Department of Defense STOS

April 6, 2010
All freight tendered on behalf of the U.S. Department of Defense (“DOD”) is subject to the following Standard Terms of Service (“STOS”), which are incorporated by reference into the Tucker Company Worldwide Broker-Motor Carrier Agreement at Paragraph D (12). These STOS are subject to change at the sole discretion of Tucker Company Worldwide (“TCW”) with or without notice.

Type of Shipments
This Agreement shall apply to both less-than-truckload (“LTL”) and truckload (“TL”) shipments pursuant to the terms in the Schedule of Government Services and Exhibits or any Addenda relative to the specific requirements relating to each such shipment.
Freight Documentation
The terms of this Agreement, including the Schedule of Government Services, Exhibits and Addenda, shall apply to all shipments awarded to Carrier within the scope of this Agreement and, except with respect to a government bill of lading, shall take precedence over any conflicting terms contained in any bill of lading, receipt or other transportation document (Shipment Document) issued for any shipment awarded by Menlo within the scope of this agreement. Except as otherwise permitted by the Unique Requirements, Schedule of Government Services, the Shipment Documents shall show Menlo as the bill-to Party for freight charges, shall not show Menlo as the shipper, consignee or motor carrier, and shall not show any entity other than Carrier as the carrier.
Carrier’s Transportation Obligations
1. Provide the transportation services described herein promptly, efficiently, and safely with reasonable dispatch so as to meet delivery schedules, including those shipments designated as “hot” or “expedited” whereby Carrier has timely notice the need for expedited delivery and, after such notice, Carrier elects to transport such shipment for delivery as requested.
2. Provide duly and lawfully qualified personnel to operate the vehicles and perform the transportation services as required.
3. Ensure that all motor vehicles, including trailers, used to transport product hereunder are in good and suitable operating condition so as to avoid any loss of or damage to product in loading and unloading or while in transit. Carrier agrees that all trailer equipment shall be clean and not contaminated and will not have been used previously to transport garbage, trash, or solid or liquid waste or any other articles, whether hazardous or non-hazardous, which might taint or otherwise contaminate Government goods.
4. Without the prior written consent, Carrier will not use the name of Menlo and/or any Customer of Menlo or the Government in any advertising or publicity releases relative to services provided hereunder.
5. Carrier will take all necessary and proper precautions and actions to protect each shipment, and the products included therein, from theft, vandalism or other criminal activity.
6. Comply at all times with the Government Unique Requirements (Paragraph 8, below).
Carrier’s Liability for Cargo Loss and Damage
Carrier shall be liable for loss of or damage to any product shipped hereunder (“Freight Claim”) for not less than the actual loss or injury to the property transported under a government bill of lading pursuant to the Prime Contract while the property is in the possession of Carrier. Carrier shall not be liable to the extent such loss or damage is caused by an act of God, of a public enemy, of a public authority, of the shipper, or due to the inherent vice or nature of the goods. For purposes of liability only, freight that is consolidated onto a single conveyance will be considered a shipment.

Cargo liability of Carrier is limited as follows:
For shipments weighing less than 15,000 lbs, the Subcontractor is liable to the Government for the lower dollar amount of $50,000 or the actual amount of the loss and/or damage to the property.
For shipments weighing 15,000 lbs or more, the Subcontractor is liable to the Government for the lower dollar amount of $150,000 or the actual amount of the loss and/or damage to the property.
For shipments that are transported via multiple conveyances, such as multiple rail cars, Carrier is liable per conveyance. Authorized shipper personnel may elect to declare and establish cargo liability in amounts higher than stated above through the provisions of Cargo Liability of Carrier (“LIE”) in Appendix B – Accessorial Codes – of the Prime Contract, which shall be applicable to Carrier. In such instances when authorized shipper personnel request LIE, the Carrier shall be liable for the increased declared value. When Menlo is permitted and able to obtain in the normal course of business from a transportation provider liability terms more favorable to the Government (as the shipper) than those noted above, those more favorable terms govern the liability of Carrier to the Government. The term “full value” shall mean and be calculated on the basis of the retail price of product at the time of shipment, (without limitation of any kind or nature), together with transportation charges applicable to the kind and quantity of product so lost or damaged. Carrier agrees and acknowledges that no shipment hereunder is or shall be subject to any limit on the amount of Carrier's liability for any freight claim hereunder, except as provided herein. To the extent that Carrier, or anyone acting on behalf of Carrier, asserts any such limitation, Carrier waives and shall be estopped from asserting any such limitation contrary to the terms of this provision.

Cargo Claims Process:
The Government is a third party beneficiary of this Agreement, which authorizes the Government to enforce the cargo liability terms of this contract. Subcontractor acknowledges that positive and negative incentives impacting Menlo under Menlo’s Prime Contract with the Government depend on the ability of Menlo to facilitate the resolution of Government claims for loss or damage to property in a timely and satisfactory manner. Carrier acknowledges that Menlo will seek to resolve Government claims as an independent contractor, not as an agent of the Government. Carrier agrees that it will not assert any type of lien on any property shipped under this contract. Additionally, the Government (or designated agents) reserves the right to retrieve/seize DoD freight from Menlo and its facilities and its subcontractor’s facilities and conveyances when such freight has been frustrated, or otherwise delayed due to labor unrest, work stoppages, bankruptcy, disasters, and other abnormal events beyond Menlo’s operational control. Carrier shall provide notice to authorized Government personnel and to Menlo within five (5) days of initial identification of loss or damage. When a shipment cannot be delivered due to damage, loss or refusal at destination, Carrier shall contact Menlo. Menlo will work with authorized Government personnel for disposition instructions. If the loss or damage is attributable to Carrier under the standard of liability herein, the cost of additional transportation, storage, and/or redelivery shall be treated as a Government claim against the Carrier. Unless the Government claim has been paid, Carrier shall provide notice to authorized Government personnel and to Menlo within thirty (30) days of the receipt of a Government claim, acknowledging receipt and identifying any documentation or other information about the claim that is required for resolution. Within 120 days of receipt of a Government claim, Carrier shall pay the claim in full to authorized Government personnel or provide notice to authorized Government personnel and to Menlo either that it declines the claim in full or that it offers a partial payment as a firm compromise settlement of the claim. Carrier shall have no rights to salvage. Carrier acknowledges that the Government may respond to unresolved claims through litigation, through set off on some future contract between the Government and Carrier, or through other means. The Government may proceed under the government bill of lading or as a third party beneficiary of Carrier’s contract with Menlo or through other means, as permitted by law.
Customs and Security
Carrier shall be responsible for ensuring compliance with all customs and security laws that are applicable to the Transportation Services either domestically in the United States or for import or export to or from the United States.
Indemnity
Except as otherwise provided below, Carrier shall protect, defend, hold harmless and indemnify Menlo and/or the Government and their respective directors, officers, employees, and agents (hereinafter collectively referred to as “Indemnitee”) from and against:
1. Any and all claims made against any Indemnitee by or on behalf of Carrier’s employees, agents or subcontractors for wages or salary, as well as any other compensation or payments, including overtime resulting or claimed to have resulted, in whole or in part, from services provided to Menlo by Carrier, or its respective agents or contractors hereunder; and/or,
2. Any and all penalties for fines of any nature and character (except those penalties or fines which are caused solely by the Government) which may be sought to be enforced against an Indemnitee by reason of an alleged violation by Carrier and its respective agents or contractor, of any federal, state, or municipal law, rule or regulation related to Carrier’s transportation services; and/or,
3. All claims, demands, actions or causes of action, which may at any time be brought against any Indemnitee because of death or injury to persons, including Carrier and its respective employees, agents or contractors, or damage to property (except with respect to cargo loss or damage under Section 9 hereof) which may arise from or in connection with: (1) the maintenance, use or operation (including loading and unloading by Carrier or its respective agents or contractors or any motor vehicle or allied equipment in performance of services under this Agreement; and/or, (2) any and all acts or omissions of Carrier, and its respective agents, employees or contractors in providing the transportation services to be provided under this Agreement; and/or,
4. Any and all other claims made by or on behalf of the Government or a Menlo Customer against any other Indemnitee, if such claim arises from the transportation services provided by Carrier, or its respective agents or contractors under this Agreement.
5. Any obligation to indemnity hereunder shall include any and all costs, expenses and reasonable attorneys’ fees incurred or payable by any Indemnitee in settling such claims or penalties or fines or in investigating or defending against same.
6. Notwithstanding any provision in this Agreement stating or implying to the contrary, Carrier shall not be obligated to indemnify or hold harmless any Indemnitee hereunder to the extent that any such penalty, fine, claim, action, and/or cause of action contemplated by this Section is caused by the negligence of such Indemnitee.
7. Except as otherwise specifically provided in this Agreement and Schedules, Exhibits or Addenda hereto, neither Party shall be liable to the other for any indirect, consequential, special and/or punitive damages (such as, but not limited to, loss of profits, loss of market, loss of customer goodwill, assembly line shutdowns, or punitive or exemplary damages), regardless of whether the claim for such damages sounds in contract, tort, breach of warranty, consumer fraud, or otherwise.
Force Majeure
If a party is prevented from or delayed in performing any of its obligations under this Agreement by reason of statutes, regulations or orders of a governmental entity (including actions taken by a court or by law enforcement officials), or because of war, terrorism, acts of God, labor disturbances, civil unrest, or any cause beyond the reasonable control of such party, such party shall not be liable to the other for damages by reason of any delay or suspension of performance resulting from such legal restraints or force majeure.
Government Unique Requirements
1. Carrier shall furnish to Menlo, upon request, any certificate required to be furnished by any provision of this Agreement, including any clauses incorporated by reference herein, and any certificate required by any future law, ordinance, or regulation with respect to the Carrier’s compliance with the terms and provisions of such law, ordinance, or regulation.
2. Carrier warrants that no part of the total amount paid to the Carrier hereunder shall be paid directly or indirectly to any officer or employee of the United States Government as wages, compensation, or gifts.
3. Carrier warrants that no part of the total amount paid to the Carrier hereunder shall be paid directly or indirectly to any officer or employee of the United States Government as wages, compensation, or gifts.
4. Carrier warrants that Carrier is not currently debarred, suspended, or proposed for debarment by any federal or state agency, and that it shall promptly disclose to Menlo, in writing, should Carrier be suspended, debarred, proposed for debarment, or otherwise be declared ineligible for participation in federal or state procurement or nonprocurement programs.
5. Equal Opportunity. During the performance of this Agreement, Carrier agrees to comply with the Equal Opportunity provisions of the Prime Contract in accordance with FAR 52.222-26.
6. The Prime Contract and this Agreement are subject to FAR 52.222-41, Service Contract Act (SCA) of 1965, as amended. Contractors shall obtain and download the applicable wage determinations for all areas of performance on-line at the following Department of Labor (DOL) website: www.wdol.gov. The DOL wage determination at point of origin of a trip to transport DTCI freight (head-out point) will apply during the entire trip, regardless of how many cross-docking stops, or other stops are made during the trip, so long as the transportation provider continues to transport DTCI freight. Once the last piece of DTCI freight is off-loaded and the transportation provider is no longer performing DTCI services, the trip ends for purposes of application of the SCA wage determination under the DTCI contract. Defense Priority. The Prime Contract is subject to FAR 52.211-14, Notice of Priority Rating for National Defense Use, thereby this Agreement and any Work allocated to the Carrier under this Agreement will be DO rated order certified for national defense use under the Defense Priorities and Allocations System (DPAS) (15 C.F.R. 700), and the Carrier will be required to follow all of the requirements of such regulation.
7. Federal Government Flowdown Clauses. Carrier shall be subject to and bound by those FAR, FAR Supplement, or Agency Acquisition Regulations and the Procurement Integrity Act clauses and provisions which are binding by law upon all federal Contractors and their Subcontractors, including but not limited to all mandatory flowdown clauses. Such clauses and provisions are made a part of this Agreement and the Carrier agrees to notify Menlo in writing of any known, potential, or actual conflicts of interest or violations of law or regulations, which may arise hereunder. For the convenience of the Carrier, the applicable federal government flowdown clauses are identified as Exhibit A to the Schedule of Government Services, and are incorporated by reference, with the same force and effect as if they were given in full text.
8. Government Certification and Representations. Carrier shall be subject to and bound by the Representations and Certifications and must execute Representations and Certifications that reflect adherence to government procurement ethical and socio-economic rules. These rules are grounded in statutes and government policies and prescribe conduct for both Menlo and Carrier and Carrier’s employees. The Representations and Certifications are included as Exhibit B to the Schedule of Government Services and are hereby incorporated by reference.
9. Federal Government Flowdown Clauses. Carrier shall be subject to and bound by those FAR, FAR Supplement, or Agency Acquisition Regulations and the Procurement Integrity Act clauses and provisions which are binding by law upon all federal Contractors and their Subcontractors, including but not limited to all mandatory flowdown clauses. Such clauses and provisions are made a part of this Agreement and the Carrier agrees to notify Menlo in writing of any known, potential, or actual conflicts of interest or violations of law or regulations, which may arise hereunder. For the convenience of the Carrier, the applicable federal government flowdown clauses are identified as Exhibit A to the Schedule of Government Services, and are incorporated by reference, with the same force and effect as if they were given in full text.
10. Government Certification and Representations. Carrier shall be subject to and bound by the Representations and Certifications and must execute Representations and Certifications that reflect adherence to government procurement ethical and socio-economic rules. These rules are grounded in statutes and government policies and prescribe conduct for both Menlo and Carrier and Carrier’s employees. The Representations and Certifications are included as Exhibit B to the Schedule of Government Services and are hereby incorporated by reference.

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