Terms & Conditions of Service of Traffic Tech International, US, LLC*
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.
(a) "Company" shall mean Traffic Tech International, US, LLC, 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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 Northern District of Illinois or, if federal jurisdiction is lacking, to the state courts in Cook County, Illinois.
(*)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)
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.
Customs Broker Services
- "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.
- 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”).
- Disbursements incurred by the Customs Broker on behalf of the Client shall be reimbursed to the Customs Broker by the Client.
- Invoicing and Payment
The Customs Broker shall issue invoices to the Client for all Fees pertaining to the Services.
- 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.
- 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.
- 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.
- Advancement of Funds
- 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.
- 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.
- 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,
- unless otherwise instructed by the Client; or
- 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.
- 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.
- Duties and Responsibilities of the Client
- The Client shall:
- 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;
- promptly review all documentation and/or data and notify the Customs Broker of any inaccuracies, errors or omissions found therein; and
- 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:
- Disbursements made by the Customs Broker on behalf of the Client;
- Government Charges; and
- 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
- 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”).
- 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.
- 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.
- 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.
- The Customs Broker shall promptly account to the Client for funds received by the Customs Broker to the extent that these funds are:
- for the credit of the Client from the Receiver General for Canada or other applicable government authorities; or
- 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.
- 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.
- 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.
- 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.
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.
- 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.
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.
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:
- 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;
- 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;
- 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;
- making arrangements for delivery of the goods;
- 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;
- 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;
- providing advice on tariff classification, value for duty, origin and any other relevant federal or provincial customs requirements;
- providing advice on federal and provincial tax implications, payment options and any other tax requirements concerning the Client's imported goods;
- providing advice concerning Government Charges, refunds, drawbacks, and remissions, as well as appeals of tariff classification or value for duty decisions of CGAD;
- preparing and filing refunds, appeals, drawbacks and remission applications;
- providing consulting, advice, information and assistance to the Client on matters pertaining to the seizure, detention, and forfeiture of goods; and
- 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.