropriate with respect to selection of motor carriers to transport CUSTOMER’s freight. CAPABLE reserves the right to decline or refuse to arrange for the transportation of any freight.
2.2 Information Pertaining to Freight.
CUSTOMER will provide CAPABLE timely and accurate information regarding the freight to be transported including but not limited to: pick-up and delivery locations; description of the freight including, but not limited to, type, dimensions, weight, and quantity; special handling, temperature, storage, and security requirements; and other pertinent information regarding the freight. All rate quotes and other pricing by CAPABLE are prepared based upon the type of freight, dimensions and weight, and other information pertaining to the freight provided by CUSTOMER. If the information provided by CUSTOMER is not accurate then; (a) CAPABLE may decline to arrange to transport the freight and/or may instruct CARRIER not to transport the freight and CUSTOMER shall pay CAPABLE for any reasonable charges incurred by CAPABLE including but not limited cancellation fees charged by CARRIER; or (b) CAPABLE may make arrangements for additional transportation services beyond those included in the original quote and CUSTOMER shall pay CAPABLE the actual cost plus a reasonable markup for such increased or additional transportation services including but not limited to changes in types of equipment and the need for over-weight/over-dimensional permits, pilot cars, pole cars, route surveys, specialized or alternative routing, restricted hours for transport, utility company support in moving or disconnecting overhead power lines, etc., state highway patrol support, local city planning support, and/or various other requirements.
2.3 Broker’s Bond.
CAPABLE will at all times maintain a broker’s security bond in at least the minimum amount required by law.
2.4 Agreements with Carriers.
CAPABLE will endeavor in each case to enter into a written agreement with the carriers with whom it arranges to haul CUSTOMER’s freight, which, among other things, will define the roles and terms that CAPABLE and such carrier will undertake with respect to such freight, provided that CAPABLE may from time to time enter into a different agreement with carriers as CAPABLE determines to be appropriate in CAPABLE’s sole discretion. CUSTOMER may request that CAPABLE provide it with a copy of the form agreement that CAPABLE typically enters into with carriers.
2.5 Payment to Carriers for Freight Charges.
CAPABLE will be responsible to pay each of the carriers with whom it arranges to transport CUSTOMER’s freight the appropriate amount of freight charges to be paid to such carriers. CAPABLE may require its retained carriers to agree in writing to waive any and all freight charge claims against CUSTOMER or the consignee and to agree to look exclusively to CAPABLE for payment of freight charges. Provided CUSTOMER fulfilled its obligations hereunder, including payment to CAPABLE, CAPABLE will indemnify and hold harmless CUSTOMER from claims for freight charges from any carrier with whom CAPABLE arranges to transport CUSTOMER’s freight up to the amount of freight charges that CAPABLE has agreed in writing to pay.
2.6 Bills of Lading.
CAPABLE’s role with respect to any freight tendered is that of a broker. Accordingly, each carrier with whom CAPABLE arranges to haul CUSTOMER’s freight is required to issue or adopt a bill of lading in compliance with 49 C.F.R. S 373.101. The retained carrier’s name and MC# should be listed on any and all bills of lading. If CAPABLE’s name is inadvertently or otherwise listed on a bill of lading or other shipping document as the carrier or in any capacity other than as a “third-party bill to” party or as a broker, such listing shall be deemed to be for convenience only and shall not change, alter, modify or be construed to change or modify CAPABLE’s sole role as the broker.
2.7 No Authority to Control the Means by which Carrier Performs Services.
CUSTOMER acknowledges that CAPABLE’s role is simply to arrange for transportation of freight by a licensed motor carrier. Neither CAPABLE nor CUSTOMER has any right to control the means by or manner in which any carrier engaged by CAPABLE performs its functions in transporting and delivering the subject freight. The means and manner by which a carrier accomplishes the task of delivery of the subject freight by reasonable dispatch is in the carrier’s sole discretion. CAPABLE cannot and shall not exercise any control over the manner in which a carrier performs its services or a carrier’s operations, nor does CAPABLE retain any right to control or otherwise supervise a carrier or a carrier’s employees or other agents. A carrier engaged by CAPABLE shall be solely responsible for any and all management, control, selection, governance and discipline of its employees, agents, owner/operators, and equipment; and CAPABLE has no power or authority to hire or terminate the employment of any of a carrier’s employees or other agents. Even though CAPABLE, CUSTOMER, shippers/consignors, consignees, or other persons or entities may from time to time provide a retained carrier with verbal or written instructions suggesting routes, types of equipment, methods of securing freight, methods of loading or unloading freight or other means of transporting and delivering the subject freight, such suggestions, if given, shall be for informational purposes only and the carrier shall retain the right to choose routes, times that the carrier will perform its services, employees, equipment to be used, methods of securing loads, methods of loading or unloading freight and all other means of transporting and delivering the freight. Even though a carrier may consider instructions, guidelines and/or other suggestions from CAPABLE, CUSTOMER, shippers/consignors and/or consignees, the carrier alone shall remain ultimately responsible to choose and control the method of loading, unloading, and securing the load and transporting the load and so doing in a manner that the same may be loaded, transported, and unloaded safely without damaging the freight or endangering the public or any person or entity.
2.8 Independent Contractor Relationship with Carriers.
Customer acknowledges and agrees that: (a) CAPABLE’s relationship to any carriers with whom it arranges to transport CUSTOMER’s freight is and shall at all times be that of an independent contractor and no facts, agreements or other considerations shall be construed to be inconsistent with that status; (b) no term or provision of any agreement with a carrier or any act or omission of CAPABLE or a carrier shall be construed for any purpose to express or imply any joint venture, partnership, principal/agent, master/servant, fiduciary, employer/employee or other relationship between CAPABLE and a carrier, other than that of an independent contractor relationship; and (c) no employees or other agents of a carrier shall be construed under any circumstance to be the employees, servants, or agents of CAPABLE, CUSTOMER, the shipper/consignor, the consignee, or any “bill to” party. Likewise, neither a carrier, nor any of its employees or agents, shall have any authority to act on behalf of CAPABLE or to alter in any manner any contractual or other relationship of CAPABLE with CUSTOMER, shippers/consignors, consignees, or any other person or entity. Neither CAPABLE, nor any carrier are authorized to use the formal name, any business or trade name or any derivative thereof, nor any trademark or service mark of the other or of any other company with which either CAPABLE or a carrier may be affiliated. Any carrier that CAPABLE arranges to transport any of CUSTOMER’s freight shall bear all costs of and shall provide all labor, wages, payroll, equipment, fuel, maintenance, insurance, federal, state and local payroll taxes and any other taxes, unemployment insurance, pensions, social security payments, workers’ compensation insurance, and all other costs associated with transportation of the subject freight and performance of such carrier’s transportation services. CAPABLE shall not be liable for or responsible to pay any such costs. Neither CAPABLE nor any carrier will hold itself out to be anything but an independent contractor with respect to each other and CUSTOMER shall not construe or assert CAPABLE or any carriers to be anything but independent contractors with respect to each other.
Section 3 — Cargo Loss or Damage and Delay Claims.
3.1 Cargo Loss or Damage and Delay Claims
CUSTOMER acknowledges and agrees that CAPABLE, as a broker, has no liability to any person or entity for any delay in delivery or loss of or damage to any cargo transported by a carrier retained by CAPABLE hereunder. CUSTOMER, for itself and any of its customers, vendors, shippers, consignors, receivers, consignees, and any others claiming a beneficial or other interest in any cargo and any of their respective insurers, successors, and assigns hereby acknowledges and agrees: (a) to look solely to the carrier arranged by CAPABLE to transport any subject cargo for recovery of any loss of or damage to such cargo or delay in delivery of such cargo and agrees to hold CAPABLE harmless with respect to any claims for loss of or damage to any cargo tendered to CAPABLE or and to hold CAPABLE harmless with respect to any claims for delay in delivery of any such cargo; (b) that all claims for loss or damage to cargo must be resolved with the responsible carrier pursuant to 49 U.S.C. § 14706 et seq. and 49 C.F.R. § 370 et seq., (c) that CAPABLE is not liable for any loss or damage to cargo or any delay in the delivery of cargo by any cause, (d) that CAPABLE has not agreed (expressly, implicitly or otherwise) to be liable or responsible for loss of or damage to any cargo moved hereunder or damages in relation to any delay in the delivery of the freight; and (e) to indemnify and defend and hold harmless CAPABLE against any claims for loss of or damage to the cargo, and against any claims for delay in delivery of any such freight. CAPABLE may, at its sole option, assist CUSTOMER or others in pursuing claims for loss of or damage to cargo or delay in delivery of freight against the responsible carrier; but CAPABLE shall not be subject to any liability for doing so or otherwise with respect to any such claim. If CAPABLE does pay any amount to CUSTOMER or other interested party in connection with a cargo loss or damage or delay claim and such party accepts that payment, then CUSTOMER agrees that CAPABLE is deemed to have been assigned all of CUSTOMER’s and/or such other party’s rights and interests in such claim, including CUSTOMER’s right to a claim for loss or damage under 49 U.S.C. § 14706. If a written assignment is required, CUSTOMER agrees to provide the same at CAPABLE’s request any time after payment is made.
3.2 Limitation of Liability for Any Loss, Damage or Delay Claim
If CAPABLE is held or found to be liable for any loss of or damage to any cargo or any delay damages despite the provisions of the foregoing section 3.1, then such liability of CAPABLE to CUSTOMER shall be limited to the lesser of an amount equal to $0.50 per pound up to a maximum of $5,000 or a refund of the freight charges applicable to the specific load lost or damaged. In no event shall CAPABLE be liable for any special, incidental, consequential or compensatory damages relating to any loss or damage to any cargo or any delay in delivery.
3.3 High Value Loads.
Most carriers CAPABLE retains to transport freight maintain cargo loss and damage insurance in the amount of $100,000, subject to various exclusions and deductible levels. Should CUSTOMER offer, refer or tender freight to CAPABLE that is worth greater than $100,000, CUSTOMER shall give CAPABLE notice of such greater value and the value of such freight in writing reasonably in advance (preferably forty-eight (48) hours in advance) of the requested pick-up date. CAPABLE may, at its option, assist CUSTOMER in obtaining excess cargo insurance or shippers’ interest insurance where the cargo can be insured for amounts greater than $100,000; however, unless there is a written agreement between CUSTOMER and CAPABLE signed by the President of CAPABLE, together with a certificate of insurance or notice of increased insurance from the insurance company in advance of the pick-up date, no such additional coverage shall be obtained or afforded and CAPABLE shall not have any liability therefore or with respect to any loss of or damage to such freight. If, notwithstanding these Terms and Conditions, CAPABLE is somehow found to be liable, its liability to CUSTOMER shall be limited as set forth in section 3.2 hereof.
3.4 Time-Sensitive Freight.
As set forth herein, CAPABLE shall not be liable for any claims for delay in delivery of freight. If CUSTOMER has freight that must be delivered in a time-sensitive manner, CUSTOMER shall notify CAPABLE in writing of such fact in advance of pick-up of such freight and shall set forth in such writing the types of foreseeable damages it anticipates suffering for delay in delivery, along with an estimate of damages to be suffered should delivery of such freight be delayed. CAPABLE will endeavor to advise the retained carrier of the time-sensitive nature of the freight; however, CAPABLE shall not be liable for any delay in delivery of such freight and CUSTOMER’s sole remedy, if any, shall lie with the carrier. CUSTOMER acknowledges and agrees that neither CUSTOMER, CAPABLE, or any other party involved in the movement will place requirements upon a carrier or request that a carrier meet a pick-up or delivery schedule that will or may require a carrier or its driver(s) to violate any laws relating to safety or which may require violation of any state, federal or local statute, rule or regulation pertaining to safety, including, but not limited to, those pertaining to hours of service; and, that all such requests and requirements for pick-up and delivery will enable a carrier to operate its business and transport such load in a safe and prudent manner and in strict and full compliance with all state, federal, and local statutes, rules, and regulations. Additionally, if any failure or delay in pick-up or delivery of freight shall be the result of an occurrence or event that is outside of the control of CAPABLE and/or the carrier(s) that CAPABLE arranges to transport the freight, including, but not limited to, such causes as severe weather, fires, floods, natural disasters and catastrophes, highway accidents, roadway blockage, closures and/or re-routing, traffic congestion, fuel shortages, acts of God, war or enemy action, civil commotion, riots or insurrection, epidemics, re-routing, or other similar occurrences or event, neither CAPABLE or the carrier shall have any liability for such failure or delay in service.
3.5 HAZMAT Loads.
Should CUSTOMER request that CAPABLE arrange for transportation of freight that constitutes hazardous materials, whether such materials meet the definition contained in 40 C.F.R. § 261.1 et seq. or other definitions or designations, CUSTOMER shall notify CAPABLE of the same; and, CUSTOMER shall comply with all applicable laws and regulations relating to the transportation of hazardous materials, including, but not limited to, those defined in 49 C.F.R. § 172.800, § 173 and § 397 et seq. CUSTOMER shall further defend, indemnify and hold CAPABLE harmless from any penalties or liability of any kind, including reasonable attorney fees, arising out of CUSTOMER’s failure to comply with applicable hazardous materials laws and regulations and/or any action arising out of the movement, delivery, or clean-up of hazardous materials and/or injury or death caused by the same.
3.6 Canceled Loads.
If CUSTOMER requests that CAPABLE arranges for a carrier to transport freight and such transport is subsequently canceled or delayed beyond the requested pick-up time and the retained carrier has sent a truck or equipment or has otherwise incurred expenses in connection with such freight, CUSTOMER agrees to pay to CAPABLE the amount of costs and expenses incurred by such carrier, plus ten percent (10%) of such amount. CAPABLE is obligated to pass through any such payment to the retained carrier.
3.7 Delay/Detention in Loading at Origin or Unloading at Destination.
Carriers arranged by CAPABLE generally allow a certain amount of “free time” (typically two (2) hours) for the loading of freight at origin and unloading of freight at the destination. CUSTOMER shall defend, indemnify and hold CAPABLE harmless for any amount of time in excess of the “free time” allowed by the carrier arranged by CAPABLE for which such carrier is detained for loading, unloading, or otherwise at the origin or destination.
Section 4 — Payment Terms
4.1 Payment Terms.
CAPABLE shall invoice CUSTOMER for its services in arranging for the transportation of freight in accordance with the rates and charges agreed to by CAPABLE and CUSTOMER. All charges owing to CAPABLE are due to be paid within thirty (30) days of the invoice date, without any deduction or setoff. CAPABLE shall apply CUSTOMER’s payment to the invoice(s) specified on the remittance advice, if any. Otherwise CAPABLE may apply payments to such invoice(s) or other amounts owing from CUSTOMER as CAPABLE deems appropriate in its sole discretion. If any charges owing to CAPABLE are not paid by the due date, interest shall accrue on the amounts owing at the rate of 1.5% per month, compounded monthly. CUSTOMER shall also be liable to pay CAPABLE for any and all costs incurred by CAPABLE in collecting the amounts owing, including, but not limited to, reasonable attorney fees.
4.2 CAPABLE Enforcement of Rights of Carrier.
Should CUSTOMER fail to pay CAPABLE the full amount owing to CAPABLE within the time-period provided for herein and CAPABLE has paid the carrier(s) with which it arranged for transportation of CUSTOMER’s freight, then CAPABLE shall be deemed to be subrogated to and to have received an assignment of all of the carrier’s rights under the bill of lading or other applicable documents or law to collect from any other potentially liable parties, including, but not limited to, any and all shippers, consignors, receivers, consignees, or other parties having a beneficial interest in the freight transported or the services provided.
Section 5 — Insurance
5.1 Broker’s Bond.
CAPABLE will at all times maintain the bond or other financial security of the type and in the minimum amount required by law 49 U.S. Code 13906(b)(3).
5.2 Insurance obtained by CAPABLE.
Other than a broker’s security bond or trust fund, CAPABLE is not required to carry any insurance pertaining to the services CAPABLE provides hereunder. By way of information and not by way of requirement, however, CAPABLE generally carries and maintains the following insurance coverage in the amounts indicated:
a) Comprehensive General Liability Insurance $1,000,000;
b) Contingent Cargo Liability Insurance $100,000;
c) Errors and Omissions Insurance (excludes bodily injury) $100,000.
Section 6 — Indemnification
6.1 Indemnification of CAPABLE.
CUSTOMER shall each defend, indemnify and hold CAPABLE harmless against any claims, actions, damages and causes of action arising out of or relating to CUSTOMER’s negligent or other tortuous acts or omissions or arising out of or relating to CUSTOMER’s failure to fulfill any obligations it may have to hereunder or otherwise.
Section 7 — Independent, Non-Exclusive Relationship
7.1 Independent Contractor Relationship.
The relationship between CAPABLE and CUSTOMER shall at all times be that of an independent contractor and nothing contained herein or otherwise shall be construed to be inconsistent with that status. No term or provision of this or any other agreement or any act or omission of either party shall be construed for any purpose to express or imply any joint venture, partnership, principal/agent, master/servant, fiduciary, employer/employee or other relationship between CAPABLE and CUSTOMER, other than that of an independent contractor relationship. No employees or other agents of CUSTOMER shall be construed under any circumstance to be the employees, servants, or agents of CAPABLE or any applicable carrier. Likewise, no employees or other agents of CAPABLE shall be construed under any circumstance to be the employees, servants or agents of CUSTOMER, the shipper/consignor, the receiver/consignee, or any other party. Neither CUSTOMER, nor any of its employees or agents, shall have any authority to act on behalf of CAPABLE or to alter in any manner any contractual or other relationship of CAPABLE with its carriers, CUSTOMERs, shippers/consignors, receivers/consignees, vendors, or any other person or entity. Likewise, neither CAPABLE, nor any of its employees or agents, shall have any authority to act on behalf of CUSTOMER or to alter in any manner any contractual or other relationship of CUSTOMER with its customers, carriers, shippers/consignors, receivers/consignees, vendors, or any other person or entity. Neither CAPABLE nor CUSTOMER are authorized to use the formal name, any business or trade name or any derivative thereof, nor any trademark or service mark of the other party or of any other company with which either party may be affiliated, without express written permission to the contrary. CUSTOMER and CAPABLE shall each bear all of their respective costs of and shall provide all labor, wages, payroll, equipment, insurance, federal, state and local payroll taxes and any other taxes, unemployment insurance, pensions, social security payments, workers’ compensation insurance, and all other costs associated with their respective businesses and arrangement for and transportation of the subject freight and performance of their respective services. Neither CAPABLE nor Carrier will hold itself out to be anything but an independent contractor with respect to the other, nor will CAPABLE or CUSTOMER assert that they maintain any relationship with the other that is different from that of an independent contractor.
7.2 Non-Exclusive Use.
CAPABLE is not restricted from providing freight brokerage or other services to persons or entities different from CUSTOMER; and, subject to the provisions hereof relating to CUSTOMER tendering freight directly to carriers which CAPABLE has arranged to haul freight offered, tendered or referred from CUSTOMER, CUSTOMER is not restricted from offering, tendering, or referring freight to other brokers, freight forwarders, other logistics providers or motor carriers different from CAPABLE.
7.3 No Control or Right of Control by CAPABLE or CUSTOMER.
Neither CAPABLE nor CUSTOMER has the right to control nor shall either exercise any control over the manner in which the other performs its services hereunder or carries on their respective operations. Neither CAPABLE nor CUSTOMER retains any right to control or otherwise supervise the other’s employees or other agents. CUSTOMER and CAPABLE shall each be solely responsible for any and all management, control, governance, discipline, of their respective employees and agents; and, neither has any power or authority to hire or terminate the employment of any of the other’s employees or other agents.
Section 8 — Confidentiality and Protection of Business Relationships
8.1 Covenant to Not Tender Freight Directly to Carrier Introduced by CAPABLE
CUSTOMER recognizes that CAPABLE has spent substantial time, money and resources developing a reputation in the freight brokerage industry and developing business relationships with carriers through which it arranges transportation of freight of CUSTOMER and others and that CAPABLE is providing a valuable service to CUSTOMER in arranging for transportation of CUSTOMER’s freight. Therefore, as part of the consideration for CAPABLE arranging for the transportation of CUSTOMER’s freight, CUSTOMER agrees that for a period of twelve (12) months following the date of any load of freight for CUSTOMER that CAPABLE arranged to be transported by a particular carrier, that CUSTOMER will not offer, tender or refer freight directly to that particular carrier, unless during the twelve (12) month period immediately preceding the first load of freight of CUSTOMER that CAPABLE arranged to be hauled by that particular carrier, such carrier had hauled sufficient freight directly for CUSTOMER (and not arranged through CAPABLE or another broker or other party) to generate at least $10,000 of freight charges. If CUSTOMER violates the provisions of this section, then CUSTOMER agrees to pay CAPABLE, as liquidated damages, an amount equal to fifteen percent (15%) of the gross amount that CUSTOMER has agreed to pay such carrier for transporting freight for CUSTOMER for a period of twelve (12) months following the date of the last load of CUSTOMER’s freight that CAPABLE arranged to be transported by that particular carrier.
8.2 Confidential Information
CUSTOMER agrees that it shall protect and keep confidential any and all non-public, confidential, or proprietary information of CAPABLE, including, but not limited to, the identity of CAPABLE’s carriers, carrier lists, freight and brokerage rates, pricing, freight volume requirements, or the like and that CUSTOMER shall not disclose the same, without the prior written approval of CAPABLE.
Section 9 — Miscellaneous
9.1 Governing Law/Jurisdiction:
Negotiations for the offering, tendering and/or referral of freight to CAPABLE are deemed to have been conducted within the State of Texas. Accordingly, except to the extent (if any) that they are preempted by federal law, the laws of the State of Texas shall govern the construction and interpretation of these Terms and Conditions and the dealings of CUSTOMER with CAPABLE. CUSTOMER expressly submits to the jurisdiction of the Courts of the State of Texas (Hays County) and the United States District Court for the Western District of Texas and agrees that jurisdiction and venue shall be proper in any such court chosen by CAPABLE and CUSTOMER waives any claim or defense that such Courts will be an inconvenient forum.
9.2 Remedies
In addition to any other remedies that may be available to CAPABLE at law or in equity, all provisions of these Terms and Conditions may be specifically enforced, however, the failure of CAPABLE to promptly enforce such provisions shall not be construed to be a waiver of CAPABLE’s rights hereunder. In addition, CUSTOMER recognizes that the payment of damages hereunder may not fully compensate CAPABLE for CUSTOMER’s breach of the provisions of these Terms and Conditions and that CAPABLE will likely suffer irreparable harm from such a breach. Accordingly, CUSTOMER agrees that if it breaches, violates, or threatens to breach or violate the provisions of these Terms and Conditions, then CAPABLE will be entitled to injunctive relief prohibiting CUSTOMER’s breach, violation or continued breach or violation without the need of CAPABLE having to post any bond in connection with such injunctive relief.
9.3 Miscellaneous.
These Terms and Conditions and any Load Confirmations issued to CUSTOMER by CAPABLE, via email or otherwise, and pertaining to freight offered, referred or tendered to CAPABLE constitute the entire agreement between the CAPABLE and CUSTOMER pertaining to CAPABLE’s arranging for the transportation of CUSTOMER’s freight and are intended to be a complete integration of terms and cannot be altered, except through a written agreement signed by the President of CAPABLE. No other prior or contemporaneous agreements exist between CAPABLE and CUSTOMER, except as set forth in these Terms and Conditions. If any term or provision hereof is held invalid or unenforceable by a court or tribunal of competent jurisdiction, such term or provision shall be deemed to be modified to be enforceable or, alternatively, shall be deemed to be severed here from, and shall not affect the remaining provisions hereof, which shall remain enforceable to the full extent allowed by law. The failure of either party to enforce a breach or waiver of any term, condition or provision hereof shall not be deemed to constitute a waiver of any subsequent failure or breach. These Terms and Conditions shall be binding upon and inure to the benefit of any successors and assigns of CAPABLE and/or CUSTOMER.