Carrier Terms & Conditions

USA Carriers

TERMS AND CONDITIONS BETWEEN SKYFER LOGISTICS INC, INC. AND MOTOR CARRIERS 

These terms and conditions between Skyfer Logistics inc, Inc. and motor carriers (“Rules”) applies to all shipments of commodities (“Goods”) for which Skyfer Logistics inc, Inc. (“Skyfer Logistics inc”) engages the services of a motor carrier or freight forwarder (“Carrier”).

Carrier, by agreeing to perform transportation or related services (“Services”), is bound by these Rules and waives, pursuant to 49 U.S.C. § 14101(b)(1), any all rights and remedies that it may have under 49 U.S.C. §§ 13101 through 14914 that are contrary to specific provisions of these Rules.

1. Skyfer Logistics inc as Broker

Skyfer Logistics inc is a transportation broker, authorized by MC 330574 to arrange for transportation of Goods by Carriers.

2. Carrier

Carrier is licensed by the Federal Motor Carrier Association (“FMCSA”) as a motor common carrier, motor contract carrier, or freight forwarder.

3. Scope

These Rules apply to all shipments tendered to Carrier by Skyfer Logistics inc or by third parties on behalf of Skyfer Logistics inc.

4. Incorporation of Skyfer Logistics inc/Customer Terms and Conditions/Rules

Carrier acknowledges that Skyfer Logistics inc and shippers, consignors, consignees, beneficial owners, and other parties requesting Services (“Customers”) will have entered into agreements, either by execution of written contracts or by incorporation of Skyfer Logistics inc’s tariffs. To the extent that those contracts and/or tariffs affect the rights and obligations of Carrier, Carrier is bound by those contracts and tariffs. Skyfer Logistics inc shall disclose to Carrier any applicable terms and conditions upon the written request of Carrier.

5. Safety Rating

By agreeing to perform Services, Carrier warrants that it does not have an “Unsatisfactory” safety rating as determined by the FMCSA.

6. Services6.1.

Carrier must transport safely, promptly, and efficiently all shipments tendered to it by Skyfer Logistics inc.

6.2.

Carrier, at its own cost and expense, must provide and maintain motor vehicles and other equipment used in providing its services, in good, safe, and efficient condition, and in compliance with all laws and regulations governing the maintenance and operation of such motor vehicles and other equipment.

6.3.

Carrier will accept instruction for changes in delivery place or time from Skyfer Logistics inc only. If Carrier accepts change instructions from parties other than Skyfer Logistics inc, Carrier does so at its own risk and will forfeit its right to compensation for the shipment.

7. Carrier Compensation7.1.

Carrier agrees to invoice Skyfer Logistics inc within ten (10) days of delivery of a shipment. Each invoice must include an original or legible copy of the signed bill of lading and the signed delivery receipt.

7.2.

Skyfer Logistics inc agrees to pay Carrier in accordance with individual Rate Confirmations, if applicable, or otherwise as agreed in writing.

7.3.

Skyfer Logistics inc may offset payments due to Carrier against payments owed from Carrier. Unless other payment terms are agreed to between the Parties, Skyfer Logistics inc will make payment to Carrier within thirty (30) days of receipt of an uncontested invoice.

7.4.

Skyfer Logistics inc is the sole party responsible for payment of Carrier’s charges. Carrier agrees not to seek payment from shippers, consignees, or any other parties.

7.5.

Carrier, for itself and on behalf of all approved agents and subcontractors, waives any lien which may exist against Goods. Carrier shall not withhold delivery of Goods due to any dispute with Skyfer Logistics inc, a shipper, a consignee, or any other party.

8. No Back Solicitation8.1.

Acceptance by Carrier of a load offered by Skyfer Logistics inc will constitute Carrier’s recognition that the shipper of the load is a customer of Skyfer Logistics inc.

8.2.

Carrier agrees not to solicit, arrange for, or accept, directly or indirectly, loads from Skyfer Logistics inc’s customers from anyone other than Skyfer Logistics inc.

8.3.

In the event of a breach of this provision, Skyfer Logistics inc will be entitled to a commission of 25% of the gross transportation revenue received by Carrier from Skyfer Logistics inc’s customer for a period of two (2) years after the last shipment subject to these Rules is delivered.

9. Bills of Lading, Documentation

Carrier must issue a bill of lading for each shipment and provide Skyfer Logistics inc with proof of acceptance and delivery of each shipment. The terms and conditions of any bill of lading or other freight documentation used by Carrier or its subcontractors will not supplement, alter, or modify these Rules

10. Cargo Loss, Damage, and Delay.10.1.

Except as otherwise provided in these Rules, Carrier is liable for loss, damage, or delay in connection with the Goods according to the provisions of 49 U.S.C. § 14706.

10.2.

Carrier’s liability for loss, damage, or delay in connection with Goods is for full actual loss and may not be limited by contract or otherwise.

10.3.

If Carrier receives a sealed trailer, Carrier must not allow the seal to be removed or compromised without authorization in writing from Skyfer Logistics inc or the owner of the Goods. Any failure to comply with this requirement will result in the Goods conclusively being deemed damaged in full.

10.4.

All claims for loss, damage, or delay will be processed in accordance with 49 CFR Part 370, except that claims must be concluded within 60 days of receipt. If a claim has not been concluded within 60 days of receipt, Skyfer Logistics inc has the right to set-off the claim amount from money due Carrier.

10.5.

Carrier shall not sell or attempt to sell any Goods that are the subject of transportation services governed by this Agreement.

10.6.

If Carrier’s failure to deliver a shipment as agreed results in a charge-back against Skyfer Logistics inc or Customer, Carrier is liable for the amount of the charge-back.

10.7.

Claims based on a concealed loss or damage, which are reported to Carrier within 15 days of the date of delivery, shall be treated by Carrier as if an exception notation had been made on the delivery receipt at the time of delivery.

11. No Lien

Carrier waives and relinquishes all rights it might otherwise have to impose a lien under state or federal law against the Goods and shall not otherwise withhold delivery of any Goods due to any dispute with Skyfer Logistics inc, shipper, consignee, or any other party.

12. Subcontracting

Carrier shall not broker, subcontract, or interline a shipment without the prior written approval of Skyfer Logistics inc. If Carrier does so without authority from Skyfer Logistics inc, neither Carrier nor the party performing services shall charge Skyfer Logistics inc or its customers for such services. In addition, whether or not Carrier has Skyfer Logistics inc’s prior written approval to broker, subcontract, or interline, Carrier will remain responsible and liable as if Carrier performed the services itself as a motor carrier.

13. Indemnification

Carrier shall indemnify, defend, and hold harmless Skyfer Logistics inc, shippers, consignees, and owners of the Goods, their officers, agents, and employees (“Indemnitees”) against any and all liability, claims, or expenses, including attorneys’ fees and other costs of defense, with respect to those claims relating in any way to Carrier’s, its employees’ or its subcontractors’ performance or failure to perform asserted against Indemnitees by any person or entity.

14. Insurance

At all times, at its own expense, Carrier will maintain the insurance specified below. All insurance must be primary and required to respond and pay prior to any other available coverage.

14.1.

Worker’s compensation insurance in statutory amounts;

14.2.

Employer’s Liability insurance with limits of not less than $1,000,000;

14.3.

Occurrence based commercial General Liability Insurance including blanket contractual coverage, with combined single limits of $1,000,000 for personal injury, including death, and $1,000,000 for each occurrence for property damage including: (i) Premises operation; and (ii) Contractual liability for the liability assumed by Carrier pursuant to any indemnification agreements between Skyfer Logistics inc and Carrier;

14.4.

Occurrence based Truckers Policy or Automobile Liability Insurance with limits of $1,000,000 per occurrence, and Hazardous Materials coverage of not less than $5,000,000 per occurrence if Hazardous Materials are handled; and

14.5.

Occurrence based cargo insurance with limits of liability of not less than $100,000 per shipment. Carrier’s cargo insurance policy shall not exclude coverage for fraud, infidelity, unattended vehicle, dishonesty, or criminal acts of carrier’s employees or agents. If the policies include such exclusions, Carrier must obtain and provide Skyfer Logistics inc with proof of a fidelity policy.

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Canada Carriers

TERMS AND CONDITIONS BETWEEN SKYFER LOGISTICS INC INC. AND MOTOR CARRIERS

These terms and conditions between Skyfer Logistics inc Inc. and motor carriers (“Rules”) applies to all shipments of commodities (“Goods”) for which Skyfer Logistics inc Inc. (“Skyfer Logistics inc”) engages the services of a motor carrier or freight forwarder (“Carrier”) in Canada.

Carrier, by agreeing to perform transportation or related services (“Services”), is bound by these Rules and waives, pursuant to any all rights and remedies that it may have according to law, that are contrary to specific provisions of these Rules.

1. Skyfer Logistics inc as Broker

Carrier acknowledges that Skyfer Logistics inc is a transportation broker duly registered as a transport service intermediary with the Quebec Transport Commission under number 0-C-30205-i and as a broker with the Federal Motor Carrier Safety Administration (“FMCSA”) under number MC883490. Skyfer Logistics inc is not a motor carrier or a freight forwarder, and is responsible only for arranging transportation and related services of Goods, not for actually performing the transportation or related services.

2. Carrier

Carrier performs motor carrier transportation services and is duly registered with at least one of the Canadian provincial transport authorities and/or licensed by the FMCSA to provide transportation and related services.

3. Scope

These Rules apply to all shipments tendered to Carrier by Skyfer Logistics inc or by third parties on behalf of Skyfer Logistics inc.

4. Incorporation of Skyfer Logistics inc/Customer Terms and Conditions/Rules

Carrier acknowledges that Skyfer Logistics inc and shippers, consignors, consignees, beneficial owners, and other parties requesting Services (“Customers”) will have entered into agreements, either by execution of written contracts or by incorporation of Skyfer Logistics inc’s terms and conditions with Customers. To the extent that those contracts and/or terms and conditions affect the rights and obligations of Carrier, Carrier is bound by those contracts, terms and conditions. Skyfer Logistics inc shall disclose to Carrier any applicable terms and conditions upon the written request of Carrier.

5. Safety Rating

By agreeing to perform Services, Carrier warrants that it does not have an “Unsatisfactory” safety rating as determined by any Canadian provincial transport authority or by the FMCSA.

6. Services6.1.

Carrier must transport safely, promptly, and efficiently all shipments tendered to it by Skyfer Logistics inc;

6.2.

Carrier, at its own cost and expense, must provide and maintain motor vehicles and other equipment used in providing its Services, in good, safe, and efficient condition, and in compliance with all laws and regulations governing the maintenance and operation of such motor vehicles and other equipment. Skyfer Logistics inc will not be liable to Carrier for any damage sustained by or to Carrier’s motor vehicles and other equipment or for loss by complication or seizure by any public authority;

6.3.

Carrier will accept instruction for changes in delivery place or time from Skyfer Logistics inc only. If Carrier accepts change instructions from parties other than Skyfer Logistics inc, Carrier does so at its own risk and will forfeit its right to compensation for the shipment;

6.4.

All transportation services will be performed in full compliance with federal, provincial, municipal and to the extent applicable, international laws or regulations governing its operations, as well as any legislation and related programs designed to protect transportation activities from terrorist attacks, such as the Custom-Trade Partnership Against Terrorism (“CTPAT”) and the Free and Secure Trade initiative.

7. Carrier Compensation7.1.

Carrier agrees to invoice Skyfer Logistics inc within ten (10) days of delivery of a shipment. Each invoice must include an original or legible copy of the signed bill of lading, the signed delivery receipt(s) and any other billing documents reasonably requested by Skyfer Logistics inc;

7.2.

Provided such documents are received, Skyfer Logistics inc agrees to pay Carrier in accordance with individual rate confirmations, if applicable, or otherwise as agreed in writing. Unless other payment terms are agreed to between the parties, Skyfer Logistics inc will make payment to Carrier within thirty (30) days of receipt of Carrier’s bill of lading and delivery receipts;

7.3.

Skyfer Logistics inc shall have the right to set off claims for loss, damage or delay, and claims for overcharge or duplicate payment, against freight or other charges owed to Carrier;

7.4.

Skyfer Logistics inc is the sole party responsible for payment of Carrier’s charges. Carrier agrees not to seek payment from shippers, consignees, or any other parties;

7.5.

Carrier, for itself, and on behalf of all approved agents and subcontractors, waives its rights to any lien which may exist against Goods or property of Skyfer Logistics inc or any of its Customers, shippers or consignees. Carrier shall not withhold delivery of Goods due to any dispute with Skyfer Logistics inc, a shipper, a consignee, or any other party.

8. No Back Solicitation8.1.

Acceptance by Carrier of a load offered by Skyfer Logistics inc will constitute Carrier’s recognition that the shipper of the load is a Customer of Skyfer Logistics inc;

8.2.

Carrier agrees not to solicit, arrange for, or accept, directly or indirectly, loads from Skyfer Logistics inc’s Customers from anyone other than Skyfer Logistics inc;

8.3.

In the event of a breach of this provision, Skyfer Logistics inc will be entitled to a commission of 20% of the gross transportation revenue received by Carrier from Skyfer Logistics inc’s Customer for a period of three (3) years after the last shipment, subject to these Rules, is delivered.

9. Bills of Lading and Other Shipping Documents

Carrier must issue a bill of lading for each shipment and provide Skyfer Logistics inc with proof of acceptance and delivery of each shipment. Said bill of lading shall indicate the kind, quantity and condition of Goods by Carrier in apparent good order and condition unless such Goods are not readily observable (contents and condition of contents of package unknown) or as may be otherwise noted on the face of the bill of lading. The terms and conditions of any bill of lading or other freight documentation used by Carrier or its subcontractors will not supplement, alter, or modify these Rules. If Skyfer Logistics inc is erroneously identified as the “carrier” on any bill of lading or other documents at the origin point or in the course of transit, such designation does not in any way, modify or amend the relationship between Skyfer Logistics inc and the Carrier under these Rules or the role of Skyfer Logistics inc as a transport service intermediary or broker.

10. Cargo Loss, Damage, and Delay10.1.

Except as otherwise provided in these Rules, Carrier is liable for loss, damage, or delay in connection with the Goods accepted by Carrier or its agent. Carrier’s duties and responsibilities under these Rules shall commence when Carrier takes possession and control of Skyfer Logistics inc’s Customers’ Goods or upon execution or such bill of lading or receipt by Carrier, whichever occurs first, and shall end when consignee signs the bill of lading or delivers a receipt and Carrier delivers the Goods;

10.2.

Carrier shall be liable for the total, actual value of the shipments tendered by Skyfer Logistics inc to Carrier, including the freight and other costs, if so paid. The terms “actual value” means the value of the Goods at the place and time of shipment;

10.3.

If Carrier receives a sealed trailer, Carrier must not allow the seal to be removed or compromised without authorization in writing from Skyfer Logistics inc or the owner of the Goods. Any failure to comply with this requirement will result in the Goods conclusively being deemed damaged in full;

10.4.

All claims for loss, damage, or delay must be concluded within sixty (60) days of receipt. If a claim has not been concluded within sixty (60) days of receipt, Skyfer Logistics inc has the right to set-off the claim amount from money due Carrier;

10.5.

Carrier shall not sell or attempt to sell any Goods that are the subject of transportation services governed by these Rules. In the event branded or labeled Goods are damaged, Skyfer Logistics inc’s Customer may determine, at its entire discretion, whether the Goods can be salvaged, and if salvageable, the value of such salvage. Any salvage receipts shall be deducted from the amount of Skyfer Logistics inc’s claim against Carrier. If Skyfer Logistics inc’s Customer permits its Goods to be salvaged, and Carrier pays the total, actual value of the damaged Goods, Carrier may retain custody of the Goods after removing all identifying marks or labels;

10.6.

If Carrier’s failure to deliver a shipment as agreed results in a charge-back against Skyfer Logistics inc or Customer, Carrier is liable for the amount of the charge-back;

10.7.

Claims based on a concealed loss or damage, which are reported to Carrier within fifteen (15) days of the date of delivery, shall be treated by Carrier as if an exception notation had been made on the delivery receipt at the time of delivery.

11. No Lien

Carrier waives and relinquishes all rights it might otherwise have to impose a lien under federal or provincial law against the Goods and shall not otherwise withhold delivery of any Goods due to any dispute with Skyfer Logistics inc, shipper, consignee, or any other party.

12. Subcontracting12.1.

Carrier shall not broker, subcontract, or interline a shipment without the prior written approval of Skyfer Logistics inc. If Carrier does so without authority from Skyfer Logistics inc, neither Carrier nor the party performing services shall charge Skyfer Logistics inc or its customers for such services. In addition, whether or not Carrier has Skyfer Logistics inc’s prior written approval to broker, subcontract, or interline, Carrier will remain responsible and liable as if Carrier performed the services itself as a motor carrier;

12.2.

Carrier shall not divert or reconsign any shipment except upon written instructions from Skyfer Logistics inc. Carrier shall not accept instructions for diversion or reconsignment from any consignee without notice to Skyfer Logistics inc, and written consent of Skyfer Logistics inc.

13. Indemnification13.1.

Carrier shall indemnify Skyfer Logistics inc for any fines, costs, claims, liability or expenses that may incur and arise out of violations by Carrier of any applicable laws and regulations during Carrier’s performance under these Rules;

13.2.

Carrier shall defend, indemnify, and save Skyfer Logistics inc, its affiliated entities, customers, shippers, consignees, directors, officers, employees and agents harmless from and against any and all losses, costs, expenses, claims, demands, liabilities, fines, damages, suits, proceedings for actions (including all reasonable expenses and attorneys’ fees) arising out of injuries to or the death of any person or persons, or arising out of loss or damage to the business or property of any person or persons, including the property of Skyfer Logistics inc caused by or resulting, whether directly or indirectly, from the receipt, transportation and/or delivery of any shipment subject to these Rules by Carrier, or any of its agents, employees or sub-contractors (collectively referred to as the “Claims”), including, without limitation, Claims based on a party’s breach of warranty and Claims for any violation of any law, ordinance or regulation, except for Claims arising out of Skyfer Logistics inc’s wrongful act or omission or negligence;

13.3.

Carrier will hold harmless and indemnify Skyfer Logistics inc for any claim for insurance premium or any claim by an employee of the Carrier for injuries sustained in the ordinary course of business including, but not limited to, drivers, lumpers, helpers, agents or subcontractors of Carrier.

14. Insurance

At all times, at its own expense, Carrier will maintain the insurance specified below. All insurance must be primary and required to respond and pay prior to any other available coverage.

14.1.

Worker’s compensation insurance which complies with all applicable provincial or state requirements;

14.2.

Occurrence based commercial General Liability Insurance including blanket contractual coverage, with combined single limits of $1,000,000 for personal injury, including death, and $500,000 for each occurrence for property damage including: (i) Premises operation; and (ii) Contractual liability for the liability assumed by Carrier pursuant to any indemnification agreements between Skyfer Logistics inc and Carrier.

14.3.

Occurrence based Truckers Policy or Automobile Liability Insurance with limits of $1,000,000 per occurrence, and Hazardous Materials coverage of not less than $5,000,000 per occurrence if Hazardous Materials are handled; and

14.4.

Occurrence based cargo insurance with limits of liability of not less than $100,000 per shipment. Carrier’s cargo insurance policy shall not exclude coverage for fraud, infidelity, unattended vehicle or from a trailer detached from the power unit, dishonesty, or criminal acts of carrier’s employees or agents. If the policies include such exclusions, Carrier must obtain and provide Skyfer Logistics inc with proof of a fidelity policy or surety bond providing such coverage to the satisfaction of Skyfer Logistics inc.

Except for Worker’s Compensation Insurance, the above policies and certificates must name Skyfer Logistics inc as an additional insured. Carrier Shall furnish to Skyfer Logistics inc a copy of each such insurance policy and written certificate of insurance. All policies and certificates must require that the insurer provide Skyfer Logistics inc at least thirty (30) days notice of any material changes or cancellation.

15. Business Conduct

Carrier will comply with Skyfer Logistics inc’s policy to ensure that its company, senior management and all of its companies’ employees and suppliers are committed to complying with all relevant legislation and appropriate guidelines designed to detect, deter, and prevent money laundering and other activities intended to facilitate the funding of terrorist or criminal activities. The Carrier will at all times ensure the protection of its staff, and safeguard Skyfer Logistics inc’s organization and reputation against the threat of money laundering and the funding of terrorist and criminal activities.

16. Relationship Between the Parties

The relationship of Carrier to Skyfer Logistics inc shall at all times, be that of an independent contractor, except that Skyfer Logistics inc will be the agent for Carrier for the collection and payment of charges to Carrier. The Carrier authorizes Skyfer Logistics inc to invoice its Customers, the shipper or consignee for freight charges on behalf of the Carrier and the Carrier agrees that Skyfer Logistics inc is solely responsible for payment of all freight charges to the Carrier.

17. Applicable Laws

These Rules shall be governed by and interpreted in accordance with laws of the Province of Quebec and the federal laws of Canada applicable within. All disputes arising under these Rules must be submitted to the jurisdiction of courts from the judicial district of Montreal, Province of Quebec or the Federal Court of Canada.

Invoice Terms & Conditions

Between Skyfer Logistics inc, hereafter referred to as the “Company” and the “Customer”

Payment

Unless otherwise stipulated on the invoice, the standard terms assigned to the Company’s customers are 30 days net from the date on the invoice. All charges are payable in the currency stipulated on the invoice. The method of payment is via check, electronic funds transfer, money order or credit card. Customers who wish to remit payment via credit card must obtain written approval from the Company and will be subject to all additional credit card or processing fees. Invoices not paid within terms will incur a late payment charge of 2% monthly (24% per annum). Overpayments and credit notes on accounts do not accrue interest and are not the responsibility of the Company to advise the Customer of such. In the event the Company retains an attorney or collection agency to collect unpaid charges, the party liable for payment will be responsible for all related costs and expenses incurred by the Company in attempting to recover monies owed. Such costs include, but are not limited to, lawyers’ fees, collection agency fees, interest and court costs.

Credit

All Customers are subject to credit approval. The company will perform a credit investigation based on the information provided at the time of enrollment by the Customer. The amount of credit, if any, granted to the customer is at the sole discretion of the Company. The invoice date commences the credit term cycle, and payment is due within 30 days of the invoice date, with exception of Air shipments, containerized ocean shipments or shipments to or from Mexico, where payment terms are Net 15 days from invoice date. The company reserves the right to deny service to any Customer whose account is not in good standings. On delinquent accounts, the Company also reserves the right to deny or withhold delivery of freight in transit to the consignee until acceptable payment amounts are received or alternative payment arrangements are approved.

Claims

The Company will act as the primary point of contact for all claims. To ensure timely processing and resolution, a Customer wishing to file a claim is required to notify the Company within 30 days of shipment receipt date. The company reserves the right to refuse any claim received after such time frame. The customer may not deduct any pending claim amounts from their account balance without written notification from the Company.

– SKYFER LOGISTICS INC

Warehousing Terms & Conditions

USA

USA- STANDARD TERMS AND CONDITIONS FOR WAREHOUSING OF SKYFER LOGISTICS INC.

1. DEFINITIONS1.1.

“Goods” or “Stored Goods”: shall mean the goods delivered to the Warehouseman for storage and/or cross-docking, unloading, breakdown, repacking, reloading and forwarding, and such packaging supplies and other similar items, if any, that may be furnished by or on behalf of Owner to Warehouseman for receiving, handling, shipping, transporting and/or disposing of the goods or for use by Warehouseman in providing the Services.

1.2.

“Owner”: shall mean the owner of the Stored Goods as well as its agent and authorized representatives and shall include the holder of a negotiable receipt, any party with a security interest in the Stored Goods and the party delivering the Stored Goods to the Warehouseman. Owner represents that it is a merchant and that the Goods are stored in the course of its business.

1.3.

“Warehouseman”: shall mean Skyfer Logistics inc.as well as its parents, affiliates, subsidiaries, agents, employees, authorized representatives, successors and assigns.

2. SERVICES2.1.

During the term of this Agreement, Warehouseman agrees to provide certain warehousing and related services as set forth on the Quotation (the “Services”) at the facility or facilities identified on the Quotation (collectively, the “Facility” or the “Warehouse”). In providing the Services, Warehouseman shall exercise such care with respect to the Goods under its custody and control as a reasonably careful person would exercise under like circumstances (the “Standard of Care”).

2.2.

Warehouseman shall perform the Services pursuant to the Standard of Care. The rates and charges set forth in the Quotation shall cover ordinary labor and administration involved in receiving the Goods at the Facility’s door or dock; placing the Goods in storage at the Facility and returning the Goods to the Facility’s door or dock. Outbound shipments will be coordinated between Warehouseman and the Owner. Warehouseman shall maintain an accurate count of all shipments of Owner Products into and out of the Facility. Warehouseman shall report to the Owner the count taken on each inbound and outbound shipment and, once reported to the Owner, such count shall establish the number of cases and/or pallets received or shipped unless other written documentation can prove to the contrary.

2.3.

Warehouseman reserves the right to make such reasonable rules and regulations regarding the Services rendered under this Agreement as may from time to time be necessary for the care, safety, management, and security of the Facility.

3. WAREHOUSEMAN’S LIEN AND RIGHT OF RETENTION

Subject to the legislation in force governing warehouseman’s lien or right of retention in the state where the Stored Goods received are stored, the Warehouseman shall have a general warehouseman’s lien or right of retention upon the Stored Goods from the delivery of the Goods to the warehouse and until all lawful charges for handling, storage, and preservation of the Stored Goods and for all lawful claims for money advanced, interest, insurance, transportation, labor and all other expenses, fees, charges, costs, liabilities and all other payments and expenses made or incurred by the Warehouseman towards said Stored Goods have been paid or reimbursed to the Warehouseman in full. Warehouseman further claims a general warehouse lien on all such charges, advances and expenses with respect to any other goods stored by Owner at any other facility owned or operated by Warehouseman. In order to protect its lien, Warehouseman reserves the right to require advanced payment of all charges prior to shipment of Goods. Warehouseman shall be entitled to retain physical care, custody and control of Goods until all charges due thereon to Warehouseman shall have been fully paid, without liability to Owner or any other party, and if such charges have not been paid in full within a period of thirty (30) days after any breach, insolvency, or bankruptcy by Owner, Warehouseman may sell the Goods for Owner’s account on any terms that are commercially reasonable, and at such time as it may determine, after notification to all persons known to claim an interest in the Goods. After first taking from the net proceeds of such sale or sales, all charges due to Warehouseman hereunder and the expenses of such sale or sales, including attorney’s fees, Warehouseman shall pay over the balance, if any, of such sales proceeds to Owner

4. CHARGES4.1.

All charges applicable to the Services are set forth in the Quotation and Goods are stored on a month-to-month per package (or other agreed upon unit) basis, unless otherwise provided. The rates of storage, as provided in the Warehouseman’s Quotation are per calendar month. The storage month begins on the date that Warehouseman accepts care, custody and control of the Goods, regardless of unloading date or date of issue of warehouse receipt.

4.2.

The class of storage in which the Goods are to be stored, the amount or amounts owed hereon for disbursements or services rendered by the Warehouseman prior to receiving cargo and the rate per month per unit to be charged for storage of such Goods are set out in the Quotation provided to the Owner; said Quotation being expressly accepted prior to the commencement of the work.

4.3.

Basic handling rates described in the Quotation are not covering the following items: marking, labelling, sampling, palletizing, repairs, measuring, weighing, inspection, physical inventory tracking, which shall be invoiced by the Warehouseman in addition to such basic handling rates.

4.4.

Charges for additional services required by the Owner or necessitated by the nature of the Stored Goods together with handling charges upon delivery of the Goods out of storage, will be invoiced by the Warehouseman in addition to the monthly storage charge prescribed by the Quotation provided to the Owner.

4.5.

Any charge made with respect to the Stored Goods shall conform to the Warehouseman’s rates in effect at the time the service is performed. Quotations for services not included in such rates will be given on request. No increase in regularly recurring charges will be made on Goods in storage until thirty (30) days after a notice of such increased charge has been mailed to the Owner of the Stored Goods, unless otherwise agreed by the Owner.

4.6.

Owner agrees to pay Warehouseman in U.S. funds fifteen (15) days after receipt of invoice. Owner agrees to pay for any services performed by Warehouseman and not specified herein, as invoiced by Warehouseman. Payments received by Warehouseman may be applied first to late charges or the oldest storage charges due, at Warehouseman’s sole discretion. In the event that the Owner shall fail to pay when due any undisputed charge due and payable hereunder, then Warehouseman may withhold all Services hereunder. Failure by the Owner to comply with this provision shall be considered a material breach of this Agreement. If such breach continues for a period of thirty (30) days after written notice of the breach is received by the Owner, Warehouseman may terminate this Agreement immediately upon written notice to the Owner. Such termination shall not relieve the Owner from payment or satisfaction of any amounts or obligations accrued and outstanding as of the effective time of termination.

4.7.

In the event of a good faith dispute regarding any invoices, Owner shall pay the fees which are not in dispute and shall provide written notice of those fees which are in dispute within fifteen (15) days of receipt of invoice.

4.8.

If Owner fails to make payment of the invoices when due, Owner shall pay to Warehouseman a late payment charge at the rate of one- and one-half percent (1.5%) of such invoice amounts per month from the date that such invoices were due. Additionally, if any disputed portion of an invoice is later paid by Owner or is determined subsequently to be due and owing to Warehouseman, Owner shall also pay Warehouseman interest on such amount at the rate of one and one half percent (1.5%) of such invoice amounts per month from the original date that such invoices were due.

5. DELIVERY AND TRANSFER REQUIREMENTS5.1.

No Stored Goods shall be delivered or transferred unless the Warehouseman has received, under an acceptable form, written instruction signed by the Owner at least twenty-four (24) hours before the loading and/or the partial or total delivery of the Stored Goods. Unless otherwise provided in a separate Shipper-Broker Agreement between Owner and Warehouseman, it shall be Owner’s responsibility to arrange for the transportation of the Goods to the Facility. Warehouseman shall not be required to accept delivery of any Goods that are not accompanied by a receipt containing complete instructions properly authorized and executed by Owner. Owner shall, with respect to all Goods shipped to the Facility, identify Owner on the bill of lading or other contract of carriage as the named consignee, in care of the Facility and shall not identify either the Facility or Warehouseman as the consignee unless the shipment is specifically consigned to Warehouseman as the Owner. If, in violation of this Section 5.1, Goods are shipped to the Facility naming either the Facility or Warehouseman as the consignee on the bill of lading or other contract of carriage, Owner shall immediately notify the transporting carrier in writing, with a copy of such notice to Warehouseman, that the Facility and/or Warehouseman named as the consignee is the “in care of party” only and has no beneficial title or interest in the Goods. Furthermore, Warehouseman shall have the right to refuse such Goods and shall not be liable for any loss, mis consignment, or damage of any nature to, or related to, such Goods. If Warehouseman accepts the Goods shipped in violation of this Section 5.1, Owner agrees to indemnify, defend, and hold Warehouseman harmless from all claims for transportation, storage, handling or other charges relating such Goods, including undercharges, demurrage, truck/intermodal detention and any other charges of any nature whatsoever.

5.2.

If the loading and/or the delivery is made in any other way than the one set out in Subsection 5.1 above, then, notwithstanding acceptance of such instructions by the Warehouseman or its employees, delivery of such Stored Goods shall be wholly at the risk of the Owner and the Warehouseman shall not be held responsible for loss from error in the giving or receiving of such instructions.

5.3.

Unless all unpaid charges incurred with respect to the Stored Goods to be delivered or transferred are paid in full or assumed by the transferee, delivery or transfer thereof may be refused.

5.4.

In accordance with Section 3 above, the Warehouseman has a lien and/or a right of retention for all lawful charges for storage, cross-docking, breakdown, repacking, reloading, forwarding and preservation of the Stored Goods as well as for all lawful claims for money advanced, interest, insurance, transportation, labour, weighing, cleaning of damaged Stored Goods and other charges and expenses in relation to such Stored Goods

5.5.

All Goods shall be delivered to the Facility in a segregated manner, properly marked and packaged for handling. The Owner shall furnish or cause to be furnished to Warehouseman, at or prior to such delivery, a manifest containing detailed product identifying information and any instructions as to how the Goods shall be kept and/or accounted for. Warehouseman shall promptly report to Owner information regarding any Goods delivered to Warehouseman in a defective or deficient quality or quantity. Warehouseman may, without notice, move the Goods within the Facility. Warehouseman and the Owner will periodically discuss, review and revise, if necessary, the policies and procedures used by the parties in provision of the Services.

5.6.

Owner shall timely inform Warehouseman of and provide Warehouseman with the most current and pertinent information concerning any special characteristics of the Goods including, but not limited to, safety and health information, toxicological information, applicable environmental data, labeling and transportation information, and the procedures known to or developed by the Owner with respect to the receiving, storing, handling, shipping, transporting and/or disposing of the Goods (the “Product Information Data”). Owner will provide all Material Safety Data Sheets (MSDS) for all Goods where applicable. Owner shall currently and promptly keep Warehouseman advised of applicable laws, rules and regulations of governmental authorities affecting or relating to the Goods and any health and safety practices that are required thereby. If the nature of the Goods or any special characteristics thereof, requires Warehouseman, in order to be in compliance with applicable laws, rules and regulations, to: (i) alter or modify the Facility in any way; (ii) obtain any special governmental permits or licenses; or (iii) provide special training to its employees, Owner shall be responsible for all such costs and expenses and shall cooperate with Warehouseman as is reasonably necessary.

5.7.

For any Goods containing special characteristics or which are hazardous substances or materials, Owner agrees to timely furnish Warehouseman with all correct and proper information and instructions to permit Warehouseman to prepare the same for shipment, including shipping papers and certifications, in a manner which conforms such shipments with all applicable governmental regulations. Owner appoints Warehouseman as its agent for the purposes of preparing the shipments and signing the certifications and shipping papers covering the shipment.

6. ACCESS AND INSPECTION6.1.

The Owner of the Stored Goods or any person upon the written authority of the Owner may, subject to insurance regulations or other reasonable limitations imposed by the Warehouseman, have access to the Stored Goods for inspection thereof when and only when accompanied by a representative of the Warehouseman for that purpose, whose time shall be charged according to the Warehouseman’s rates in force at the time of such access.

6.2.

If a checker is not furnished by the Owner or its carrier, the Warehouseman’s load or unload count shall be conclusively deemed to be correct and accepted by the Owner.

7. REMOVAL OF GOODS7.1.

The Warehouseman may, upon written notice to the Owner of the Stored Goods and to any other person known by the Warehouseman to claim an interest in the Stored Goods, require the removal of the Stored Goods by the end of the next proceeding storage month. Such notice shall be given by delivery in person or by registered letter addressed to the last known place of business of the party to be notified.

7.2.

Where Stored Goods are of a perishable nature or by keeping will deteriorate greatly in value or cause damage to other stored goods or the Warehouseman’s property or employees, the Warehouseman may give a notice to the Owner requiring him to satisfy all outstanding charges in connection with the Stored Goods and to remove them from the warehouse; should such person fail to remove the Goods within the period specified in the notice, the Warehouseman may sell the Stored Goods at public or private sale without advertising, and otherwise act with respect thereto and keep any proceeds of sale thereof as may be permitted or provided by the laws of the state where the Goods are stored, and in such case, the Owner shall be liable to the Warehouseman for any balance of charges accrued and unsatisfied on such Stored Goods.

7.3.

Where in the opinion of the Warehouseman, the nature or condition of the Stored Goods creates a condition hazardous to the safekeeping and storage of other commodities in the warehouse or to any property or person, Warehouseman shall promptly notify the Owner and the Owner shall promptly thereupon claim its interest in such Goods and remove them from the Facility at the Owner’s sole cost and expense. For any hazardous waste that is generated from the Goods during Warehouseman’s performance of the Services, Owner shall be considered the waste generator and waste transporter. Warehouseman’s obligations with respect to such hazardous waste shall be limited to preparing such waste for pickup at the Facility in accordance with Owner’s procedures for pickup and disposal by a Owner-approved and licensed carrier or transporter, under contract with Owner, for disposal at a permitted and licensed disposal site. Warehouseman shall not be liable or responsible for the actual disposal of such hazardous waste.

7.4.

Where loss or damage occurs to tendered, stored or handled Goods for which Warehouseman is not liable, Owner shall be responsible for cost of removing and disposing of such Goods and the cost of any environmental clean up in site remediation resulting from the loss or damage to the Goods. Damaged or unsalable Goods are to be removed from the Facility in accordance with the Owner’s instructions. If non-hazardous waste is generated from the Goods, Warehouseman shall dispose of the same. The Parties shall confer, if deemed necessary by Warehouseman, to determine if such waste is hazardous.

8. LIABILITY OF WAREHOUSEMAN8.1.

All Goods stored with the Warehouseman shall be at Owner’s risks. The Warehouseman shall not be liable for any loss or damage or deterioration to the Stored Goods whether through its negligence or for any other cause whatsoever unless such damage or loss resulted from a failure of Warehouseman to perform the Services in accordance with the Standard of Care or any damages which could not have been avoided by the exercise of such care. Additionally, Warehouseman shall not be liable for any loss or damage to the Goods: (i) caused by any defects in the manufacturing or packaging of such Goods; (ii) attributable to transportation providers failing to deliver the full shipment of expected Goods to the Facility or otherwise caused by the acts or omissions of such transportation providers; (iii) delivered to the Facility in damaged condition and such damage was reported to Owner; (iv) attributable to concealed damage; and (v) as a result of the negligence or intentional misconduct of Owner or any of its employees, agents or subcontractors. Notwithstanding the foregoing, under no circumstance will Warehouseman assume any liability for penalties, financial or otherwise, that may exist in contracts between Owner and any of Owner’s customers (for the avoidance of doubt, this sentence does not include any indemnity obligations of Warehouseman pursuant to this Agreement). The Owner expressly releases Warehouseman from and agrees to indemnify, defend, and hold harmless Warehouseman against any and all claims for such loss or damage described in this Section 8.1, including, without limitation, costs and reasonable attorneys’ fees incurred by the Warehouseman in connection therewith.

8.2.

The quality, condition, contents and value of the Stored Goods are not known to the Warehouseman except as declared on the packing list by the Owner. The Warehouseman shall have no responsibility for errors resulting from the corruption of electronically transmitted data, or from verbal or telephoned shipping instructions, unless written confirmation of such instructions is received not less than twenty-four (24) hours prior to the shipment of the Goods, as provided in Subsection 5.1 above.

8.3.

Storage rates do not include insurance. Goods stored are not insured by the Warehouseman and the charges do not include insurance unless specified in writing and signed by the Warehouseman. Accordingly, it is the sole responsibility of the Owner to insure the Stored Goods are insured at the Facility to cover loss of or damage to the Goods. As set forth above, if Owner carries any insurance on the Goods, Owner and Owner’s insurance carrier shall waive subrogation against Warehouseman. Copies of such waivers shall be furnished to Warehouseman on request.

8.4.

Without limiting the generality of Subsections 8.1 to 8.3 above, it is specifically declared and agreed that: (i) the Warehouseman shall in no circumstances be liable for loss or damage or deterioration to the Stored Goods, or delay in the delivery, resulting from any of the following perils or circumstances: inaccuracies, obliteration or absences of marks, numbers, address or description, fire or explosion from any cause, flood, wind, storm, earthquake or other acts of God, irresistible force, war, insurrection, riot, civil or military authority, strikes, picketing or any other labor trouble, shrinkage in weight, loss in quality or due to the inherent or perishable nature of the Stored Goods, insufficient boxing, crating or packaging, for wear and tear or any cause beyond the control of the Warehouseman. No responsibility will be assumed for loss of or damages to Stored Goods by leakage or failure to detect the same or for concealed damage, or for loss or damage caused by breakage, theft, mice, vermin, sprinkler leakage, steam, frost, heating or corruption, rust, decay or water or other damages resulting from defects in the structure of the warehouse, including the water system, sewer, drainage, electricity, theft or vandalism at the warehouse, or for damages resulting from the usage of the warehouse space; (ii) Warehouseman shall not be responsible or liable to Owner, or any person claiming by, through or under the Owner, for any loss of, damage or injury to any property or to any persons at any time in or about the Facility from theft, fire, explosion, falling plaster, bursting, breakage, leakage, steam, gas, electricity, water, dampness, sewage, lightning, rain, wind, snow, or any other cause whatsoever which is beyond the reasonable control of Warehouseman, nor shall Warehouseman be in any way responsible or liable to the Owner, or any person claiming by, through or under the Owner in case of any accident or injury including death to any of the Owner’s employees, agents, or invitees or to any person or persons in or about the Facility. Warehouseman shall employ the same measure of care (but in no event less than reasonable care) that Warehouseman employs in protecting its own products and personnel for purposes of ensuring that Owner’s property, employees, agents and invitees are not exposed to harm while in the Facility. (iii) the Warehouseman shall in no circumstances be liable for any direct or indirect loss, consequential damages, or special damages, including but not limited to loss of profit, loss of business, loss of business opportunities, loss of Owner goodwill or punitive or exemplary damages or the cost and expenses in providing or securing substitute revenues or substitute service providers, for any reason whatsoever even if Warehouseman has been advised of the possibility of the same, and without regard to the nature of the claim and the underlying theory or cause of action (whether in contract, tort, or otherwise).(iv) all the Warehouseman’s charges incurred with respect to Goods lost or damaged as a result of any such peril, including without limitation the costs of removing and disposing of such Goods and the costs of any environmental cleanup and site remediation, shall constitute a charge on the remaining Stored Goods and against the Owner.

8.5.

Subject to the limitations set forth herein, and without limiting the generality of the foregoing, in any event, the liability of the Warehouseman shall be limited to the ”Replacement Cost” of lost or damaged Stored Goods while the Goods are in Warehouseman’s care, custody and control to the extent such loss or damage results from Warehouseman’s failure to perform the Services in accordance with the Standard of Care, but in no case shall the liability exceed fifty dollars ($50.00) per pallet. For purposes of this Agreement, “Replacement Cost” shall mean the lower of Owner’s actual manufacturing or acquisition cost to replace the lost or damaged Goods at their pre-loss condition, plus shipping and handling costs less salvage value, if any. When determining Warehouseman’s responsibility for lost Goods, Warehouseman shall be entitled to an annual allowance (the “Allowance”) as defined in the Quotation or otherwise agreed to by the parties, which must be exceeded prior to Warehouseman being liable for any damage, loss, or shortages of Owner’s Goods, in order to account for normal handling losses such as evaporation, shrinkage, line loss, clingage, measurement errors, temperature variations, scale variations, and the like.

8.6.

Notwithstanding anything contained in this Agreement to the contrary, Owner hereby waives and releases for itself and its insurers, any and all rights of recovery, claims, actions, or causes of action, against Warehouseman, its agents, contractors, officers, or employees for loss of or damage to Goods that are within the Allowance or in excess of fifty dollars ($50.00) per pallet and Owner covenants that no insurer shall hold any right of subrogation against Warehouseman. The failure of Owner to secure an appropriate clause in, or endorsement to, its respective insurance coverage, which waives the right of subrogation as provided for above, shall not in any manner affect the intended waiver and release hereunder and, if Owner’s insurance company seeks subrogation against Warehouseman because of the absence of such a waiver and release, then Owner shall defend, indemnify and hold Warehouseman harmless from and against such subrogation claim.

8.7.

When errors in the shipment of the Goods occur, the liability of the Warehouseman shall be strictly limited to the transportation costs to be incurred to rectify any such error, and shall not, under any circumstances, include liability for damages due to the acceptance or use of said Goods.

8.8.

The Warehouseman shall not be responsible for delays in loading or unloading railway cars, trailers or other containers, nor for demurrage charges or other time penalties arising from any delay which cannot be reasonably avoided by the Warehouseman in the normal course of its business.

9. OWNER OBLIGATIONS

The Owner represents and warrants to Warehouseman that the Owner is the owner of the Goods at all times that they are in the custody of Warehouseman or otherwise has the lawful possession of and legal right to store all of the Goods tendered to Warehouseman hereunder. The Owner agrees to pay all storage and other charges which Warehouseman may incur or become liable for or by judgment be compelled to pay in connection therewith, as well as any costs incurred by Warehouseman in collecting same including, but not limited to, reasonable attorneys’ fees. Owner agrees to pay all taxes and assessments whether Federal, state or local which may be assessed against the Goods at any time, and to hold Warehouseman harmless therefrom.

10. INDEMNITY10.1.

Each Party hereto (the “Indemnitor”) shall indemnify, defend, and hold harmless the other Party and any affiliated and controlling entities of such Party, and the directors, employees, officers, agents, subcontractors, licensors and suppliers of all of them (the “Indemnitee”) from and against all third party liabilities, claims, suits, demands, actions, fines, damages, losses, costs and expenses (including reasonable attorneys’ fees) (“Claims”) for injury to or death of any person or damage to or loss of real property and improvements thereon or tangible personal property to the extent caused by or resulting from such Party’s negligent acts or omissions or those of its employees or agents, except to the extent caused by the Indemnitee; provided, however, that this Section 10.1 shall not apply to any loss or destruction of, or any damage to Goods for which the Services are provided.

10.2.

Owner shall indemnify, defend and hold harmless Warehouseman and its Indemnitees from and against any third party Claims including, but not limited to, third party Claims arising out of or in connection with: (i)  the design, manufacture, distribution, marketing, use or sale of the Goods; (ii) lost, damaged or undelivered Goods; (iii) Goods which are not timely delivered; (iv) any and all receiving or shipping charges of any kind, including without limitation, demurrage or detention charges, unless such charges are the result of Warehouseman’s negligent acts or omissions; (v)  any and all loss, injury or damage to the Goods shipped to Warehouseman as consignee which are refused and returned by Warehouseman to their originating point and all costs associated therewith; (vi) any and all losses and other damages, including fines, penalties or charges, which Warehouseman may incur (including reasonable attorneys’ fees and costs), resulting from Owner’s failure to provide timely and accurate Product Information Data; and (vii) the performance or non-performance of the Services, except as provided for in Section 10.1 above.

10.3.

The Indemnitee shall provide prompt written notice of any Claim, tender defense or settlement to the Indemnitor, and fully cooperate in the defense of the Claim; provided that the failure to give such notice shall not affect the Indemnitee’s right to indemnification hereunder unless the failure to give such notice materially and adversely affects the rights, remedies, or liability of the Indemnitor with respect to such Claim. Should the Indemnitor fail to honor a timely request for indemnification, then the Indemnitee shall be entitled to all reasonable attorneys’ fees and costs incurred in the enforcement of the right of indemnification hereunder.

10.4.

No compromise or settlement of a Claim may be effected by the Indemnitor without the Indemnitee’s consent unless: (i) there is no finding or admission of any violation of law or any violation of the rights of any person by Indemnitee; (ii) there is no effect on any other Claim that may be made by or against Indemnitee; (iii) the sole relief provided is monetary damages that are paid in full by the Indemnitor; and (iv) the compromise or settlement contains, as an unconditional term thereof, the giving by the claimant or the plaintiff of the Indemnitee a release from all liability in respect of such Claim. The Indemnitee shall have no liability with respect to any compromise or settlement effected without its consent.

11. CLAIMS

All claims for lost or damaged Goods must be made in writing either (i) immediately upon discovery of damage, or (ii) within 15 days of the happening of the event on which the claim is based or 5 days of its discovery if later. No action may be maintained by Owner for loss or damage to Goods unless a timely written claim has been given as provided above and unless such action is commenced within twelve (12) months from the date of such written claim. Warehouseman must be afforded an opportunity to inspect damaged Goods. Warehouseman shall not be responsible for shrinkage in weight, nor for loss or damage to Goods resulting from improper or insufficient packing, boxing, crating, wear or tear or inherent qualities of the Goods. In the case of Goods lost or misplaced, Warehouseman shall be allowed thirty (30) days in which to locate such Goods, after receipt of written notices, before being liable for non-delivery.

12. INDEPENDENT CONTRACTOR

This Agreement is not and shall not be construed as an agreement of joint venture, partnership, agency, franchise, or employment between the Parties or their respective employees. Each Party has sole authority and responsibility to employ, discharge, discipline, and otherwise control and direct its employees, and neither the Owner nor Warehouseman, nor any of its or their employees, are or shall be deemed to be employees of the other. The Owner and Warehouseman agree to comply with all laws, rules, rulings, regulations, standards and ordinances applicable to them as such employers. The Owner and Warehouseman acknowledge and agree that each is an independent contractor whose operations are independent, separate, and apart from those of the other.

13. APPLICABLE LAWS13.1.

Owner and Warehouseman agree to personal jurisdiction and exclusive venue in the United States District Court for the Eastern Division of the District of New Jersey or, if federal jurisdiction is not available, in state court located in East Brunswick, New Jersey.

14. INTERPRETATION14.1.

In the event that there is a conflict between the terms and conditions herein contained and any other warehouse receipt or documents, whether issued by the Owner, the Warehouseman or any other party, the terms and conditions hereof shall prevail.

15. GENERAL PROVISIONS15.1.

If any provision of these standard terms and conditions, or any application thereof, should be construed or held to be invalid or unenforceable, the remaining provisions shall not be affected thereby but shall remain in full force and effect.

15.2.

Warehouseman’s failure to require strict compliance with any provision of these standard terms and conditions shall not constitute a waiver to later demand strict compliance with that or any other provisions of these standard terms and conditions.

15.3.

These provisions shall be binding upon the Owner and its successors, legal representatives and permitted assigns, provided the Owner may not assign its rights and obligations under these standard terms and conditions without the prior written consent of the Warehouseman.

15.4.

Neither Party may assign its rights or delegate or subcontract its duties and obligations under this Agreement to any other person or entity without the prior written consent of the other; provided, however, that either Party may assign the Agreement to an affiliate or a successor-in-interest upon notice to the other party but without that Party’s consent.

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Canada

CDN STANDARD TERMS AND CONDITIONS FOR WAREHOUSING OF SKYFER LOGISTICS INC.

1. DEFINITIONS1.1.

“Goods” or “Stored Goods”: shall mean the goods delivered to the Warehouseman for storage and/or cross-docking, unloading, breakdown, repacking, reloading and forwarding

1.2.

“Owner”: shall mean the owner of the Stored Goods as well as its agent and authorized representatives and shall include the holder of a negotiable receipt, any party with a security interest in the Stored Goods and the party delivering the Stored Goods to the Warehouseman.

1.3.

“Warehouseman”: shall mean Skyfer Logistics inc.as well as its parents, affiliates, subsidiaries, agents, employees, authorized representatives, successors and assigns.

2. AGREEMENT

Subject to the legislation in force governing warehousing in the province where the goods are stored, the terms and conditions hereinafter set out, when delivered or mailed (by electronic means or mail) to the Owner of the Goods, at his address last known to the Warehouseman shall constitute the agreement between the Owner and the Warehouseman provided that the Owner may, within ten (10) days after such delivery or mailing, notify the Warehouseman in writing that he does not accept the agreement and forthwith thereafter shall pay the Warehouseman’s lien or right of retention for charges and remove the Goods. If such notice is not given, then this agreement shall govern all Stored Goods.

3. WAREHOUSEMAN’S LIEN AND RIGHT OF RETENTION

Subject to the legislation in force governing warehouseman’s lien or right of retention in the province where the Stored Goods received are stored, the Warehouseman shall have a warehouseman’s lien or right of retention upon the Stored Goods from the delivery of the goods to the warehouse and until all expenses, fees, charges, costs, liabilities and all other payments and expenses made or incurred by the Warehouseman towards said Stored Goods have been paid or reimbursed to the Warehouseman in full.

4. CHARGES4.1.

All Goods are stored on a month-to-month basis, unless otherwise provided. The rates of storage, as provided in the Warehouseman’s Quotation are per calendar month

4.2.

The class of storage in which the Goods are to be stored, the amount or amounts owed hereon for disbursements or services rendered by the Warehouseman prior to receiving cargo and the rate per month per unit to be charged for storage of such Goods are set out in the Quotation provided to the Owner; said Quotation being expressly accepted prior to the commencement of the work.

4.3.

Basic handling rates described in the Quotation are not covering the following items: marking, labelling, sampling, palletizing, repairs, measuring, weighing, inspection, physical inventory tracking, which shall be invoiced by the Warehouseman in addition to such basic handling rates.

4.4.

Charges for additional services required by the Owner or necessitated by the nature of the Stored Goods together with handling charges upon delivery of the Goods out of storage, will be invoiced by the Warehouseman in addition to the monthly storage charge prescribed by the Quotation provided to the Owner

4.5.

Any charge made with respect to the Stored Goods shall conform to the Warehouseman’s rates in effect at the time the service is performed. Quotations for services not included in such rates will be given on request. No increase in regularly recurring charges will be made on Goods in storage until thirty (30) days after a notice of such increased charge has been mailed to the Owner of the Stored Goods, unless otherwise agreed by the Owner.

5. DELIVERY AND TRANSFER REQUIREMENTS5.1.

No Stored Goods shall be delivered or transferred unless the Warehouseman has received, under an acceptable form, written instruction signed by the Owner at least twenty-four (24) hours before the loading and/or the partial or total delivery of the Stored Goods.

5.2.

If the loading and/or the delivery is made in any other way than the one set out in Subsection 5.1 above, then, notwithstanding acceptance of such instructions by the Warehouseman or its employees, delivery of such Stored Goods shall be wholly at the risk of the Owner and the Warehouseman shall not be held responsible for loss from error in the giving or receiving of such instructions.

5.3.

Unless all unpaid charges incurred with respect to the Stored Goods to be delivered or transferred are paid in full or assumed by the transferee, delivery or transfer thereof may be refused.

5.4.

In accordance with Section 3 above, the Warehouseman has a lien and/or a right of retention for all lawful charges for storage, cross-docking, breakdown, repacking, reloading, forwarding and preservation of the Stored Goods as well as for all lawful claims for money advanced, interest, insurance, transportation, labour, weighing, cleaning of damaged Stored Goods and other charges and expenses in relation to such Stored Goods.

6. ACCESS AND INSPECTION6.1.

The Owner of the Stored Goods or any person upon the written authority of the Owner may, subject to insurance regulations or other reasonable limitations imposed by the Warehouseman, have access to the Stored Goods for inspection thereof when and only when accompanied by a representative of the Warehouseman for that purpose, whose time shall be charged according to the Warehouseman’s rates in force at the time of such access.

6.2.

If a checker is not furnished by the Owner or its carrier, the Warehouseman’s load or unload count shall be conclusively deemed to be correct and accepted by the Owner.

7. REMOVAL OF GOODS7.1.

The Warehouseman may, upon written notice to the Owner of the Stored Goods and to any other person known by the Warehouseman to claim an interest in the Stored Goods, require the removal of the Stored Goods by the end of the next proceeding storage month. Such notice shall be given by delivery in person or by registered letter addressed to the last known place of business of the party to be notified.

7.2.

Where Stored Goods are of a perishable nature or by keeping will deteriorate greatly in value or cause damage to other stored goods or the Warehouseman’s property or employees, the Warehouseman may give a notice to the Owner requiring him to satisfy all outstanding charges in connection with the Stored Goods and to remove them from the warehouse; should such person fail to remove the Goods within the period specified in the notice, the Warehouseman may sell the Stored Goods at public or private sale without advertising, and otherwise act with respect thereto and keep any proceeds of sale thereof as may be permitted or provided by the laws of the province where the Goods are stored, and in such case, the Owner shall be liable to the Warehouseman for any balance of charges accrued and unsatisfied on such Stored Goods.

7.3.

Where in the opinion of the Warehouseman, the nature or condition of the Stored Goods creates a condition hazardous to the safekeeping and storage of other commodities in the warehouse or to any property or person, the Warehouseman may forthwith remove such Stored Goods from the warehouse and shall thereupon give notice to the Owner of such removal and the location thereof, as may be permitted or required by the laws of the province where the goods are stored. In such case the Owner shall be liable for all storage and other charges of the changed location and any and all liability on the party of the Warehouseman for the safekeeping of such Goods shall cease.

8. LIABILITY OF WAREHOUSEMAN8.1.

All Goods stored with the Warehouseman shall be at Owner’s risks. The Warehouseman shall not be liable for any loss or damage or deterioration to the Stored Goods whether through its negligence or for any other cause whatsoever

8.2.

The quality, condition, contents and value of the Stored Goods are not known to the Warehouseman except as declared on the packing list by the Owner. The Warehouseman shall have no responsibility for errors resulting from the corruption of electronically transmitted data, or from verbal or telephoned shipping instructions, unless written confirmation of such instructions is received not less than twenty-four (24) hours prior to the shipment of the Goods, as provided in Subsection 5.1 above.

8.3.

Storage rates do not include insurance. Goods stored are not insured by the Warehouseman and the charges do not include insurance unless specified in writing and signed by the Warehouseman. Accordingly, it is the sole responsibility of the Owner to insure the Stored Goods are insured.

8.4.

Without limiting the generality of Subsections 8.1 to 8.3 above, it is specifically declared and agreed that:

(i) the Warehouseman shall in no circumstances be liable for loss or damage or deterioration to the Stored Goods, or delay in the delivery, resulting from any of the following perils or circumstances: inaccuracies, obliteration or absences of marks, numbers, address or description, fire or explosion from any cause, flood, wind, storm, earthquake or other acts of God, irresistible force, war, insurrection, riot, civil or military authority, strikes, picketing or any other labour trouble, shrinkage in weight, loss in quality or due to the inherent or perishable nature of the Stored Goods, insufficient boxing, crating or packaging, for wear and tear or any cause beyond the control of the Warehouseman. No responsibility will be assumed for loss of or damages to Stored Goods by leakage or failure to detect the same or for concealed damage, or for loss or damage caused by breakage, theft, mice, vermin, sprinkler leakage, steam, frost, heating or corruption, rust, decay or water or other damages resulting from defects in the structure of the warehouse, including the water system, sewer, drainage, electricity, theft or vandalism at the warehouse, or for damages resulting from the usage of the warehouse space;

(ii) the Warehouseman shall in no circumstances be liable for any direct or indirect loss, consequential damages, special damages or loss of profit as a result of the non-delivery or delay in delivery of the Stored Goods or re-routing of any shipping of the Stored Goods, for any reason whatsoever.

(iii) all the Warehouseman’s charges incurred with respect to Goods lost or damaged as a result of any such peril, including without limitation the costs of removing and disposing of such Goods and the costs of any environmental cleanup and site remediation, shall constitute a charge on the remaining Stored Goods and against the Owner.

8.5.

Without limiting the generality of the foregoing, in any event, the liability of the Warehouseman arising from legal liability, if any, shall be limited to the declared value of the Stored Goods or the minimum cost value of the loss or damage to the Stored Goods, whichever is the lesser, but in no case shall the liability exceed fifty dollars ($50.00) per pallet. If during storage, the value per pallet of the Stored Goods shall change and the Owner of the Goods so declared in writing to the Warehouseman, a revision of the storage rates in accordance with such new value may be made.

8.6.

The Warehouseman shall not be responsible, in any case or under any circumstances, whether negligent or not, for any loss or damage to Stored Goods unless and until written notice of such loss or damage, together with full detailed particulars thereof, is given to the Warehouseman within thirty-six (36) hours after the Owner of the Stored Goods becomes aware of such loss or damage or takes delivery of the Stored Goods or any portion thereof, whichever event may first happen.

8.7.

Where Stored Goods are in Canada Customs Bond, the Warehouseman shall not be liable or responsible for any seizure of such Stored Goods by the Government of Canada or any agency or officer thereof, for any reason whatsoever.

8.8.

When errors in the shipment of the Goods occur, the liability of the Warehouseman shall be strictly limited to the transportation costs to be incurred to rectify any such error, and shall not, under any circumstances, include liability for damages due to the acceptance or use of said Goods.

8.9.

The Warehouseman shall not be responsible for delays in loading or unloading railway cars, trailers or other containers, nor for demurrage charges or other time penalties arising from any delay which cannot be reasonably avoided by the Warehouseman in the normal course of its business.

9. INDEMNITY

Without prejudice to any of the foregoing terms and conditions, the Owner shall indemnify and save harmless the Warehouseman from and against all costs, demands, liabilities, responsibilities and causes of action (including reasonable attorney’s fees and disbursements) arising out of or in connection with either, directly or indirectly, the Stored Goods, any other goods of the Owner or instructions of the Owner, including, without limitation, any dispute or litigation, whether instituted by Warehouseman or others, respecting Owner’s right, title or interest in the Goods. Such amounts shall be charged to the Owner in relation to the Goods and subject to Warehouseman’s lien or right of retention.

10. APPLICABLE LAWS

This and all agreements related hereto between the Warehouseman and the Owner shall be governed by the laws and regulations applicable in the Province where the Goods received are stored.

11. INTERPRETATION

In the event that there is a conflict between the terms and conditions herein contained and any other warehouse receipt or documents, whether issued by the Owner, the Warehouseman or any other party, the terms and conditions hereof shall prevail.

12. GENERAL PROVISIONS12.1.

If any provision of these standard terms and conditions, or any application thereof, should be construed or held to be invalid or unenforceable, the remaining provisions shall not be affected thereby but shall remain in full force and effect.

12.2.

Warehouseman’s failure to require strict compliance with any provision of these standard terms and conditions shall not constitute a waiver to later demand strict compliance with that or any other provisions of these standard terms and conditions.

12.3.

These provisions shall be binding upon the Owner and its successors, legal representatives and permitted assigns, provided the Owner may not assign its rights and obligations under these standard terms and conditions without the prior written consent of the Warehouseman.

13. ENFORCEMENT OF THE PRESENT AGREEMENT

Upon delivery of this warehousing agreement and acceptance of the rates and conditions disclosed in the quotation, the terms and conditions contained herein will become automatically in force.

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Customs Terms & Conditions

USA

Terms & Conditions of Service of Skyfer Logistics inc*

These terms and conditions constitute a contract between the “Company” and the “Customer.”  In the event Company renders services and issues a document containing terms and conditions governing such services, the terms and conditions set forth in that document shall govern those services to the extent it conflicts with this document.

 

1. Definitions.
   (a) “Company” shall mean Skyfer Logistics inc, its subsidiaries, related companies, agents and/or representatives;
   (b) “Customer” shall mean the person for which Company is rendering service, as well as its principals, agents and/or representatives, including, but not limited to, shippers, importers, exporters, carriers, secured parties, warehousemen, buyers and/or sellers, shipper’s agents, insurers and underwriters, break-bulk agents, consignees, etc. It is the responsibility of Customer to provide notice and copy(s) of these terms and conditions of service to all such agents or representatives;
   (c) “Documentation” shall mean all information received directly or indirectly from Customer, whether in paper or electronic form;
   (d) “Ocean Transportation Intermediaries” (“OTI”) shall include an “ocean freight forwarder” and a “non-vessel operating carrier”;
   (e) “Third parties” shall include, but not be limited to, the following: carriers, truckmen, cartmen, lightermen, forwarders, OTIs, customs brokers, agents, warehousemen and others to which the goods are entrusted for transportation, cartage, handling and/or delivery, storage or otherwise.
2. Company as Agent. Company acts as the “agent” of Customer for the purpose of performing duties in connection with the entry and release of goods, post entry services, the securing of export licenses, the filing of export and security documentation on behalf of Customer and other dealings with government agencies, or for arranging for transportation services or other logistics services in any capacity other than as a carrier.
3. Limitation of Actions.
   (a) Unless subject to a specific statute or international convention, all claims against Company for a potential or actual loss must be made in writing and received by Company within 90 days of the event giving rise to claim.
   (b) All suits against Company must be filed and properly served on Company as follows: (i) for claims arising out of ocean transportation, within one year from the date of the loss; (ii) for claims arising out of air transportation, within two years from the date of the loss; (iii) for claims arising out of the preparation and/or submission of an import entry(s), within 90 days from the date of liquidation of the entry(s); (iv) for any and all other claims of any other type, within one year from the date of the loss or damage.
   (c) The failure to follow (a) and/or (b) shall be a complete defense to any suit or action commenced by Customer.
4. No Liability for the Selection or Services of Third Parties and/or Routes. Unless services are performed by persons or firms engaged pursuant to express written instructions from Customer, Company shall use reasonable care in its selection of third parties, or in selecting the means, route and procedure to be followed in the handling, transportation, clearance and delivery of the shipment.  Advice by Company regarding a particular person or entity selected to render services with respect to the goods shall not be construed to mean that Company warrants or represents that such person or entity will properly render such services, nor does Company assume responsibility or liability for any actions(s) and/or inaction(s) of such person or entity, including its agents.  Company shall not be liable for any delay or loss of any kind, which occurs while a shipment is in the custody or control of a third party or the agent of a third party.  All claims in connection with the action(s) or inaction(s) of a third party shall be brought solely against such party and/or its agents.  In connection with any such claim, Company shall reasonably cooperate with Customer, which shall be liable for any charges or costs incurred by Company.
5. Quotations not Binding. Quotations as to fees, rates of duty, freight charges, insurance premiums or other charges given by Company to Customer are for informational purposes only and are subject to change without notice.  No quotation shall be binding upon Company unless Company in writing agrees to undertake the handling or transportation of the shipment at a specific rate or amount set forth in the quotation and payment arrangements are agreed to between Company and Customer.
6. Reliance on Information Furnished. 
   (a) Customer acknowledges that it is required to review all documents and declarations prepared for and/or filed with U.S. Customs & Border Protection, other government agencies or third parties, and will immediately advise Company of any errors, discrepancies, incorrect statements or omissions on any declaration or other submission filed on Customer’s behalf;
   (b) In preparing and submitting customs entries, export declarations, applications, security filings, documentation and/or other required data, Company relies on the correctness of all documentation and information, whether in written, electronic or oral format, furnished by Customer.  Customer shall use reasonable care to ensure the correctness of all such information and shall indemnify and hold Company harmless from any and all claims asserted and/or liability or losses suffered by reason of Customer’s failure to disclose information or any incorrect, incomplete or false statement by Customer or its agent, representative or contractor upon which Company relied. Customer agrees that it has an affirmative non-delegable duty to disclose any and all information required to import, export or enter the goods. 
   (c) Customer acknowledges that it is required to provide verified weights obtained on calibrated, certified equipment of all cargo that is to be tendered to steamship lines and represents that Company is entitled to rely on the accuracy of such weights when providing the certified weight to the steamship lines. Customer agrees that it shall indemnify and hold Company harmless from any and all claims, losses, penalties or other costs resulting from any incorrect statements of the weight provided by Customer or its agent or contractor on which Company relies. 
7. Declaring Higher Value to Third Parties. Third parties to whom the goods are entrusted may limit liability for loss or damage. The Company will request excess valuation coverage only upon specific written instructions from Customer, which must agree to pay any charges therefor.  In the absence of written instructions or the refusal of the third party to agree to a higher declared value, at Company’s sole discretion, the goods may be tendered to the third party, subject to the terms of the third party’s limitations of liability and/or terms and conditions of service.
8. Insurance. Unless requested to do so in writing and confirmed to Customer in writing, Company is under no obligation to procure insurance on Customer’s behalf; in all cases, Customer shall pay all premiums and costs in connection with procuring requested insurance.
9. Disclaimers; Limitation of Liability. 
   (a) Except as specifically set forth herein, Company makes no express or implied warranties in connection with its services.
   (b) In connection with all services performed by Company, Customer may obtain additional liability coverage, up to the actual or declared value of the shipment or transaction, by requesting such coverage and agreeing to make payment therefor, which request must be confirmed in writing by the Company prior to rendering services for the covered transaction(s).
   (c) In the absence of additional coverage under (b) above, Company’s liability shall be limited to the following:  (i) where the claim arises from activities other than those relating to customs business, $50 per shipment or transaction, or (ii) where the claim arises from activities relating to customs business, $50 per entry or the amount of brokerage fees paid to Company for the entry, whichever is less.
   (d) In no event shall Company be liable or responsible for consequential, indirect, incidental, statutory or punitive damages, even if it has been put on notice of the possibility of such damages, or for the acts of third parties.
10. Advancing Money. All charges must be paid by Customer in advance unless Company agrees in writing to extend credit to Customer.  The granting of credit to Customer in connection with a particular transaction shall not be considered a waiver of this provision by Company with respect to another transaction.
11. Indemnification/Hold Harmless. Customer agrees to indemnify, defend and hold Company harmless from any claim, suit, proceeding, liability, fine, penalty and expense (including attorneys’ fees and costs) arising from the importation or exportation of Customer’s merchandise or any conduct of Customer, including, but not limited to, the inaccuracy of entry, export or security information supplied by Customer or its agent.  In the event that any claim, suit or proceeding is brought against Company, it shall give notice in writing to Customer by mail at its address on file with Company.
12. C.O.D. or Cash Collect Shipments. Company shall use reasonable care regarding written instructions relating to “Cash/Collect on Delivery (C.O.D.)” shipments, bank drafts, cashier’s and/or certified checks, letter(s) of credit and other similar payment documents; however, Company shall not be liable if the intended payor refuses to pay for the shipment.
13. Costs of Collection. In any dispute involving money owed to Company, Company shall be entitled to all costs of collection, including reasonable attorneys’ fees and interest at the lesser of 15% per annum or the highest rate allowed by law, unless a lower amount is agreed to by Company.
14. General Lien and Right to Sell Customer’s Property. 
    (a) Company shall have a continuing lien on any and all property and documents relating thereto of Customer coming into or en route to Company’s actual or constructive possession, custody or control, which lien shall survive delivery, for all charges, expenses or advances owed to Company with regard to the shipment on which the lien is claimed and any prior shipments. Customs duties, transportation charges, and related payments advanced by Company shall be deemed paid in trust on behalf of Customer and treated as pass through payments made on behalf of Customer for which Company is acting as a mere conduit.
    (b) Company shall provide written notice to Customer of its intent to exercise its lien, the exact amount of money due and owing and any on-going storage or other charges.  Customer shall notify all parties having an interest in its shipment(s) of Company’s lien.
    (c) Unless, within thirty days of receiving notice of lien, Customer posts cash or letter of credit at sight, or, if the amount due is in dispute, posts an acceptable bond equal to 110% of the total amount due, in favor of Company, guaranteeing payment of the money owed, plus all storage charges accrued or to be accrued, Company shall have the right to sell such property at public or private sale or auction, refunding to Customer any net proceeds after satisfaction of all expenses pertaining to the sale and all amounts owed Company.
15. No Duty to Maintain Records For Customer. Customer acknowledges that pursuant to Sections 508 and 509 of the Tariff Act, as amended, it has the duty and is solely liable for maintaining all records required under the customs and other laws and regulations of the United States.  Unless otherwise agreed in writing, Company shall only keep such records that it is required to maintain by law, not act as a “record keeper” or “recordkeeping agent” for Customer.
16. Obtaining Binding Rulings, Filing Protests, etc. Unless requested and agreed to by Company in writing, Company shall be under no obligation to undertake any pre- or post-customs release action, including, but not limited to, obtaining binding rulings, advising of liquidations, filing petitions or protests.
17. No Duty to Provide Licensing Authority. Unless requested by Customer in writing and agreed to by the Company in writing, Company shall not be responsible for determining licensing authority or obtaining any license or other authority pertaining to the export from or import into the United States.
18. Preparation and Issuance of Bills of Lading. Where Company prepares or issues a bill of lading, Company shall be under no obligation to specify thereon the number of pieces, packages and/or cartons, etc. Unless otherwise agreed in writing by Company, Company may rely upon and use the cargo weight supplied by Customer.
19. No Modification or Amendment Unless Written. These terms and conditions may only be modified, altered or amended in writing signed by both Customer and Company.
20. Compensation of Company. The compensation of 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 Company to transport and deal with the goods, and such compensation shall be exclusive of any brokerage, commissions, dividends or other revenue received by Company from carriers, insurers and others in connection with the shipment. On ocean exports, upon request, the Company shall provide a detailed breakdown of the components of all charges assessed and a copy of each pertinent document relating to those charges. In any referral for collection or action against Customer for money due to Company, upon recovery by Company, Customer shall pay the expenses of collection and/or litigation, including reasonable attorneys’ fees.
21. Force Majeure. Company shall not be liable for losses, damages, delays, wrongful or missed deliveries or non-performance, in whole or in part, resulting from circumstances beyond the control of either Company or its sub-contractors, including, but not limited to: (i) acts of God such as flood, earthquake, storm, hurricane, power failure or other natural disaster; (ii) war, hijacking, robbery, theft or terrorist activities; (iii) incidents or deteriorations to means of transportation; (iv) embargoes; (v) civil commotions or riots; (vi) defects, nature or inherent vice of the goods; (vii) acts, breaches of contract or omissions by Customer or anyone else who may have an interest in the shipment; (viii) acts by any government or any agency or subdivision thereof, including denial or cancellation of any import/export or other necessary license; or (ix) strikes, lockouts or other labor conflicts.
22. Severability. In the event any portion hereof is found to be invalid or unenforceable, the remainder shall remain in full force and effect.  Company’s decision to waive any provision herein, either by conduct or otherwise, shall not be deemed to be a further or continuing waiver of such provision or to otherwise waive or invalidate any other provision herein.
23. Governing Law, Consent to Jurisdiction and Venue. These terms and conditions of service and the relationship of the parties shall be construed according to the laws of Illinois without giving consideration to principles of conflict of law.  Customer and Company consent to the jurisdiction of the United States District Court for the Eastern Division of the District of New Jersey or, if federal jurisdiction is not available, in state court located in East Brunswick, New Jersey.

(*)These terms and conditions are adapted and substantially the same as those approved by the National Customs Brokers and Forwarders Association of America, Inc. (Revised 6/16)

Canada

CANADIAN SOCIETY OF CUSTOMS BROKERS (09-2016)
STANDARD TRADING CONDITIONS

These Standard Trading Conditions, as set forth herein, govern the business practices of members of the Canadian Society of Customs Brokers. By signing the Agency Agreement and Power of Attorney, Client and Customs Broker agree to be bound by these Standard Trading Conditions.
 

1. Definitions
   • “Agency Agreement and Power of Attorney” means the Canadian Society of Customs Brokers Continuous General Agency Agreement and Power of Attorney with Power to Appoint a Sub-Agent respectively, signed by Client to appoint Customs Broker as its agent and attorney in connection with the services described therein.
   • “Applicable Laws” has the meaning set out in Section 6(a).
   • “Canadian Government Agencies and Departments” or “CGAD” means the Canada Border Services Agency, any other department or agency, and successor department or agency thereof, of the Government of Canada or any Province thereof having jurisdiction over the import and export of goods into and from Canada.
   • “Client” means that individual, partnership, association, entity or corporation at whose request or on whose behalf, either directly or indirectly, the Customs Broker undertakes any business or provides advice, information or services, and who is named as the Client in the Agency Agreement and Power of Attorney.
   • “Customs Broker” means that individual, partnership, entity or corporation licensed by the Canada Border Services Agency, or other authorized body, to engage in the business of a customs broker and who is named as the Customs Broker in the Agency Agreement and Power of Attorney.
   • “Disbursements” means any payment made by the Customs Broker, on behalf of the Client, for any product or service rendered in connection with the facilitation of the import and export of goods, including but not limited to Government Charges, and any additional taxes, freight, storage, penalties, interest, payments for goods on COD shipments, fines and any other amounts, charges or payments.
   • “Disbursement Fees” means those fees charged by the Customs Broker to the Client in connection with arranging, making and/or managing Disbursements.
   • “Fees” has the meaning set out in Section 2, and includes, without limitation, Disbursement Fees.
   • “Government Charges” means those duties, taxes, penalties, interest, fines or other charges or amounts charged or levied by CGAD or other applicable governmental authority on imported or exported goods including, without limitation, goods imported into Canada, exported from Canada or reported or released or to be reported or released under the Customs Act, the Customs Tariff, the Excise Act, the Excise Tax Act, the Special Import Measures Act and/or any other Applicable Laws relating to customs, import and/or export.
   • “Losses” means losses, damages, delays, costs, injuries, fees (including without limitation legal fees and expenses), liabilities, expenses, actions, suits, proceedings, demands and claims of any kind or nature whatsoever.
   • “Services” means those customs broker services described in Annex 1 which are required by the Client and agreed to be provided by the Customs Broker.
   • “Sub-Agent” means that person to whom a license to transact business as a customs broker has been issued under the Customs Act and who the Customs Broker may retain as its own agent in connection with the Services, or part thereof, that the Customs Broker performs for the Client.
2. Fees and Disbursements  
   The fees for Services shall be in accordance with the fee schedule as agreed upon between the Client and the Customs Broker, as amended from time to time (the “Fees”).

1. 1. Disbursements incurred by the Customs Broker on behalf of the Client shall be reimbursed to the Customs Broker by the Client. 
2. Invoicing and Payment  
   The Customs Broker shall issue invoices to the Client for all Fees pertaining to the Services.
   1. Promptly upon receipt of invoices hereunder, the Client shall pay to the Customs Broker, in cash or by other immediately available and irrevocable funds delivered as agreed to by the Customs Broker, as and when due in accordance herewith, all Fees for the Services without any reduction, deduction, set-off or deferment on account of any claim or counterclaim whatsoever.
   2. Interest on all late payments shall be charged and paid at a rate equal to the prime lending rate set by the Bank of Canada plus 5% per annum, as it fluctuates from time to time, which interest shall be calculated and charged commencing 14 days after the relevant invoice date unless otherwise agreed to in writing by the parties.
   3. To the extent the Customs Broker owes any amounts to the Client, the Customs Broker may set-off that amount owing to the Client as against any amount the Client owes the Customs Broker.
3. Advancement of Funds
   1. Upon request by the Customs Broker, the Client shall, prior to the Customs Broker’s release of any shipment of goods imported by the Client, promptly provide to the Customs Broker sufficient funds to enable the Customs Broker to pay on behalf of the Client all Disbursements that are estimated by the Customs Broker to be payable in connection with such shipment.
   2. If, at any time, the Customs Broker or CGAD determines that additional funds are required with respect to goods imported by the Client, the Client shall upon demand of either the Customs Broker or CGAD promptly advance such additional funds to the Customs Broker.
   3. If, after payment of Disbursements by the Customs Broker concerning the goods imported by the Client, any balance of funds remains outstanding to the credit of the Client, the Customs Broker shall promptly return to the Client any remaining balance of funds,
      1. unless otherwise instructed by the Client; or
      2. unless there are past due amounts owing by the Client to the Customs Broker in which case the Customs Broker may, on notice to the Client, pay its outstanding Fees and/or Disbursements (or part thereof) from the said remaining balance of funds.  
   4. If the Client fails to advance funds to the Customs Broker when requested by the Customs Broker or CGAD, the Customs Broker shall have no obligation to render or perform any Services for or on behalf of the Client, and the Client shall be responsible, and agrees to reimburse, defend, indemnify and hold harmless the Customs Broker, for all Losses in connection therewith.
4. Duties and Responsibilities of the Client 
   1. The Client shall:
      1. promptly provide to the Customs Broker all information necessary for the Customs Broker to provide the Services including, without limitation, all information required to complete CGAD’s documentation and/or furnish required data to CGAD or other applicable governmental authorities;
      2. promptly review all documentation and/or data and notify the Customs Broker of any inaccuracies, errors or omissions found therein; and
      3. reimburse, defend, indemnify and save harmless the Customs Broker with respect to each matter set out in Section 5(c) and against any and all Losses which result from or arise in connection with inaccuracies, mistakes or omissions in the information and documentation provided to the Customs Broker by the Client or its employees, representatives and/or agents and relied upon by the Customs Broker and/or its own Sub-Agents.  

• • The Client warrants that (i) it is the importer, exporter and/or owner of the goods (as applicable) for which it has retained the Services of the Customs Broker; (ii) it has full power and authority to retain and appoint as agent and attorney and authorize and instruct the Customs Broker including, without limitation, as set out in the Agency Agreement and Power of Attorney; and (iii) all information provided to the Customs Broker is complete, true and accurate.  The Client acknowledges that the Customs Broker is relying on such information to provide the Services.

• •  The Client is solely liable and responsible for each and all of:
    1. Disbursements made by the Customs Broker on behalf of the Client;
    2. Government Charges; and
    3. Losses incurred or sustained by the Customs Broker in relation to the provision of Services to the Client.
• Duties and Responsibilities of the Customs Broker

1. 1. The Customs Broker shall at all times provide Services in a timely and professional manner in accordance with the generally accepted standards of the Canadian customs brokerage industry and in compliance with all applicable laws and regulations of Canada and any applicable Province, Territory and municipality thereof (“Applicable Laws”). 
   2. All information pertaining to the Client is, and shall be kept, confidential by the Customs Broker, its Sub-Agents and service providers, if applicable, and shall only be released to CGAD or other applicable government, police or official investigation authorities, if and as (i) required by Applicable Laws or order of a body, agency or court of competent jurisdiction and authority; and/or (ii) directed or authorized by written instructions from the Client to the Customs Broker to release confidential information, or any part thereof, to third parties.
   3. The Customs Broker shall take all reasonable steps to provide the Services in accordance with the instructions from the Client, provided however, that if in the Customs Broker’s judgment, it is in the Client’s interest to depart from the Client’s instructions, the Customs Broker is hereby instructed and directed to do so and shall be reimbursed, defended, indemnified and saved harmless by the Client for all Losses incurred in so doing.
   4. The Customs Broker shall provide to the Client in respect of each transaction or summary accounting made on the Client’s behalf a copy of the accounting documents and data pertaining thereto.
   5. The Customs Broker shall promptly account to the Client for funds received by the Customs Broker to the extent that these funds are:
      1. for the credit of the Client from the Receiver General for Canada or other applicable government authorities; or
      2. from the Client by way of advances provided in Section 4 in excess of the Disbursements payable in respect of the Client or the Client’s business.
   6. The Customs Broker shall not be liable for any Losses resulting from or caused in any part by (i) the Customs Broker’s negligence, misconduct or breach or for anything which it may do or refrain from doing; (ii) any act of God, unavoidable delay or event, or other act or cause beyond the reasonable control of the Customs Broker; or (iii) the Customs Broker’s failure to provide the Services as a result of or due to the operation of the Applicable Laws, or the applicable laws of any other country that affects the Services, or a change in the policies of CGAD or other applicable governmental authorities.
   7. The Customs Broker shall use its commercially reasonable efforts, in accordance with industry standards, to advise the Client on matters referred to the Customs Broker. The Client (i) acknowledges that the Customs Broker has given no assurances, representations or warranties to the Client regarding the outcome of these matters, and (ii) understands that there is no guarantee of any specific results from the Services.
2. Limitation of Liability  
   Neither the Customs Broker nor the Client will be liable for any consequential, special, incidental, indirect, punitive or exemplary damages resulting from these Standard Trading Conditions, the Agency Agreement and Power of Attorney, any act of God, ‘force majeure’ or unavoidable delay, or event beyond the reasonable control of the affected party. In addition, the Customs Broker shall not be liable for any loss of profit, loss of revenue, loss of use or other like damages or losses, or damages arising in tort, whether or not known or contemplated, in connection with the Services, these Standard Trading Conditions and/or the Agency Agreement and Power of Attorney. 
3. Termination  
   In the event that the Agency Agreement and Power of Attorney is terminated and there are any outstanding matters pertaining to the Client for which the Customs Broker has been engaged by the Client and for which the Customs Broker remains liable to make payment, these Standard Trading Conditions, the Agency Agreement and Power of Attorney shall continue in force with respect to such matters until such matters are concluded and payment by the Client to the Customs Broker of such funds as may be required to satisfy all outstanding payment obligations and liabilities of the (a) Customs Broker to CGAD and/or others and (b) Client to Customs Broker, CGAD and/or others (including all Fees and Disbursements), has been made by the Client.
4. Governing Law 
    These Standard Trading Conditions are governed by the laws of the   Province or Territory in Canada within which the Customs Broker has its principal place of business, and the federal laws of Canada applicable therein, and the Client hereby irrevocably attorns to the courts of such Province or Territory. The Agency Agreement and Power of Attorney, together with these Standard Trading Conditions, inure to the benefit of and are binding upon the parties and their respective executors, administrators, successors and assigns.
    
   The parties agree that where they have used electronic communications in whole or in part to transact any business, those communications will be given legal effect in accordance with the provisions of the Uniform Electronic Commerce Act (or successor legislation) as approved by the Uniform Law Conference of Canada or enacted by the federal or provincial legislatures, as applicable.
5. Severability 
    Each provision of these Standard Trading Conditions is and shall be deemed to be separate and severable and if any provision or part thereof is held for any reason to be unenforceable, the remainder of these Standard Trading Conditions shall remain in full force and effect.

Annex 1
Customs Broker Services
The Customs Broker will provide to the Client import and export services, and ancillary services related thereto, when requested by the Client and accepted by the Customs Broker.  These may include, as selected by the Client:
 

1. assisting the Client in the preparation of information required by CGAD with respect to trade-related matters including, without limitation, the importation of goods into Canada by the Client or the exportation of goods from Canada by the Client;
2. presenting information, by any acceptable means, on behalf of the Client to CGAD required to report, release and/or account for the Client’s goods including information as may be required for in-bond transportation within Canada;
3. arranging for, managing, making and/or paying any requisite Government Charges and/or Disbursements by or on behalf of the Client and obtaining release of goods from CGAD;
4. making arrangements for delivery of the goods;
5. assisting the Client in preparing and presenting information required by domestic and foreign jurisdictions including, without limitation, CGAD and other applicable government authorities with respect to trade-related matters and/or goods imported into or exported from Canada by the Client;
6. providing information and advice concerning the relevant laws and regulations pertaining to trade-related matters and/or the import into Canada and the export from Canada of the Client’s goods;
7. providing advice on tariff classification, value for duty, origin and any other relevant federal or provincial customs requirements;
8. providing advice on federal and provincial tax implications, payment options and any other tax requirements concerning the Client’s imported goods;
9. providing advice concerning Government Charges, refunds, drawbacks, and remissions, as well as appeals of tariff classification or value for duty decisions of CGAD;
10. preparing and filing refunds, appeals, drawbacks and remission applications; 
11. providing consulting, advice, information and assistance to the Client on matters pertaining to the seizure, detention, and forfeiture of goods; and 
12. providing consulting, advice, information and assistance on all other matters necessary and incidental to the foregoing Services.

 
In each case, all the foregoing at and subject to the instructions of and on behalf of the Client.

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