This independent contractor agreement (the “ Agreement ”) is made and entered into as of {todaysDate} (the “ Effective Date ”) between AMERICAN FREIGHT TRUCKING, INC. (the “ Company ”), a Utah Corporation, and {name}, an independent contractor (the “ Contractor ”) (collectively, the “ Parties ”).
The Company requests the Contractor to perform services for it as per Section 7 - Contractor Obligations of this Agreement and may request the Contractor to perform other currently unlisted services in the future; and
The Parties therefore agree as follows:
1.0. Independent Contractor Status.
1.1. The Parties intend that the Contractor be engaged as independent contractor of Company. Nothing contained in this Agreement will be construed to create the relationship of employer and employee, principal and agent, partnership or joint venture, or any other fiduciary relationship.
1.2. The Contractor may not act as agent for, or on behalf of, the Company, or to represent the Company, or bind the Company in any manner.
1.3. The Contractor will not be entitled to worker's compensation, retirement, insurance or other benefits afforded to employees of the Company.
2.0. Contractor Services.
2.1. During the Term, the Company may engage the Contractor to provide services set forth in Section 7 - Contractor Obligations (the "Services"), or other such services as mutually agreed upon in writing by the Parties.
2.2. The Company shall provide the necessary equipment to perform the Services. The Contractor shall provide the necessary required workforce as a Class A CDL driver to transport commodity freight shipments in interstate commerce delivering each tendered shipment to its designated destination, free of damage or loss.
2.3. The Contractor shall notify the Company of any change(s) to the Contractor’s schedule that could adversely affect the availability of the Contractor, whether known or unknown at the time of this Agreement, no later than 30 days prior to such change(s). If the Contractor becomes aware of such change(s) within the 30 day period, the Contractor shall promptly notify the
Company of such change(s) immediately.
2.4. The work performed by the Contractor shall be performed at a base rate set forth in Section 9 - Compensation and Reimbursement as well as the accompanying appendix at the end of the Agreement. The Contractor shall issue invoices to the Company's accounts payable department within 14 days of completing the Services, unless otherwise instructed by the Company, and
provide documentation as instructed by the Company's accounts payable department. The Company shall remit payment to the Contractor within 14 days of receiving the invoice from the Contractor.
2.5. The Company shall not be responsible for federal, state and local taxes derived from the Contractor's net income or for the withholding and/or payment of any federal, state and local income and other payroll taxes, workers' compensation, disability benefits or other legal requirements applicable to the Contractor.
3.0. Term and Termination.
3.1. This Agreement takes effect immediately as of the Effective Date, and remains in full force and effect until the Contractor has completed the Services (the "Term"), unless early termination occurs.
3.2. Terms of this Agreement shall be perpetual, provided that either party may terminate the Agreement by giving 30 days written notice to the other.
4.0. Indemnification
The Contractor shall indemnify and hold harmless the Company, its affiliates, and its respective officers, directors, agents and employees from any and all claims, demands, losses, causes of action, damage, lawsuits, judgments, including attorneys’ fees and costs, arising out of, or relating to, the Contractor’s services under this Agreement.
5.0. Protection of Company's Confidential Information.
5.1. Confidential Information
Company now owns and will hereafter develop, compile and own certain proprietary techniques, trade secrets, and confidential information which have great value in its business (collectively, “Company Information”). Company will be disclosing Company Information to Contractor during Contractor's performance of the Services. Company Information includes not only information disclosed by Company, but also information developed or learned by Contractor during Contractor's performance of the Services. Company Information is to be broadly defined and includes all information which has or could have commercial value or other utility in the business in which Company is engaged or contemplates engaging or the unauthorized disclosure of which could be detrimental to the interests of Company, whether or not such information is identified by Company. By way of example and without limitation, Company Information includes any and all information concerning discoveries, developments, designs, improvements, inventions, formulas, software programs, processes, techniques, know-how, data, research
techniques, customer and supplier lists, marketing, sales or other financial or business information, scripts, and all derivatives, improvements and enhancements to any of the above.
Company Information also includes third-party information which is in Company's possession under an obligation of confidential treatment.
5.2. Protection of Company Information.
Contractor agrees that at all times during or subsequent to the performance of the Services, Contractor will keep confidential and not divulge, communicate, or use Company Information, except for Contractor's own use during the Term of this Agreement to the extent necessary to perform the Services. Contractor further agrees not to cause the transmission, removal or transport of tangible embodiments of, or electronic files containing, Company Information without prior written approval of Company officers.
6.0. Company Obligations
6.1. Company will tend to necessary load related documentation and communication to help tender commodity freight shipments to Company for transportation in interstate commerce by Company within the scope of Company registered jurisdictions as per Company operating authority.
6.2. Company will seek, locate, match, bid on, negotiate rates and conditions, and bind freight quotes, contracts, or offerings.
6.3. Once an order is approved by Company, Company will transmit the necessary documents and information to Contractor directly.
6.4. When necessary and within Company capabilities, Company will attempt to assist Contractor with issues which may arise during load transit.
6.5. Company agrees to pay Contractor via ACH/Direct Deposit/Intra-bank fund transfer or via physical company check every two weeks for work performed in the prior two week period.
7.0. Contractor Obligations
7.1. Contractor agrees to deliver each tendered shipment to its designated destination, free of damage or loss.
7.2. Contractor agrees to fax or email all signed Freight Bills, signed Bill of Lading (BOL), or signed Proof of Delivery (POD) of all loads secured/arranged by Company and within 24 hours of signing.
7.3. Contractor agrees to maintain all proper licenses and permits as required by the USDOT and FMCSA as well as comply with all applicable State and Federal regulations pertaining to the area of intended operation, including, but not limited to compliance with new laws and ensuring that any changes to laws are complied with by the Contractor.
7.4. Contractor is liable for all loss, damage, or liability occasioned by the transportation of property arranged by Company while in the possession of Contractor.
7.5. Contractor shall never turn down a load tendered and dispatched by Company.
7.6. Contractor agrees to never involve themselves in fraudulent and/or unethical actions. If this occurs, Contractor agrees to pay Company for loss of business, both actual and estimated based on Contractor’s fraudulent and/or unethical actions.
7.7. Contractor agrees that the customer information being provided to Contractor by Company is the sole and exclusive property of Company. Neither it, nor any employee, agent, or subcontractor shall back solicit, directly or indirectly, communicate, or perform any service for compensation of any account provided by Company previously tendered to Contractor for transportation, nor shall it pass on or reveal any customer information obtained to any other person or company. Solicitation prohibited under this Agreement means participation in any conduct, whether direct or indirect, the purpose of which involves transportation and/or handling of property by Contractor for which Contractor does, or did in the past, provide such service for that customer under arrangements first made or procured by Company. Solicitation includes conduct initiated or induced by Contractor, or accepted by Contractor, upon inducement of aforementioned Company efforts.
7.8. Contractor agrees to function under the terms of the Agreement strictly as a duly permitted Contract and/or Common Carrier under ICC provisions and hereby waves any and all rate provisions, which may be contained in its published carrier tariffs.
7.9. Contractor agrees to indemnify Company and hold Company harmless for any damage to persons or property arising from Contractor performing its duties.
7.10. Contractor agrees to understand and abide by applicable freight and transport laws including, but not limited to, the Moving Ahead for Progress in the 21st Century Act (MAP21) and the Carmack Amendment. Company will take no action to ensure Contractor compliance, and Contractor agrees to indemnify Company against any violations of any applicable laws.
7.11. Upon electronic forwarding of all load related documentation to Contractor by Company, the services of Company have been fully performed.
8.0. Other Provision
8.1. Company bears NO financial or legal responsibility in transactions performed and will not be liable for any incidental, consequential, or indirect damages for the loss of profits, or business interruption arising out of the use of the service. Contractor agrees to hold harmless, before during and after the contract, all direct or indirect damages resulting from Contractor hauling of
shipper's freight. This includes, but is not limited to loading/unloading problems or issues, delays, overages, shortages, damages, billing and collection issues, and hours of service (HOS).
8.2. Contractor is responsible for storing and submitting paperwork related to Company completed loads directly to the Company dispatch office within 24 hours.
8.3. Contractor agrees to operate under the Company Motor Carrier Authority; Contractor is responsible for complying with all USDOT and FMCSA regulations and to notify Company of any and all applicable changes to CDL status and operating authority.
8.4. This Agreement shall be deemed effective on the first date Contractor and Company commence business together as described in the whole of this Agreement. Contractor hereby agrees that the provisions herein properly express the complete understanding as contained in any prior agreement either written or verbal.
9.0. Compensation and Reimbursement.
Contractor shall be compensated and reimbursed for the Services as set forth in the Appendix. Completeness of work product shall be determined by Company in its sole discretion, and Contractor agrees to make all revisions, additions, deletions or alterations as requested by Company. No other fees and/or expenses will be paid to Contractor, unless such fees and/or expenses have been approved in advance by the appropriate Company executive in writing. Contractor shall be solely responsible for any and all taxes, Social Security contributions or payments, disability insurance, unemployment taxes, and other payroll type taxes applicable to such compensation. Contractor hereby indemnifies and holds Company harmless from, any claims, losses, costs, fees, liabilities, damages or injuries suffered by Company arising out of
Contractor's failure with respect to its obligations in Section 7 of this Agreement.
10.0. Interpretation and Governing Law
This Agreement is to be interpreted under Utah law and shall be governed by and construed in accordance with laws of the State of Utah without giving effect to any choice of law or conflict of laws provision or rule (whether of the State of Utah or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Utah.
11.0. Attorney Fees
In the event that litigation commences to enforce this Agreement, the prevailing party shall be entitled to reasonable attorney’s fees.
12.0. Jurisdiction and Venue
Company and Contractor hereby consent to and agree to submit to the jurisdiction of the Federal and State courts located in Salt Lake County, Utah in connection with any claims or controversies arising out of the Agreement enclosed herein.
13.0. Business Licenses, Permits, and Certificates
Contractor represents and warrants that Contractor will comply with all federal, state, and local laws requiring drivers and other licenses, business permits, and certificates required to carry out the services to be performed under this Agreement.
14.0. State and Federal Taxes
Company will not:
14.1. Withhold FICA (Social Security and Medicare taxes) from Contractor's payments or make FICA payments on Contractor's behalf.
14.2. Make state or federal unemployment compensation contributions on Contractor's behalf, or
14.3. Withhold state or federal income tax from Contractor's payments.
14.4. Contractor shall pay all taxes incurred while performing services under this Agreement—including all applicable income taxes and, if Contractor is not a corporation, self-employment (Social Security) taxes. Upon demand, Company shall provide Contractor with proof that such payments have been made.
15.0. Miscellaneous Provisions.
15.1. This Agreement, and any accompanying appendices, duplicates, or copies, constitutes the entire agreement between the Parties with respect to the subject matter of this Agreement, and supersedes all prior negotiations, agreements, representations, and understandings of any kind, whether written or verbal, between the Parties, preceding the date of this Agreement.
15.2. This Agreement may be amended only by written agreement duly executed by an authorized representative of each party (email is acceptable).
15.3. If any provision or provisions of this Agreement shall be held unenforceable for any reason, then such provision shall be modified to reflect the parties’ intention. All remaining provisions of this Agreement shall remain in full force and effect for the duration of this Agreement.
15.4. This Agreement shall not be assigned by either party without the express consent of the other party.
15.5. A failure or delay in exercising any right, power or privilege in respect of this Agreement will not be presumed to operate as a waiver, and a single or partial exercise of any right, power or privilege will not be presumed to preclude any subsequent or further exercise, of that right, power or privilege or the exercise of any other right, power or privilege.
15.6. This Agreement is to be governed by and construed in accordance with the laws of the State of Utah without reference to any principles of conflicts of laws, which might cause the application of the laws of another state. Any action instituted by either party arising out of this Agreement will only be brought, tried and resolved in the applicable federal or state courts having jurisdiction in the State of Utah. EACH PARTY HEREBY CONSENTS TO THE EXCLUSIVE PERSONAL JURISDICTION AND VENUE OF THE COURTS, STATE AND FEDERAL, HAVING JURISDICTION IN THE STATE OF Utah.
The Parties are signing this Agreement on the date stated in the introductory clause.
APPENDIX
1. OLD: Base Rate (per mile): $0.42 loaded + empty/deadhead
NEW: Base Rate (per mile): $_____ loaded + empty/deadhead
2. OLD: Trips over two stops: $30 + base rate
NEW: $30 ea. After 1st pick/drop
3. OLD: Breakdown pay - $50/day
NEW: Breakdown pay - $100/day
4. OLD: Detention - $12.50/hr after 4 hrs. w/ a maximum of $50
NEW: Detention - $15.00/hr after 3 hrs. w/ a maximum of $60
5. OLD: Layovers - $50/day
NEW: Layovers - $100/day
6. OLD: Hotel stay - Reimbursed with receipt up-to $50/night
NEW: Hotel stay - Reimbursed with receipt up-to $100/night
Tollways - Company will pay tollway charges on an automated basis utilizing electronic transponders provided by the Company to the Contractor. In the event of a device malfunction or unavailability of such automated technology, the Contractor is asked to pay for the toll and retain a receipt for reimbursement which will appear on the Contractor’s next pay period, marked as a reimbursement back to the Contractor.
Contractor is responsible for all charges on their designated tollway accounts until they notify the Company that their transponder has been lost or stolen.
Weigh Stations - A weigh station transponder will be provided to help make your trips more comfortable and efficient. Contractor is responsible for all charges on their weigh station account until they notify the Company that their transponder has been lost or stolen.
Fuel + DEF - Tractor Diesel, Diesel for Refrigeration Unit, DEF Fluid (Please purchase DEF in bulk when fueling, do not buy individual containers from truck stops)
Additives - Oil, Windshield Washer Fluid, Coolant, Diesel Additives, Treatments, and Anti Gel (Company will supply Contractor with necessary additives when arriving at the home terminal)
Truck Wash and Trailer Washouts - Company will reimburse Contractor.
Reimbursement Qualification - All reimbursement requests require a physical receipt showing date, location, and dollar amount.