Terms and Conditions of Flexport Canada Logistics ULC (“the Company”)
These terms and conditions of service (these “Conditions”) are incorporated by reference into every written or oral agreement entered into by the Company and the Customer (as defined below) for the provision of freight forwarding services as described herein. Collectively with any such agreement, these Conditions constitute a legally binding contract between the Company and the Customer.
1.Role of Forwarder (the “Company”).
The Company offers its services on the basis of these Conditions that apply to all activities of the Company in arranging transportation or providing related services, such as, but not limited to, warehousing and any other kind of logistics services. The Company may provide its services as either principal or agent. The Company acts as agent of the Customer, except:
a) where it issues a transport document or electronic record evidencing its obligation for the delivery of goods, or b) to the extent it physically handles goods by its own employees and equipment in the course of performing any service,
in which cases it acts as principal, but whether acting as principal or as agent these Conditions govern the rights and liabilities of the Customer and the Company. When determining any rights or liabilities of the Company under these conditions, the word “Customer” shall include the person to whom the Company is rendering service and any other person giving instructions to the Company, the shipper, the consignee, and the owner of the goods. Notwithstanding the foregoing, advice given by the Company is for the sole benefit of the person to whom the Company is rendering service, and is not to be furnished to any other person without the Company’s prior written consent. Gratuitous advice and information that is not related to instructions accepted by the Company is provided without liability of any kind, including for negligence.
2.Claims Against Others.
These Conditions also apply whenever any claim is made against any employee, agent or independent contractor engaged by the Company to perform any transport or related service for the Customer’s goods, whether such claims are founded in contract or in tort, and the aggregate liability of the Company and all such persons shall not exceed the limitations of liability in these Conditions. For purposes of this clause the Company acts as agent for all such persons who may ratify such agency at any subsequent time.
3.Role as Agent.
When acting as an agent, the Company acts solely on behalf of the Customer in engaging the services of third parties on the usual terms and conditions on which the third parties offer such services for the carriage, storage, packing or handling of any goods, or for any other service in relation to them, thereby establishing a direct contract between the Customer and the provider of such services capable of being enforced by the Customer as principal, whether or not the Customer is identified in the contract. The Company shall on demand by the Customer provide evidence of any contracts made on its behalf.
4.Role as Principal.
When requested by the Customer, the Company may issue a transport document or electronic record (each, a “Contract of Carriage”) by which it, as principal, undertakes carriage of particular goods. Where it issues a Contract of Carriage, the rights and obligations of the Company will be governed by that Contract of Carriage in addition to these Conditions. In the event of any inconsistency between these Conditions and the applicable Contract of Carriage, the latter shall prevail but only in respect of the services contemplated in that Contract of Carriage.
5.Services Requiring Special Arrangements.
Customs Brokerage Services – The Customer acknowledges that the Company is not a licensed customs broker, and that all customs brokerage, classification, valuation, accounting for imports and other customs-related services (collectively, “Customs Brokerage Services”) that the Customer may require shall be performed by third parties pursuant separate contracts between the Customer and such third parties. If the Customer has a pre-existing relationship with a customs broker, it may designate that customs broker as the Customer’s preferred customs broker by written notice to the Company, and the Company shall use such customs broker to provide Customs Brokerage Services as required in connection with the services rendered to the Customer. Where no customs broker designation has been made by the Customer:
a) the Company may act as the Customer’s forwarding agent for the purpose of designating a customs broker to perform Customs Brokerage Services on behalf of the Customer; b) the Customer acknowledges that the Company may designate, in its sole discretion, any customs broker to provide Customs Brokerage Services, whether or not such customs broker is related to or affiliated with the Company; and c) the Customer acknowledges and agrees that, by tendering an import or export shipment to the Company, the Customer irrevocably appoints the Company’s designated customs broker to provide Customs Brokerage Services, if any, to the extent allowed by law.
Any and all and Customs Brokerage Services rendered by, through or with the assistance of the Company is as an accommodation to the Customer. The Company shall have no equitable obligation or other liability, whether for breach of contract, negligence or any other tort, for any error or omission in the performance of said services or any failure to perform said services. The Company’s fees and charges do not include any applicable customs brokerage fees, import duties, countervailing or anti-dumping duties, taxes, surtaxes and related filing fees, penalties and interest (collectively, “Customs Clearance Charges”) related to any shipments tendered by the Customer. The Customer shall pay all Customs Clearance Charges to or as directed by its own customs broker or the Company’s designated customs broker, as the case may be.
Other Services – The Customer must give instructions in writing to the Company a reasonable time before the tender of goods for storage or transport where it requests the Company to:
a) arrange for the departure or arrival of goods before specific dates;
b) arrange for goods to be carried, stored or handled separately from other goods; c) arrange for the transport of goods that may taint or affect other goods, or may harbor or encourage vermin or pests; d) make a declaration of value or special interest in delivery to any carrier or terminal; e) direct carriers or delivery agents to hold goods until payment of any amount or until surrender of a document; or f) arrange for the transport of goods of unusual high value, luxury goods, currency, negotiable Instruments or securities of any kind, precious metals or stones; antiques or art; human remains, livestock or plants, or any other comparable cargos.
Where for any reason it does not accept such instructions, the Company must promptly so advise the Customer by any means of communication used in the ordinary course of business. If it continues to use the Company’s services for the contemplated transport after receiving such advice, the Customer assumes all risks connected with the non-performance of such instructions, whether caused or contributed to by the Company’s negligence or not.
6.The Company's General Responsibilities.
a) The Company shall exercise reasonable care in the discharge of its obligations including the selection and instruction of third parties that provide any services engaged on behalf of the Customer.
b) The Company shall take reasonable steps to provide services in accordance with the instructions from the Customer.
c) If it has reasonable grounds for departing from any of the Customer’s instructions, the Company can do so without prior authorization from the Customer, but must act with due regard to the interests of the Customer, and, as soon as possible, inform the Customer of its actions and any additional charges resulting therefrom.
7.Customer's General Responsibilities.
a) The Customer shall be deemed to be competent and to have reasonable knowledge of matters affecting the conduct of its business, including terms of purchase and sale, the need for insurance and the extent of coverage available for the type of goods being tendered for shipment, the need to preserve and retain documentation, the need for care to avoid transmitting viruses by electronic communications, the need for confidential handling of information relating to high value goods, and all other matters relating thereto.
b) The Customer warrants that all information in whatever form relating to the general and dangerous character of the goods, their description, bar-coding, marks, number, weight, volume and quantity of the goods, as furnished by the Customer or on its behalf, was accurate and complete at the time the goods were taken in charge by the Company or any third party whose services it has engaged. The Customer further undertakes to provide independent confirmation of such particulars on the request of the Company and shall indemnify and hold the Company harmless from any and all claims asserted and/or liability or losses suffered by reason of the Customer’s failure to disclose information or any incorrect or false statement by the Customer upon which the Company reasonably relied.
c) The Customer has an affirmative non-delegable duty to disclose to its own customs broker or the Company’s designated customs broker, as the case may be, any and all information required in connection with Customs Brokerage Services including but not limited to all information required to import, export, or account for the import or export of, the goods.
8.Customer's Responsibility for Packaged and Containerized Goods.
a) The Company accepts no responsibility for the preparation, packing, stowage, labeling or marking of the Customer’s goods. The Customer warrants that all goods have been properly and sufficiently prepared, packed, stowed, labeled and/or marked, and that the preparation, packing, stowage, labeling and marking are appropriate to any operations or transactions affecting the goods and the characteristics of the goods. Without limiting the foregoing, the Customer is responsible for timely communication of and warrants the accuracy of the verified gross mass (VGM) of the package(s) and or the transport unit and the identity of the duly authorized person so verifying. The Customer shall maintain documentation evidencing measurement of VGM as required by law.
b) The Company accepts no responsibility for the loading of any transport units. The Customer warrants that (i) each transport unit has been properly, completely, and competently loaded; (ii) the goods are suitable for carriage in or on the transport unit; and (iii) the transport unit is in a suitable condition to carry the goods loaded therein.
9.Quotations and Invoicing.
a) The compensation of the Company for its services shall be included with and is in addition to the rates and charges of all carriers and other agencies selected by the Company to transport and deal with the goods and such compensation shall be exclusive of any brokerage, commissions, dividends or other revenue received by the Company from carriers, insurers and others in connection with the shipment.
b) Unless the Company has agreed to act as principal by issuing a Contract of Carriage as contemplated in Section 4, above, it does not assume, nor shall it be deemed to assume, a role as principal solely by providing the Customer with a fixed price quotation, or rendering an invoice where the difference between the amounts payable to carriers or other third parties retained to carry out the Customer's instructions and the fixed price represents the Company's gross profit for its services. The Customer agrees that the Company is an agent as provided in Section 1 where the Customer: (i) accepts a fixed price quotation, or (ii) does not within thirty days after receipt of the invoice object to the Company charging a fixed price for its services.
c) Quotations are given on the basis of immediate acceptance and are subject to withdrawal or revision. Unless otherwise provided in the quotation, the Company may, after acceptance, revise quotations or charges upon notice in the event of changes beyond the Company's control, including changes in exchange rates, rates of freight, carrier surcharges, or any charges applicable to the goods.
10.Charges Collect Shipments.
When goods are accepted or dealt with upon instructions to collect freight, duties, charges or other expenses from the consignee or any other person, the Customer shall remain responsible for the same if they are not paid by such consignee or other person immediately when due.
11.Changed Circumstances / Failure to Take Delivery.
If events or circumstances, including a Customer’s failure to take delivery, occur that affect performance of the Customer’s mandate, the Company shall take reasonable steps to obtain the Customer’s further instructions. If for whatever reason it does not receive timely instructions, the Company may:
a) store the goods at the sole risk and expense of the Customer, or b) sell the goods immediately and without further notice, and hold any net proceeds for the account of the Customer, or c) authorize any third party to abandon carriage and make the goods or any part of them available to the Customer at a place that is reasonable in the circumstances, or d) destroy the goods in its sole discretion at the sole expense of the Customer upon written notice to the Customer.
a) It is the Customer’s responsibility to identify and properly tender any shipment containing “dangerous goods” as defined for purposes of the Transportation of Dangerous Goods Act, 1992 (Canada). The Customer cannot delegate this responsibility to the Company in any circumstance whatsoever, including the obligation to strictly comply with all applicable laws.
b) Any dangerous goods shipments must be approved by an authorized representative of the Company and all such shipments will be assessed a special rate for the applicable dangerous goods shipments. Regardless of the following guidelines, the Company reserves the right to decline any shipment of dangerous goods.
c) The Customer undertakes not to tender for transportation any goods that are of a dangerous, inflammable, radioactive, hazardous or damaging nature without giving full particulars of the goods to the Company. The Customer undertakes to mark the goods and the outside of any packages or container in which they may be placed to comply with any laws or regulations that may be applicable during the carriage. In the case of goods where the place of receipt is a point within Canada, the Customer further warrants that the goods, the packaging and marking thereof comply in all respects with the provisions of any legislation or regulations governing the transportation of dangerous goods.
d) If the Customer fails to comply with the requirements of this Section 12, the Customer shall indemnify the Company against all loss, damage or expense arising out of the goods being tendered for transportation or handled or carried by or on behalf of third parties retained by the Company.
e) Goods which in the opinion of the Company or the person who has custody or possession thereof are or may become dangerous and present a hazard may at any time or place be unloaded, destroyed or rendered harmless without liability on the part of the Company.
a) Unless requested to do so in writing and confirmed to the Customer in writing, the Company is under no obligation to procure insurance on the Customer's behalf; in all cases, the Customer shall pay all premiums and costs in connection with procuring requested insurance.
b) The Customer must give the Company instructions in writing to arrange insurance on its goods a reasonable time before the tender of goods for storage or transport. The Company may carry out these instructions by declaring the value of the goods under an open marine cargo policy taken out by the Company, and, upon request, provide a certificate or declaration of insurance, or other evidence of insurance. The coverage on goods so declared is subject to the terms and conditions of the policy. The Company is not liable if the Customer for any reason whatsoever fails to recover a loss in whole or in part from the insurer under the policy, even though the premium charged by the insurer is different from the Company's charges to the Customer.
c) If coverage under its open marine cargo policy is not satisfactory, the Company will recommend an insurance broker to arrange insurance appropriate to the Customer's needs. After making this recommendation, the Company has no further duty regarding insurance, and no liability for loss of or damage to the goods during transport or storage that could have been covered by insurance on the goods, whether such loss or damage has been caused or contributed to by its negligence or breach of these conditions, or otherwise.
14.Notification of Claims.
The Customer on its own behalf and on behalf of the owner of the goods shall notify the Company in writing of any claim:
a) in case of loss and/or damage to goods within seven days of the completion of transit, b) in case of delay in delivery or non-delivery within 45 days of the date when the goods should have been delivered, and
c) in any other case within 45 days of the event giving rise to the claim.
If a claim was not discoverable by the exercise of reasonable care within the applicable time period, the Customer must give notice forthwith after receiving information as to events that may give rise to a claim (and in no event shall such notice be after a 60-day period following such event); such notice shall include the reason for which notice within the applicable time period was not possible. Failing notice as required by this clause, the claim is barred and no action can be brought against the Company to enforce the claim.
15.Limitation of Liability.
Compensation for any claim for which the Company is liable, whether such liability arises out of breach of contract, fundamental breach, tort (including negligence), breach of the common law duty of good faith, or any other theory of liability, shall not in any event exceed:
a) in the case of loss of or damage to goods while in the care, custody and control of a highway, railway, ocean or air carrier, the maximum liability of the carrier pursuant to such carrier’s tariff or the applicable contract of carriage; or b) 2 SDR (SDR = IMF Special Drawing Right) per kilo of the gross weight of the goods that are the subject of the claim; or c) 666.67 SDR per enumerated package of goods that are the subject of the claim; or d) 75,000 SDR per transaction,
whichever is less, provided however that where a higher limitation of liability is mandatorily applicable by law then that higher limitation of liability shall apply.
Without prejudice to any other conditions herein or other defences available to the Company, in no circumstances whatsoever shall the Company be liable to the Customer or owner for consequential or indirect loss, including losses arising from delay or loss of market, indirect, incidental, exemplary, special or punitive damages, including any damages for business interruption, loss of use, revenue or profit, cost of capital, loss of business opportunity, loss of goodwill, whether arising out of breach of contract, fundamental breach, tort (including negligence), breach of the common law duty of good faith, or any other theory of liability, regardless of whether such damages were foreseeable and whether or not the Company was advised of the possibility of such damages.
Upon the Customer’s written request, the Company may accept liability in excess of these limits in writing, provided the Customer pays the Company’s additional charges for such increased liability. The Customer can obtain details of these charges from the Company.
The Customer shall indemnify, save, defend and hold harmless the Company from and against all Customs Clearance Charges, other taxes, payments, fines, expenses, damages, losses, claims and liabilities, and fees payable to third parties including without limitation any freight charges; storage, demurrage, port, or terminal charges; fuel, security or regulatory surcharges; and any liability to indemnify any other person against claims made against such other person by the Customer or by the owner:
a) for which the Company may be held responsible unless caused or contributed to by any negligence or breach of duty of the Company, or
b) which exceeds the Company’s maximum liability as set forth in Section 15, above,resulting from or connected with the actions of the Company related to any service to which these Conditions apply.
The Customer shall further indemnify, save, defend and hold harmless the Company from and against all penalties, fines, expenses, damages, losses, claims and liabilities whatsoever arising from the negligent act or omission of the Customer, or any breach of an applicable law by the Customer.
17.Set Off and Counterclaim.
The Customer shall pay to the Company in cash, or as otherwise agreed, all sums immediately when due without reduction or deferment on account of any claim, counterclaim or set off.
18.Right of Detention and Lien.
All goods (and documents relating to goods) shall be subject to a particular and general lien and right of detention for monies owing either in respect of such goods, or for any particular or general balance or other monies owed, whether then due or not, by the Customer, sender, consignee or owner of the goods to the Company. If these monies remain unpaid for 10 days after the Company sends notice of the exercise of its rights to these persons by any means of communication reasonable in the circumstances, the goods may be sold by private contract or otherwise at the sole discretion of the Company, and the net proceeds applied on account of the monies owing. The Company will not be liable for any deficiencies or reduction in value received on the sale of the goods nor, will the Customer be relieved from the liability merely because the goods have been sold.
a) Where the Company is hindered in its ability to perform one or more of its contractual duties, or where the continued performance of one or more contractual duties has become excessively onerous, the consequences set out in paragraphs 19.d through 19.g, below, will follow if and to the extent that the Company can demonstrate that: (i) the Company’s failure to perform was caused by an impediment beyondits reasonable control; and (ii)
the Company could not reasonably have avoided or overcome the effects of the impediment.
b) Where the Company is hindered in its ability to perform one or more of its contractual duties, or where the continued performance of one or more contractual duties has become excessively onerous, because of default by a third party whom it has engaged to perform the whole or part of the contract, the consequences set out in paragraphs 19.d through 19.g, below, will only apply to the Company: (i) if and to the extent that the Company establishes the requirements set out in paragraph 19.a, above; and (ii) if and to the extent that the Company can demonstrate that the same requirements apply to the third party.
c) In the absence of proof to the contrary, the Company shall be presumed to have established the conditions described in paragraph 19.a, above, in case of the occurrence of one or more of the following impediments: (i) war (whether declared or not), armed conflict or the serious threat of same (including but not limited to hostile attack, blockade, military embargo), hostilities, invasion, act of a foreign enemy, extensive military mobilization; (ii) civil war, riot rebellion and revolution, military or usurped power, insurrection, civil commotion or disorder, mob violence, act of civil disobedience; (iii) act of terrorism, sabotage or piracy; (iv) act of authority whether lawful or unlawful, compliance with any law or governmental order, rule, regulation or direction, curfew restriction, expropriation, compulsory acquisition, seizure of works, requisition, or nationalization; (v) act of God, natural disaster such as but not limited to violent storm, cyclone, typhoon, hurricane, tornado, blizzard, earthquake, volcanic activity, landslide, tidal wave, tsunami, flood, damage or destruction by lightning, drought; (vi) outbreak of disease, plague, epidemic or pandemic, or the imposition of quarantine, curfew, mobility restrictions, or other measures in response to such outbreak; (vii) explosion, fire, destruction of machines, equipment, factories and of any kind of installation, prolonged break-down of transport, telecommunication or electric current; (viii) general labour disturbance such as but not limited to boycott, strike and lock-out, go-slow, occupation of factories and premises.
d) Upon invoking this Section 19: (i) where, in the Company’s opinion, a modified performance of the affected contractual duties is possible, the Company is entitled to modify its services, procedures, rates, prices, and surcharges as in the Company’s reasonable discretion is considered necessary in which case the Company is entitled to full remuneration and indemnity for any additional charges so incurred or applied; or (ii) where, in the Company’s opinion, no performance of the affected contractual duties is possible, then subject to paragraph 19.f, below, the Company is relieved from its duty to perform the affected contractual duties from the time at which the impediment causes the failure to perform if notice thereof is given without delay or, if notice thereof is not given without delay, from the time at which notice thereof reaches the Customer.
e) Upon invoking this Section 19, the Company is, subject to paragraph 19.f, below, relieved from any liability in damages or any other contractual remedy for breach of contract from the time indicated in paragraph 19.d, above.
f) Where the effect of the impediment or event invoked is temporary, the consequences set out under paragraphs 19.d and 19.e, above, shall apply only insofar, to the extent that and as long as the impediment or the listed event invoked impedes performance by the Company of its contractual duties. Where this paragraph applies, the Company is under an obligation to notify the Customer as soon as the impediment or listed event ceases to impede performance of its contractual duties.
g) Upon invoking this Section 19, the Company is under an obligation to take all reasonable means to limit the effect of the impediment or event invoked upon performance of its contractual duties.
The Company shall, unless otherwise expressly agreed, be discharged of all liability under these conditions unless suit is brought within nine months from:
a) the date of delivery of the goods for claims to damage to goods, or b) the date when the goods should have been delivered for claims for delay in delivery or loss of goods.
With respect to loss or damage other than loss of or damage to the goods, the nine-month period shall be counted from the time when the act or omission of the Company giving rise to the claim occurred.
21.Customary Remuneration Received from Third Parties.
The Company shall be entitled to be paid and retain all brokerages paid by carriers, commissions, documentation allowances, profits on foreign exchange and other remunerations paid by third parties as is customary in the trade.
All information pertaining to the Company and the services and / or rates the Company is providing shall be kept confidential by the Customer. Such Company information shall only be released as required by law.
23.Governing Law; Dispute Resolution.
These Conditions shall be governed by the laws of the Province of British Columbia and the laws of Canada applicable therein. By accepting the services provided under these Conditions, the Customer irrevocably attorns to the exclusive jurisdiction of the Courts of that Province and the Federal Court of Canada.
a) Notwithstanding any course of dealing, course of conduct, course of performance or usage of trade, no failure or delay by the Company to exercise any right, remedy, privilege or power shall operate as a waiver thereof, nor shall any single or partial exercise of any right, remedy, privilege or power prevent the Company from other or further exercise of any right, remedy, privilege or power.
b) These Conditions may be amended or modified from time to time by the Company. Company will provide notice to the Customer upon any material change to these Conditions. Notice of any amendments to these Conditions and the effective date shall be posted on the Company’s website at www.flexport.com.
c) Any provisions of these Conditions which are prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
d) These Conditions have been drawn up in the English language at the express request of the parties hereto. Les parties aux présentes ont expressément requis que la présente convention soit rédigée en langue anglaise.
e) The Parties agree that where they have used electronic communications to transact in whole or in part any business such communications will be given legal effect in accordance with the provisions of the Uniform Electronic Commerce Act as approved by the Uniform Law Conference of Canada, or other applicable legislation of similar object and effect that has been enacted by the Parliament of Canada or the legislature of a Canadian province or territory.