1. DEFINITIONS.

“Affiliate” shall mean an entity controlling, controlled by or under common control with that party.

“Aggregate Data” means Customer-Supplied Data that has been aggregated and de-identified using commercially reasonable practices such that it cannot reasonably be used to identify a particular individual natural person.

“Agreement” means the Co-Services Agreement together with these Co-Services Terms & Conditions.

“Co-Mail Services” means KODI’s cooperative mailing program which merges individual mail files into large quantity mail pools to create efficiencies in postal pre-sort and to help drive postal savings for KODI customers. Co-Mail Services include all of the work, including shipping, required to produce an applicable Co-Mail pool and to transport Customer product from an KODI production facility to the applicable USPS drop point.

“Co-Mail Agreement” means the Co-Mail Agreement executed by the Parties.

“Customer Product” means the Customer material which is submitted for participation in KODI’s Co-Mail Services program.

“Customer-Supplied Data” means the data and information supplied by Customer under the Agreement, including but not limited to, name and address files for Customer clients.

“Data Delegation Form” means the Informed Visibility Mail Tracking & Reporting Data Delegation Request Form which is required as part of Customer onboarding for the Co-Mail program.

“Effective Date” shall be the date the Co-Mail Agreement is signed by both Parties.

“Prudent Industry Practices” shall mean that level of skill and diligence to be expected in the postal optimization industry in performance of activities similar to the Services.

“Services” means Co-Mail Services, Transportation Services, and any other services performed by KODI under the Co-Mail Agreement.

“Transportation Services” means transportation and associated services of Customer Product to and from the location of origination, any KODI processing center, and the applicable US Postal Service destination point.

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2. KODI SCOPE OF WORK.

KODI shall perform the Services for Customer as provided in the Agreement. Transportation Services shall be provided in accordance with the Transportation Services terms and conditions attached hereto as Attachment 1.

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3. CUSTOMER OBLIGATIONS.

In addition to other Customer obligations contained herein, Customer shall execute a Data Delegation Form and shall comply with all requirements of the Co-Mail Guide (insert link) and Co-Mail Schedule (insert link), which may be updated from time to time by KODI.

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4. TERM OF AGREEMENT.

The initial term shall commence on the Effective Date and shall expire on December 31 of that year (the “Initial Term”). Upon expiration of the Initial Term, this Co-Mail Agreement shall be renewed from year to year thereafter on January 1, unless either party gives written notice to the other party, no later than forty-five days prior to the expiration of the then-current term, with such termination to become effective on December 31 of the then-current year.

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5. TERMINATION. 

(a) Termination for Default or Insolvency. Either party may terminate this Agreement for default if the other party

(i) fails to make any payment when due and fails to cure such non-payment within fifteen (15) days after written notice from the non-breaching party, or

(j) makes an assignment in violation of Article 15 (Assignment);

(k) materially breaches any non-payment related obligation which does not have a stated remedy and fails to remedy such material breach within sixty (60) days after written notice from the non-breaching party or, if it is not possible to cure such breach within sixty (60) days, fails to commence to cure the breach within thirty (30) days,

(l) becomes insolvent or bankrupt, assigns all or a substantial part of its business or assets for the benefit of creditors, permits the appointment of a receiver for its business or assets, becomes subject to any legal proceeding relating to insolvency, reorganization or the protection of creditors' rights or otherwise ceases to conduct business in the normal course. For any default, other than a default for payment, this provision for termination for default may only be exercised by notice in writing within ninety (90) days of the event giving rise to the default, effective thirty (30) days from such written notice.

In the event of a termination for default or insolvency by Customer for default or insolvency of KODI, Customer shall pay KODI Customer shall pay KODI all payments required under this Agreement for KODI’s performance prior to the effective date of such termination and all payments due prior to such termination effective date.

(b) Other Termination Rights. Either Party may terminate this Agreement as provided in Section 12 (Changes) and Section 13 (Force Majeure) upon written notice, provided that, the termination shall become effective fifteen (15) days after the non-terminating party’s receipt of the termination notice. Customer may terminate as provided in 6(b)(iii) (Customer Termination for Convenience). Customer shall pay KODI all payments required under this Agreement for KODI’s performance prior to the effective date of such termination and all payments due prior to such termination effective date.

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6. PRICING, ADJUSTMENTS & TAXES.

(a) Pricing.

During the initial term, Customer shall pay KODI for the Services in accordance with the pricing listed in the Co-Mail Agreement, including the pricing for Transportation Services included in Attachment 1 to the Co-Mail Agreement, and subject to the terms and conditions of these Co-Mail Terms & Conditions. Each November 1 after the Initial Term Effective Date, KODI shall publish the pricing which will apply to Services performed in the following calendar year, beginning on January 1. Notwithstanding the foregoing, KODI may also implement price adjustments from time to time during a calendar year in accordance with Sections (b)(i) and (ii) below.

(b) Price Adjustments

(i) Co-Services Pricing Adjustments. In addition to adjustments in accordance with Section 12 (Changes), the Co-Mail Services pricing may be adjusted from time to time in connection with changes in market conditions (including labor costs) and/or in USPS program rules, requirements, rates and/or regulations, and similar types of changes or impacts. KODI will provide Customer a minimum of thirty (30) days prior written notice of any such a change.

(ii) Transportation Services Pricing Adjustments. KODI will periodically review and adjust the pricing for Transportation Services set out in Attachment 1 to the Co-Mail Agreement, in connection with changes in transportation market conditions, Customer's distribution pattern, Customer’s volume, changes in USPS or other rates or regulations, or similar types of changes or impacts. KODI will provide Customer a minimum of thirty (30) days prior written notice of any such change.

(iii) Customer Termination for Convenience. Customer may terminate this Agreement by providing written notice to KODI within thirty (30) days after receipt of an adjusted pricing notice under (i) or (ii) above, provided that, termination shall become effective sixty (60) days after KODI’s receipt of the termination notice, and Customer’s payment of all amounts due for work performed as of the termination effective date. For the avoidance of doubt, in the event Customer provides a written notice of termination as provided herein, the original, unadjusted pricing shall remain in effect through the effective date of the termination, unless Customer fails to pay all amounts due by the termination effective date, in which case, the adjusted rates will apply up to and including the date when all amounts are paid and the termination becomes effective. In the event of termination as provided herein, Customer shall be responsible for all charges related to removal of Customer product existing at an KODI facility at the time of termination, including but not limited to, staging, handling, storage and similar charges.

(c) Taxes. Any sales, retailer’s occupation, service occupation, value added or use tax imposed on account of this transaction will be added as an extra charge.

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7. TERMS OF PAYMENT, DISPUTED PAYMENTS.

(a) Payment for Services. Customer shall pay KODI, without setoff, all amounts due for Services performed under this Agreement within fifteen (15) days of the date of an applicable invoice. Co-Mail and Transportation Services are not eligible for terms or early pay discounts, rebates or similar types of discounts. Invoices shall be issued as Services are performed. All payments will be made in U.S. dollars by check or electronic transfer to KODI’ designated bank account. KODI’ obligation to perform work hereunder is subject to timely payment of all invoices. In addition to KODI’ remedies contained in Section 5 (Termination), if Customer fails to pay KODI as required herein, Customer agrees to pay interest at the rate of one and one-half percent (1½ %) per month, or the lawful limit if less, on all amounts past due as well as all charges of collection including but not limited to reasonable attorney's fees. Failure to bill for interest due shall not constitute a waiver of KODI' right to charge interest.

(b) Payment for US Postal Service Charges. Customer shall establish an account with the United States Post Office that can receive electronic funds transfers (such as an Enterprise Payment System (EPS) account) with sufficient funds to cover all estimated postage charges, in advance of the mailing date of each issue. Customer shall be responsible for and shall pay directly to the US Postal Service all amounts due for postage on Items sent through the US Postal Service under this Agreement. Customer shall also be responsible for, and shall pay directly, all amounts charged by the US Postal Service for permits.

(c) Disputed Payments. Should any portion of an invoice become disputed, Customer shall promptly pay the undisputed portion of such invoice Customer shall notify KODI in writing no later than five (5) business days from receipt of an invoice if Customer disputes any portion of an invoice. Both parties agree to use their best efforts to resolve the disputed portion of the invoice promptly. KODI may have the right to change the terms of payment if there should be a substantial adverse change in Customer's credit standing or in the event that Customer does not comply with the terms of these provisions. In such event, KODI' obligation to perform further work will be subject to reaching mutual agreement on revised terms

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8. PAYMENT SECURITY.  

As security for payments of any sum due or to become due KODI under the terms of this Agreement, KODI shall have the right, if necessary, to retain possession of, and shall have a lien on all property owned by Customer and in KODI' possession, and all work in process and undelivered work.

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9. REPRESENTATIONS.

(a) Customer represents that it has the right to disclose Customer Supplied Data to KODI.

(b) Customer represents and warrants that the Customer Product does not (i) violate any applicable laws, including without limitation those concerning labeling, packaging or distribution, (ii) infringe any copyright, or otherwise violate the rights of or will cause damage or injury to other persons, and Customer agrees to indemnify and save KODI harmless from all losses, damages and expenses, including attorneys' fees, which KODI may suffer as the result of any such claim, damage or injury.

(c) Customer shall comply with the Co-Mail Guide and any applicable Postal Service requirements. KODI shall not be liable to Customer for any damages or claims whatsoever because of Postal Service rejection of mail by reason of sortation errors in any manner attributable to Customer’s noncompliance with the Co-Mail Guide requirements, this Agreement and/ or applicable Postal Service requirements.

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10. WARRANTY & GUARANTEE.  

(a) Warranty. KODI warrants to Customer that the Services shall be performed in a competent, diligent and workmanlike manner and in accordance with Prudent Industry Practices. The foregoing warranties shall expire sixty (60) days after KODI’ completion of the Services, which shall be the date when KODI delivers the Customer Product to the USPS drop point. All warranty claims must be made by Customer in writing fully setting forth the nature of the alleged defect no later than thirty (30) days after the expiration of the warranty period.

(b) Warranty Remedy. If a failure to meet the foregoing warranties is discovered during the warranty period, Customer shall notify KODI in writing and KODI shall correct the defect by, at its option, re-performing the defective Service, or issuing a credit against the next occurring invoice in an amount equal to the price Customer paid for the Services, provided that, a defect affecting five percent (5%) or fewer of the total Customer Product mailed in an applicable pool shall not trigger KODI’ obligation to provide a warranty remedy.

The preceding paragraphs of this Article 10 set forth the exclusive remedies for all claims based on failure of or defect in the Services or KODI’ performance under this Agreement, whether the failure or defect arises before or during the applicable warranty or guarantee period and whether a claim, however instituted, is based on contract, warranty, indemnity, tort/extra-contractual liability (including negligence), strict liability or otherwise. The foregoing warranties are exclusive and are in lieu of all other warranties, whether written, oral, implied or statutory. NO IMPLIED OR STATUTORY WARRANTY OR WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE SHALL APPLY.

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11. RISK OF LOSS. 

Risk of loss shall pass to Customer upon delivery of the Customer Product to the US Postal Service shipping point.

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12. CHANGES.

‍KODI’s performance of the Co-Mail Services is based on applicable laws, rules, regulations and operating programs of the US Postal Service in effect as of the Effective Date of the Agreement and each subsequent term, as applicable. In addition to 6(b) (Price Adjustments), in the event there are any changes, after the Effective Date, in any laws, rules, regulations, changes in US Postal Service operations, programs and/or requirements which affect the performance of the Services by KODI, including prices and schedule, KODI may, in its sole discretion, make such adjustments as may be necessary as a result of the same, including but not limited to, changes to the schedule, delivery and other KODI obligations, including termination of the Co-Mail Services program (the “Changes”). KODI shall provide Customer with at least thirty (30) days advance written notice of such Changes. In the event Customer objects in writing to a Change (other than a termination of the Co-Mail Services program), no later than 30 days after receipt of the Changes Notice (the “Changes Objection Notice”), KODI and Customer shall meet, within ten days of KODI’s receipt of the Changes Objection Notice (or such other time as the parties may mutually agree) to negotiate in good faith to reach agreement on the Changes. If the Parties cannot reach mutual agreement on the Changes within thirty days of KODI Changes Notice (or such other date as the parties may mutually agree), either Party may terminate this Agreement as provided in Section 5(b) (“Other Termination Rights”). In the event KODI terminates its Co-Mail Services Program in connection with a change in any laws, rules, regulations, changes in US Postal Service operations, programs and/or requirements, KODI shall not be required to meet with Customer and negotiate in good faith and KODI may terminate this Agreement in accordance with Section 5(b) (Other Termination Rights).

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13. FORCE MAJEURE.

Except for the obligation to make payments, neither party will be liable for any failure or delay in its performance or be considered to be in breach under this Agreement due to any cause beyond its reasonable control, acts of war (declared or undeclared), armed conflict, acts or threats of terrorism, civil unrest, acts of God, earthquakes, floods, severe weather conditions, fires, epidemics, pandemics, embargoes, riots, sabotage, labor shortages, disputes, disturbances or strikes, actions or (failure to act) of governmental authorities or third parties not engaged by the Party claiming Force Majeure, delays in transportation, failure of the Internet or the unavailability of materials, purchased services (including transportation), utilities or fuel, provided that the delayed party gives the other party prompt notice of such cause. If KODI is unable to perform as a result of any such cause, KODI will perform such parts of the work as it is capable of performing, and if Customer places any other part of the work elsewhere, KODI shall be entitled to resume the work as promptly as practicable. The occurrence of a Force Majeure does not excuse any delay or failure by Customer to make any payment due under the Agreement except to the extent the Force Majeure event directly delays or prevents the transmission of the payment itself. In the event of a Force Majeure continuing for one hundred eighty (180) days which impacts KODI’ ability to perform the Services, either party may terminate this Agreement as provided in Section 5(b) (Other Termination Rights)

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14. LIMITATION OF LIABILITY.

‍THE TOTAL LIABILITY OF KODI, ON ANY CLAIM OF ANY KIND ARISING OUT OF THE PERFORMANCE OR BREACH OF THIS AGREEMENT, SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER UNDER THE INVOICE FOR THE SERVICES GIVING RISE TO THE CLAIM, PROVIDED THAT, KODI’S TOTAL LIABILITY UNDER THE AGREEMENT, UNTIL THE TIME ALL SUCH LIABILITY SHALL END, SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO KODI UNDER THE AGREEMENT.

NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, ALL KODI LIABILITY SHALL END UPON EXPIRATION OF THE APPLICABLE WARRANTY PERIOD AND, IN NO EVENT, LATER THAN SIX MONTHS FOLLOWING THE TERMINATION OR EXPIRATION OF THIS AGREEMENT, WHICHEVER IS EARLIER.

IN NO EVENT SHALL KODI BE LIABLE FOR LOSS OF PROFIT, REVENUES OR SALES, LOSS OF USE OF CUSTOMER PRODUCT, COST OF CAPITAL, COST OF SUBSTITUTE SERVICES, DOWNTIME COSTS, CLAIMS OF THIRD PARTIES FOR SUCH DAMAGES, OR FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE OR EXEMPLARY DAMAGES.

THE LIMITATIONS AND EXCLUSIONS IN THIS ARTICLE SHALL APPLY REGARDLESS OF WHETHER A CLAIM IS BASED IN CONTRACT, WARRANTY, INDEMNITY, TORT/EXTRA-CONTRACTUAL LIABILITY (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE. THE PROVISIONS OF THIS ARTICLE 14 SHALL PREVAIL OVER ANY CONFLICTING OR INCONSISTENT PROVISION CONTAINED IN ANY OF THE DOCUMENTS COMPRISING THIS AGREEMENT, EXCEPT TO THE EXTENT SUCH PROVISIONS FURTHER RESTRICT KODI’S LIABILITY.

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15. ASSIGNMENT.  

Neither party may assign this Agreement without the other party’s prior written consent, such consent not to be unreasonably withheld, provided that, either party may, without the other party’s consent, transfer by way of assignment or novation all or any portion of its rights and obligations under this Agreement to (1) an Affiliate and/or (2) an entity acquiring all or a controlling interest in the assigning party or its parent company, provided that in both cases, (a) the assigning party provides the non-assigning party written notice of the proposed transfer, (b) the assignee has the legal and financial ability to perform the assigning party’s obligations under this Agreement, and (c) the assignee agrees to assume all of assigning party’s obligations under this Agreement. Any assignment or purported assignment in contravention of this Article 15 shall be null and void and shall be subject to Article 5 (Termination).

Nothing in this Article 15 shall restrict KODI from subcontracting portions of the Services, provided that KODI shall remain responsible to Customer for performance of the subcontracted scope.

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16. CONFIDENTIALITY, DATA OWNERSHIP & USAGE. 

The Parties hereby agree that the terms of this Agreement, including without limitation, the existence of this Agreement, and any written or oral information disclosed by any Party in connection with Agreement is considered the Parties’ joint confidential information and shall not be disclosed or otherwise revealed to any third party without the express written consent of the other Party, except to the extent required by law, or for the enforcement of this Agreement. Notwithstanding anything to the contrary herein and to the extent permitted by applicable law, Customer consents to KODI’s use of Customer-Supplied Data (i) to perform the Services and (ii) to create and use Aggregate Data, including information derived from and/or generated by the Services. Customer acknowledges that KODI will use the Aggregate Data by itself and combined with other sources and types of data, to modify, create, develop and improve the Services and other existing and new KODI products and services.

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17. OTHER PROVISIONS.  

Governing Law & Dispute Resolution. This Agreement shall be governed by the laws of the State of Delaware, without giving effect to any choice of law rules which would cause the application of laws of another jurisdiction. All disputes arising in connection with this Agreement shall be resolved in the state or federal courts located in the State of Delaware having jurisdiction over the subject matter and the Parties.

Entire Agreement. The provisions set forth in this Agreement represent the entire agreement between the Parties in relation to the matters contained herein. Any oral or written representation not contained or referenced in the Agreement shall not be binding on any Party. Each Party agrees that it has not relied on, or been induced by, any representations of any other Party not contained in this Agreement. No rights or obligations other than those expressly set forth herein are to be inferred from this Agreement, and the rights and remedies set forth in this Agreement are the exclusive rights and remedies of each party with respect to this Agreement, its performance or breach. , and the rights and remedies set forth in this Agreement are the exclusive rights and remedies of each party with respect to this Agreement, its performance or breach.

Severability. If any one or more of the provisions of this Agreement should be ruled illegal, wholly or partly invalid or unenforceable by a court or other government body of competent jurisdiction under present or future laws, then (i) the validity and enforceability of all provisions of this Agreement not ruled to be invalid or unenforceable shall be unaffected and remain in full force and effect and (ii) the effect of the ruling shall be limited to the jurisdiction of the court or other government body making the ruling, (iii) the provisions held illegal, wholly or partly invalid or unenforceable shall be deemed amended, and the court or other government body is authorized to reform the provision(s) to the minimum extent necessary to render them valid and enforceable in conformity with the Parties’ intent as manifested herein. Notwithstanding the foregoing, if KODI deems the unenforceable provision to be essential to this Agreement, KODI may terminate this Agreement, effective immediately upon notice to Customer.

[End of Document]

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TRANSPORTATION SERVICES TERMS & CONDITIONS

1. Definitions.
   1. “Freight Broker” means Kodi Holdings Inc. d/b/a Kodi.
   2. “Products” means the items and cargo tendered to Freight Broker for transport.
   3. “Transportation Services” means the procurement, management and administration of procurement of transportation services.
2. FREIGHT BROKER shall provide Customer Transportation Services in accordance with the following:
   1. FREIGHT BROKER shall select all carriers and make all arrangements therewith necessary or for the transportation of Products, utilizing FREIGHT BROKER’s network of qualified, authorized, and licensed motor carriers and rail carriers.
   2. Customer shall have reasonable access and utilization of FREIGHT BROKER’s client-facing technology systems, which shall include related shipment-specific information in electronic format as reasonably specified by Customer and agreed to by FREIGHT BROKER.
   3. For all shipments tendered by Customer to FREIGHT BROKER and accepted by Kodi, FREIGHT BROKER agrees to arrange for the pick-up, transport, and delivery of the shipments, as Customer may reasonably request, by motor carriers that hold the proper governmental authority to perform the requested services(s). Unless otherwise agreed, in arranging transportation services for Customer, FREIGHT BROKER shall not be responsible for packaging, handling, or loading of shipments, which shall instead be the responsibility of Customer or the underlying carrier selected by FREIGHT BROKER to transport the shipments. Every shipment handled by FREIGHT BROKER for or on behalf of Customer while this Agreement is in effect will be deemed tendered to FREIGHT BROKER under this Agreement. FREIGHT BROKER has the sole right to select the carriers used to perform transportation services, and FREIGHT BROKER is solely authorized to make the necessary transportation arrangements with regard to Customer’s property that has been tendered to FREIGHT BROKER. In performing brokerage or freight forwarder services for Customer, FREIGHT BROKER shall select carriers that meet the following criteria
      1. DOT Authority. Carriers selected by FREIGHT BROKER shall maintain proper authority from the DOT and any applicable state or Canadian provincial agency to perform transportation services intrastate, interstate and/or foreign commerce.
      2. Safety. FREIGHT BROKER will select carriers that maintain a safety rating from the U.S. Department of Transportation that is either “Satisfactory” or “Unrated” or “Conditional”, and that agree to perform transportation of Customer’s shipments in compliance with all applicable safety laws and requirements.
      3. Carriers’ Equipment. Carriers selected by FREIGHT BROKER shall be contractually required to provide equipment that is clean, safe, properly maintained, and hazard free, and that meets all applicable governmental regulatory requirements. Notwithstanding the above, the parties agree and understand that FREIGHT BROKER makes no express or implied warranties or guarantees concerning delivery time or the locating of a carrier to provide the Transportation Services, but shall make a reasonable effort to meet Customer’s transportation needs as set forth in Exhibit A.
      4. Carriers’ Drivers. Carriers selected by FREIGHT BROKER shall be contractually required to furnish drivers and other operating personnel, who are fully qualified, licensed, trained and experienced to properly and safely handle and transport Customer’s property.
   4. FREIGHT BROKER will arrange the dispatch and transport of all shipments tendered to it by Customer upon tender of same by Customer. FREIGHT BROKER will provide Customer with prompt notification by telephone or electronic communication when this obligation cannot be met for any reason. FREIGHT BROKER will communicate to each carrier that it engages to transport Customer’s shipments with any schedule for delivery provided by Customer for a particular shipment.
   5. FREIGHT BROKER represents and warrants that it is duly and legally qualified to operate as a property broker and/or freight forwarder and to provide the Transportation Services contemplated herein, FREIGHT BROKER agrees to comply with all federal, state and local laws regarding the provision of the Transportation Services provided hereunder. The parties understand and agree that FREIGHT BROKER functions as an independent entity, and not as a motor carrier, and that the actual transportation of shipments tendered to FREIGHT BROKER shall be performed by the underlying carriers selected by FREIGHT BROKER.
3. Shipping Documents. Unless otherwise agreed in writing, all shipments tendered shall be accepted on a bill of lading. In the event of a conflict between the bill of lading terms and this Agreement, the terms of this Agreement shall prevail. FREIGHT BROKER shall require all underlying carriers to obtain a delivery receipt from the consignee, showing the products delivered and the date and time of such delivery.
4. Customer represents and warrants that freight tendered to FREIGHT BROKER, and FREIGHT BROKER’s transportation of such goods, (a) does not violate federal, state or other applicable law, rule or regulation including, without limitation, those concerning improper labeling or packaging, improper distribution, and (b) will not cause any other form of personal or advertising injury. Customer shall indemnify and hold FREIGHT BROKER harmless for any and all claims, damages, losses, causes of action, demand, judgements and expenses arising out of or relating to a violation of (a) or (b).
5. Independent Contractor. FREIGHT BROKER’s relationship to Customer is that of an independent contractor, not an agent or employee, and nothing herein shall be construed as establishing an employment relationship, partnership or joint venture between the parties. FREIGHT BROKER shall make arrangements it deems appropriate for the transportation of shipments tendered by Customer under this Agreement. Customer is not and will not be responsible for any debts or obligations incurred by FREIGHT BROKER in the performance of its business. Neither party shall be liable for any obligations incurred by the other, except as is expressly provided in this Agreement.
6. Notification of Accidents or Delays. FREIGHT BROKER agrees to notify Customer of any accident or other event of which FREIGHT BROKER is made aware and which prevents the underlying carrier from making a timely or safe delivery.
7. Carriers’ Charges. FREIGHT BROKER shall be solely and exclusively liable and responsible for the payment of rates and charges to carriers engaged by FREIGHT BROKER that relate to the transportation of shipments tendered by Customer to FREIGHT BROKER pursuant to this Agreement.
8. Cargo Liability.
   1. Customer understands and agrees that FREIGHT BROKER shall not be liable as a carrier for cargo loss, damage or delay except as set forth herein, and that such liability lies with the arranged carrier. The arranged carrier’s liability for loss or damage will be in accordance with the Carmack Amendment as currently codified at 49 U.S.C. §§ 11706 and 14706, and exist only for loss or damage which occurred during the time of possession by, and occasioned by the fault or negligence of, the carrier and will cease at the time of delivery. Subject to the limitations set forth in Section (c), claims for loss or damage will be paid at Customer’s actual cost of replacing and reshipping the Products (i.e., direct costs associated with reprinting, remanufacturing, packaging, handling and shipping) (“Replacement Costs”). As a condition precedent to recovery, claims must be filed in writing within sixty (60) days after the scheduled delivery date of the shipment, and in advance of the reproduction or duplication of claimed items. All claims must be filed in writing, accompanied by signed bills of lading, paid invoices, itemization, description, dollar amount requested, and other relevant supporting documentation.
   2. FREIGHT BROKER shall act as a representative of Customer in the facilitation, administration and resolution of cargo claims with arranged carriers, but shall not be liable for any loss or damage to Customer’s Products while in the care, custody, control or possession of a carrier unless such loss or damage is attributable solely to the negligence or willful misconduct of FREIGHT BROKER. Customer agrees to cooperate fully with FREIGHT BROKER in the assertion and collection of any cargo claim, including but not limited to furnishing the documentation listed subsection (a) above and witnesses, when as necessary to successfully prosecute a claim. The failure of Customer to comply with this subsection shall be considered a material breach of the terms of this Agreement which shall require Customer to return to FREIGHT BROKER any sums that FREIGHT BROKER has paid to Customer on account of such claim. Customer will also be required to pay to FREIGHT BROKER all costs, expenses and attorneys’ fees expended by FREIGHT BROKER in the prosecution of such claims within fifteen (15) days of presentation by FREIGHT BROKER of an itemized statement of all such costs, expenses and attorneys’ fees.
   3. FREIGHT BROKER’s liability and that of any arranged carrier for loss or damage hereunder (including delays) shall be limited to the Replacement Costs for such impacted shipment, or portion thereof, provided that FREIGHT BROKER’s liability hereunder shall not exceed the lesser of $2.50/pound or $100,000 per impacted truckload. To the extent that multiple shipments are tendered by Customer at the same time and are transported at the same time in the same vehicle, this shall be considered a “single shipment” for the purposes of this Article. LTL shipments are further subject to the current governing publications, the NMF-100 at the time of shipment and/or to any rules or Tariffs that are applicable to the engaged motor carrier. Customer acknowledges and agrees that (1) rail carriers provide transportation services subject to provisions, restrictions and limitations in their Rail Circulars, and (2) the Rail Circulars address, among other matters, standards for loading, blocking and bracing, prohibitions and restrictions on certain types of commodities, limitations of liability, procedures and limitations on cargo limits and requirements for proper descriptions of commodities, (3) applicable provisions of a rail carriers Rails Circular in effect on the date of a shipment will apply, as between Customer, FREIGHT BROKER, the rail carrier and or any other third party , to any shipment transported by such rail carrier, (4) the Rail Circulars are generally available through the rail carrier’s website, and (5) persons and entities that use Intermodal transportation by the rail carriers should be familiar and comply with the provisions , restrictions and limitations of Rail Circulars.
   4. FREIGHT BROKER and arranged carriers shall not be liable for any loss or damage (including, but not limited to erasure) to any optical or magnetic tape, disk or similar item, which exceeds the value of the blank physical media itself. In any such event, FREIGHT BROKER’ liability for loss of or damage to optical or magnetic media shall be limited to a maximum of $100 per package, pallet, bag or container of items to be delivered or picked up from or for any one location or endpoint.
   5. FREIGHT BROKER and arranged carriers will not be liable for any failure to perform or for delay in performance of its obligations caused by the act, default or omission of the Customer or consignee.
   6. FREIGHT BROKER and arranged carriers shall not be liable in any case or under any circumstances for the face value of any lost or damaged cash or currency, coupons or cash equivalent items. In the event Customer includes cash or currency, or cash equivalent items with the shipment, either with or without the knowledge or consent of FREIGHT BROKER, it will be solely at the risk of Customer.
   7. In all instances, if a shipment is unable to deliver, whether by motor carrier, rail, air and/or ocean freight transport, due to an act or omission of Customer or any Consignee or if any motor carrier, rail, air and/or ocean freight shipment is refused for any reason by Customer or a consignee, FREIGHT BROKER’s liability for any claims for loss, or delay, shall cease to be that of a common carrier, airfreight or ocean carrier , and FREIGHT BROKER’s and/or the arranged carrier’s liability shall be that of a warehouseman.
   8. Unless a specified delivery date and/or time for delivery is provided to FREIGHT BROKER in writing prior to the tender by Customer of any individual shipment, FREIGHT BROKER shall only be bound to arrange, and the arranged carrier shall only be bound to transport, a shipment tendered hereunder, with reasonable dispatch. “Reasonable Dispatch” is the length of time that it would customarily and ordinarily take to transport a like shipment.
   9. All of the liability limitations contained in this Agreement shall survive the termination of this Agreement.
      
      For purposes of the foregoing Sections (a) – (j), the term “FREIGHT BROKER” shall mean FREIGHT BROKER, its affiliates, arranged carriers, subcontractors, suppliers, and each of their respective agents and employees, whether individually or collectively.
9. Insurance. FREIGHT BROKER shall comply with all insurance and bonding requirements imposed upon it by the DOT and applicable law, including its obligation to maintain a $75,000 surety bond for the benefit of Customer. FREIGHT BROKER shall further require arranged carriers to carry the following types and amounts of insurance:
   1. Workers Compensation as required by law;
   2. Employer’s Liability insurance in the amount of Five Hundred Thousand Dollars ($500,000);
   3. Automobile Liability in the amount of One Million Dollars ($1,000,000) for each occurrence; and
   4. Motor Truck Cargo Liability insurance in the amount of One Hundred Thousand Dollars ($100,000) per shipment.