1. ROLE OF FORWARDER ("the COMPANY") AND OF THE SHIPPER, CONSIGNEE, OWNER OF THE GOODS, ETC (the “CUSTOMER”)
The Company offers its services based on these Terms and Conditions (the “Terms”) that apply to all activities of Cargocan Agency Limited (the “Company”) in arranging transportation or providing related services, such as, but not limited to, warehousing and any other kind of logistics services including cold storage, broking, air freight broking, freight management, ocean freight broking, road transportation broking. The Company may provide its services as either principal or agent. The Company acts as agent of the Customer, except
a. where it issues a transport document or electronic record evidencing its obligation for the delivery of goods, or
b. to the extent it physically handles goods by its own employees and equipment in the course of performing any service, in which cases it acts as principal, but whether acting as principal or as agent these conditions govern the rights and liabilities of the Customer and the Company.
When determining any rights or liabilities of the Company under these Terms, the word “Customer” shall include the party giving instructions, the shipper, the consignee, and the owner of the goods or any of their employees, agents, or affiliated entities. Notwithstanding the foregoing, advice is for the Customer only and is not to be furnished to any other party without the Company’s prior written consent. Gratuitous advice and information that is not related to instructions accepted by the Company is provided without liability of any kind, including for negligence.
These Terms, including exceptions from liability, defences, rights and limitations of liability, shall apply in all actions against the Company, whether or not the Company is acting agent or principal and whether or not the claim rises from contract or tort, even if such liability is the result of intention or gross negligence, rejection of contract or significant default or if.
These Terms supersede and control over any terms of Customer which may be communicated to Compay at any time before, concurrently with, or after the date of the agreement; and regardless of whether the Customer terms form part of any other prior or current contract with Company unless specifically accepted by Company in writing. These Terms supersede any prior offers, negotiations, and agreements between the parties concerning the subject matter. No deletion, modifications, alterations of, or additions to these Terms shall be binding unless in writing and specified by Company.
2. CLAIMS AGAINST OTHERS
These Terms also apply whenever any claim is made against any employee, agent or independent contractor engaged by the Company to perform any transport or related service for the Customer's goods, whether such claims are founded in contract or in tort, and the aggregate liability of the Company and all such persons shall not exceed the limitations of liability in these Terms. For purposes of this clause the Company acts as agent for all such persons who may ratify such agency at any subsequent time.
3. ROLE AS AGENT
When acting as an agent, the Company acts solely on behalf of the Customer in engaging the services of third parties on the usual terms and conditions on which the third parties offer such services for the carriage, storage, packing or handling of any goods, or for any other service in relation to them, thereby establishing a direct contract between the Customer and the provider of such services capable of being enforced by the Customer as principal, whether or not the Customer is identified in the contract. The Company shall on demand by the Customer provide evidence of any contracts made on its behalf.
4. ROLE AS PRINCIPAL
Where requested by the Customer the Company may issue a transport document or electronic record by which it as principal undertakes carriage of particular goods; or guarantee in writing proper performance of the terms of any contract between the Customer and a third party whose services the Company has engaged on behalf of the Customer.
Where the Company issues a transport document or electronic record, or provides a guarantee, the rights and obligations of the Company will be governed by the special conditions therein in addition to these Terms, and in any event the Company is liable only to the same extent as the third party who performs the carriage or guaranteed service, as may be limited by the conditions on which that party customarily offers its services. In the event of any inconsistency with these Terms, the special conditions prevail.
5. SERVICES REQUIRING SPECIAL ARRANGEMENTS
The Customer must give instructions in writing to the Company a reasonable time before the tender of goods for storage or transport where it requests the Company to:
Where for any reason it does not accept such instructions, the Company must promptly so advise the Customer by any means of communication used in the ordinary course of business. If it continues to use the Company's services for the contemplated transport after receiving such advice, the Customer assumes all risks connected with the non-performance of such instructions, whether caused or contributed to by the Company's negligence or not.
6. ANCILLARY SERVICES
When requested, the Company may arrange for ancillary or third-party services for the Customer. This may include services such as extended storage, cold storage, customs assistance, any other broking services, etc. When the Company arranges ancillary or third-party services for the Customer:
7. THE COMPANY'S GENERAL RESPONSIBILITIES
The Company shall exercise reasonable care in the discharge of its obligations including the selection and instruction of third parties that provide any services engaged on behalf of the Customer.
The Company shall arrange transport and any related services within a reasonable time after receiving the Customer's instructions.
If it has reasonable grounds for departing from any of the Customer's instructions, the Company can do so without prior authorization from the Customer, but must act with due regard to the interests of the Customer, and, as soon as possible, inform the Customer of its actions and any additional charges resulting therefrom.
8. CUSTOMER'S GENERAL RESPONSIBILITIES
The Customer shall be deemed to be competent and to have reasonable knowledge of matters affecting the conduct of its business, including terms of purchase and sale, the need for insurance and the extent of coverage available for the type of goods being tendered for shipment, the need to preserve and retain documentation, the need for care to avoid transmitting viruses by electronic communications, the need for confidential handling of information relating to high value goods, and all other matters relating thereto.
The Customer warrants that all information in whatever form relating to the general and dangerous character of the goods, their description, bar-coding, marks, number, weight, volume and quantity of the goods, as furnished by the Customer or on its behalf, was accurate and complete at the time the goods were taken in charge by the Company or any third party whose services it has engaged. The Customer further undertakes to provide independent confirmation of such particulars on the request of the Company.
9. CUSTOMER'S RESPONSIBILITY FOR PACKAGED AND CONTAINERIZED GOODS
Except where the Company has accepted instructions in respect of the preparation, packing, stowage, labeling or marking of the goods the Customer warrants that all goods have been properly and sufficiently prepared, packed, stowed, labeled and/or marked, and that the preparation, packing, stowage, labeling and marking are appropriate to any operations or transactions affecting the goods and the characteristics of the goods. Without limiting the foregoing, the Customer is responsible for timely communication of and warrants the accuracy of the verified gross mass (VGM) of the package(s) and or the transport unit and the identity of the duly authorized person so verifying. The customer shall maintain documentation evidencing measurement of VGM as required by law.
Unless the Company has accepted instructions to arrange for, or to perform, the loading of a transport unit by its employees, the Customer warrants that:
10. QUOTATIONS AND INVOICING
The Company does not assume a role as principal by providing a fixed price quotation, or by rendering an invoice where the difference between the amounts payable to third parties retained to carry out the Customer's instructions and the fixed price represents the Company's gross profit for its services. A Customer agrees that the Company is an agent as provided in Section 1 where the Customer accepts a fixed price quotation, or does not within thirty days after receipt of the invoice object to the Company charging a fixed price for its services.
Quotations are given on the basis of immediate acceptance and are subject to withdrawal or revision. Unless otherwise provided in a quotation the Company may, after acceptance, revise quotations or charges upon notice in the event of changes beyond the Company's control, including changes in exchange rates, rates of freight, carrier surcharges, or any charges applicable to the goods.
The Company shall issue invoices to the Customer for all fees and disbursements pertaining to services rendered to and on behalf of the Customer. All such invoices shall be payable upon receipt, or as otherwise agreed between the Customer and the Company in writing;
Interest on all late payments shall be paid at the rate of one and a half percent (1.5%) per month (18% per annum), upon which interest shall be charged commencing 30 days after the invoice due date;
The Customer shall pay Company for all costs and expenses incurred by Company in connection with the recovery of all payments due under this agreement including, but not limited to, costs of collection, all legal fees, court costs and reasonable compensation for all time expended by Company as result of such collection action.
11. CHARGES COLLECT SHIPMENTS
When goods are accepted or dealt with upon instructions to collect freight, duties, charges or other expenses from the consignee or any other person, the Customer shall remain responsible for the same if they are not paid by such consignee or other person immediately when due.
12. CHANGED CIRCUMSTANCES/FAILURE TO TAKE DELIVERY
If events or circumstances, including a Customer's failure to take delivery, occur that affect performance of the Customer's mandate, the Company shall take reasonable steps to obtain the Customer's further instructions. If for whatever reason it does not receive timely instructions, the Company may store the goods at the sole risk and expense of the Customer, or sell the goods immediately and without further notice, and hold any net proceeds for the account of the Customer or authorize any third party to abandon carriage and make the Goods or any part of them available to the Customer at a place that is reasonable in the circumstances.
13. DANGEROUS GOODS
The Customer undertakes not to tender for transportation any goods that are of a dangerous, inflammable, radioactive, hazardous or damaging nature without giving full particulars of the goods to the Company. The Customer undertakes to mark the goods and the outside of any packages or container in which they may be placed to comply with any laws or regulations that may be applicable during the entirety of the carriage, whether transported by land, sea, or air, and with due regard to all provincial, state, country, or other jurisdictional requirements for such goods. In the case of goods where the place of receipt is a point within Canada, the Customer further warrants that the goods, the packaging and marking thereof comply in all respects with the provisions of any legislation or regulations governing the transportation of dangerous goods.
If it fails to comply with the requirements of sub-clause 13(A), the Customer shall indemnify the Company against all loss, damage or expense arising out of the goods being tendered for transportation or handled or carried by or on behalf of third parties retained by the Company.
Goods which in the opinion of the Company or the person who has custody or possession thereof are or may become dangerous and present a hazard may at any time or place be unloaded, destroyed or rendered harmless without liability on the part of the Company.
The Company will not arrange insurance on the goods. Should the Customer wish to have Company arrange insurance then:
15. NOTIFICATION OF CLAIMS
The Customer on its own behalf and on behalf of the owner of the goods shall notify the Company in writing of any claim:
If a claim was not discoverable by the exercise of reasonable care within the applicable time period, the Customer must give notice immediately after receiving information as to events that may give rise to a claim. Failing notice as required by this clause, the claim is barred and no action can be brought against the Company to enforce the claim.
A notification under this clause must clearly state the goods involved, the amount of the claim (if possible), and a detailed explanation of why the Claimant holds the Company for the loss or damage.
16. LIMITATION OF LIABILITY
Compensation for any claim for which the Company is liable shall not in any event exceed:
In determining what constitutes a “package” or a “unit” in this clause, reference shall be made to a receipt for the reception of the goods, or if no such receipt has been issued, the shipping document issued for the carriage of the goods.
Without prejudice to any other provisions in these Terms, or other defences available to the Company, in no circumstances whatsoever shall the Company be liable to the Customer for consequential or indirect loss, including loss of profits and losses arising from delay or loss of market. Nor shall the Company be liable to pay compensation arising from antiquity value, sentimental value or other special values. The Company shall only be liable for direct loss in those situations allowed by these Terms, and the Company’s limitation of liability shall still apply in those circumstances.
Under no circumstances whatsoever shall the Company be liable for any loss or damage that may be attributed to the following events, which are, however, not exhaustive:
This non-exhaustive list does not prejudice any other circumstance considered by these Terms that would exclude or limit the Company’s liability as evidenced by any other clauses in these Terms.
Upon the Customer’s written request and Company express and written agreement, the Company may accept liability exceeding these limits in writing, provided the Customer pays the Company’s additional charges for such increased liability.
The Customer shall indemnify the Company against all duties, taxes, payments, fines, expenses, losses, claims and liabilities, including without limitation any storage, demurrage, port, or terminal charges and any liability to indemnify any other person against claims made against such other person by the Customer or by the owner:
18. SET OFF AND COUNTERCLAIM
The Customer shall pay to the Company in cash, or as otherwise agreed, all sums immediately when due without reduction or deferment on account of any claim, counterclaim or set off.
19. RIGHT OF DETENTION AND LIEN
All goods (and documents relating to goods) shall be subject to a particular and general lien and right of detention for monies owing either in respect of such goods, or for any particular or general balance or other monies owed, whether then due or not, by the Customer to the Company. If these monies remain unpaid for 10 days after the Company sends notice of the exercise of its rights to these persons by any means of communication reasonable in the circumstances, the goods may be sold by private contract or otherwise at the sole discretion of the Company, and the net proceeds applied on account of the monies owing. The Company will not be liable for any deficiencies or reduction in value received on the sale of the goods nor, will the Customer be relieved from the liability merely because the Company has excercised its rights hereunder or the goods have been sold.
If there is a surplus remaining from the sale of the goods, after settlement of the claim including costs and interests, and payment of all related fees, the surplus shall be returned to the Customer.
20. FORCE MAJEURE
The Company shall be relieved of any and all liability for any loss or damage if, and to the extent that, such loss or damage is caused by extraordinary circumstance beyond the Company’s control and which could not be avoided by the exercise of reasonable diligence, inter alia: strike, lockout, work stoppage, or restraint of labour; acts of war; natural disaster; riots or civil unrest; malicious acts, vandalism, or damage an entity causes to the goods in pursuit of an entity’s ulterior motive or actions; outbreak of disease, epidemic, pandemic, or quarantine; and acts of Princes or governmental authorities. In such circumstances the Company is entitled to modify its services, procedures, rates, prices, and surcharges as in the Company’s reasonable discretion are considered necessary, and the Forwarder is entitled to full remuneration and indemnity for any charges so incurred or applied.
21. TIME BAR
The Company shall, unless otherwise expressly agreed, be discharged of all liability under these Terms unless suit is brought within 9 months from the date of delivery of the goods for claims to damage to goods, or the date when the goods should have been delivered for claims for delay in delivery or loss of goods.
With respect to loss or damage other than loss of or damage to the goods, the 9 months period shall be counted from the time when the act or omission of the Company giving rise to the claim occurred.
Nothing in this Clause 21 shall prejudice the time limits set out in Clause 15 (Notification of Claims).
22. CUSTOMARY REMUNERATION RECEIVED FROM THIRD PARTIES
The Company shall be entitled to be paid and retain all brokerages paid by carriers, commissions, documentation allowances, profits on foreign exchange and other remunerations paid by third parties as is customary in the trade.
23. TERMINATION OF BUSINESS
Should the Customer significantly default in his obligations under these terms, or any other agreement with the Company, the Company has the right to terminate the said agreement and/or power of attorney regarding any services provided by the Company without further notice.
If the default is not significant the Company shall have the right to terminate the relevant agreement and/or power of attorney regarding any services provided by the Company by giving the Customer, in a verifiable manner, 15 days’ prior notice, urging the Customer to rectify the default within said notice otherwise the agreement will be terminated and thereupon any obligations and responsibilities of the Company will be terminated without any liability to the Company.
In other instances, the Company shall have the right to terminate services by giving the Customer 30 days prior notice.
24. APPLICABLE LAW AND JURISDICTION
These Terms shall be governed by the laws of Canada and of the province of Newfoundland and Labrador. By accepting the services provided under these Conditions, the Customer irrevocably attorns to the exclusive jurisdiction of the Courts of that Province and the Federal Court of Canada.
The Parties agree that where they have used electronic communications to transact in whole or in part any business such communications will be given legal effect in accordance with the provisions (so far as they may be applicable) of the Uniform Electronic Commerce Act as approved by the Uniform Law Conference of Canada.