STANDARD TRADING CONDITIONS OF TRANSPORT
DESTINATION LOGISTICS INC.
These standard trading conditions between Destination Logistics Inc. ("Destination") and motor carriers (the "Terms") apply to all shipments of commodities (the "Goods”) for which Destination retains the services of a motor carrier (the "Carrier").
Carrier, by agreeing to perform transportation or related services (the "Services"), is bound by these Terms and waives any and all rights and remedies that it may have according to law, that are contrary to specific provisions of these Terms.
- Destination as Broker. Carrier acknowledges that Destination is a transportation broker duly registered as a transport service intermediary with the Quebec Transport Commission under number 9-Q-30861-I and as a Property Broker with the Federal Motor Carrier Safety Administration (“FMCSA”) under docket number MC-687658. Destination 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 Services.
- Carrier. Carrier must be duly registered with at least one of the Canadian provincial transport authorities and/or licensed by the Federal Motor Carrier Safety Administration (“FMCSA”) to provide the Services.
- 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.
- Scope. These Terms apply to all shipments tendered to Carrier by Destination or by third parties acting on behalf of Destination.
- Carrier shall transport the Goods only by motor vehicle. Carrier shall provide equipment suitable for the safe transportation of Goods including if required, but not limited to, adequate and appropriate chains, dunnage, binders, straps and tarps to be used in such transportation.
- All Carrier personnel involved in loading, transporting, or unloading Goods shall be skilled and experienced in the transport of items similar to the Goods. Carrier shall have an opportunity prior to transport to notify Destination in writing of any defect or objection with shipper’s loading or securement of the Goods. Should Carrier fail to notify Destination prior to commencement of Good transportation that it will be conclusively presumed, as between Carrier, shipper and Destination, that Carrier is: (i) satisfied with respect to the loading and securing of the Goods on Carrier’s motor vehicles, and (ii) solely responsible for the loading and securement of the Goods from pick up until delivery.
- Carrier shall transport, deliver and, as required and applicable, load and unload all Goods specified on each Carrier Confirmation in a safe and secure manner, which obligation includes, but may not be limited to, adequately securing trailers at all times, and ensuring that unauthorized parties do not access the Goods at any time, and, unless the shipment is “Shipper Load and Count”, checking the count and condition of the Goods and ensuring that it is properly packaged and secured for transit. Carrier shall also: (i) conduct an inspection of all empty containers/trailers prior to loading; (ii) document all inspections; (iii) establish seal control, issuance, affixing, and verification policies with appropriate checks and balances; (iv) track driver movements throughout transportation; (v) establish access controls to all transported Goods; (vi) implement effective screening processes for all employees and/or contractors who handle Goods hereunder; and (vii) ensure that any vehicle used in the provision of Services hereunder can at all times, regardless of weight, commodity or dimension, be operated over any road, highway, bridge or route in compliance with Applicable Law (as defined herein). Carrier shall not leave a trailer unattended unless the trailer is left in a secured and locked facility with proper kingpin locks affixed. It is Carrier’s sole responsibility to confirm that it may lawfully operate a loaded vehicle of any weight, commodity or dimension over any road, highway, bridge or route. Carrier shall be solely responsible for any fines, penalties or citations occurring as a result of operating a vehicle over any road, highway, bridge or route in violation of any applicable regulation, law or ordinance.
- Where Goods are shipped and the shipping conveyance is sealed by the shipper, Carrier shall ensure that the seal on the load remains intact from the time of pickup and loading until the Goods are delivered, and will comply with all other seal requirements, unless ordered otherwise by any governmental authority having jurisdiction over the Goods.
- Carrier’s delivery of Goods shall be made with reasonable dispatch and occur according to the delivery dates or schedule given by Destination in accordance with any Carrier Confirmation. If delivery is not made at an appointed time, or within a delivery window, Carrier shall be liable for any penalties or charge backs which may be imposed on Destination by its customers. Carrier shall immediately notify Destination of any circumstances of which Carrier becomes aware that may affect Carrier’s ability to maintain such delivery schedule.
- If Carrier is transporting harvested produce, Carrier is responsible for having the harvested produce pulped upon loading and marking the temperatures on the bill of lading. Moreover, Carrier must sign for correct case counts of harvested produce, as per the Carrier Confirmation. Carrier will be responsible for any overages and/or shortages.
- Upon pick-up of the harvested produce, Carrier must ensure that at least one (1) temperature recorder is placed on the last pallet loaded, at eye level. For berries and cherries loads, two (2) temperature recorders are required. Reefer units must be running on continuous mode at all times and set at the temperature stated in the Carrier Confirmation.
- Carrier is responsible of ensuring that the load is secured and that load locks and seals have been applied before leaving point of origin. Carrier must also inform Destination of any broken seal during transit.
- Carrier is responsible for pallets exchange, unless agreed otherwise in writing with Destination.
- Upon delivery, Carrier must send lumper receipts to the team at Destination Logistics by email.
- All Carrier’s equipment travelling in the state of California must comply with ARB’s TRU ATCM in-use performance standards, ARB’s Tractor Trailer Greenhouse Gas Regulation and ARB’s Truck and Bus Regulation.
Bill of Lading.
- Carrier shall issue, fully complete and sign (including the printed name of the driver) a bill of lading for all shipments. Such bill of lading shall detail the kind, quantity and condition of commodities received, Carrier’s name, together with the shipper, consignee or owner of the property transported where applicable, and if known to Carrier. The terms and conditions of such bill of lading shall not modify, supplement or supersede the Terms, unless specifically agreed to by Destination in a separate signed writing, apart from the bill of lading. Such bill of lading shall be prima facie evidence of receipt of the shipment in good order and condition by Carrier unless otherwise noted on the face of said document.
- If Destination is erroneously identified as the “carrier” on any bill of lading or other shipping document at the origin point or in the course of transit, such designation will not modify or amend the relationship between Destination and the Carrier or the role of Destination as a transport service intermediary or load broker.
- The receipt or bill of lading, which may be prepared by Destination or a shipper, shall serve only as a receipt for the Goods and not as the contract of carriage, nor as evidence of title. Except as specifically agreed to otherwise by the Parties in writing, all shipments accepted for transportation by Carrier, whether transported by Carrier or by any permitted interlining carrier, shall be governed solely by these Terms, and no provision of any other pre-printed publication or agreement, such as the bill of lading, shall apply. Where there is a contradiction between the terms of a Carrier Confirmation and any terms set out on the bill of lading relating to such shipment(s), Carrier agrees, if possible, in a timely fashion, to contact Destination for instructions. Carrier must ensure that Carrier’s name is clearly stated as the carrier of record on the bill of lading.
- Carrier shall obtain an acknowledgement of delivery for all shipments tendered by Destination, by notation on the bill of lading or any other delivery receipt, signed and dated by the consignee. Carrier shall submit an original copy of the bill of lading to Destination evidencing delivery of the Goods, unless otherwise instructed by Destination, in which case Carrier shall retain custody of the bill of lading and provide it to Destination upon receipt.
- The absence or loss of any bill of lading or delivery receipt shall not relieve the Carrier of its obligation and liabilities with respect to any Services provided by Carrier.
- Carrier may not re-broker, co-broker, subcontract, assign, interline, or transfer the transportation of Goods hereunder to any other persons or entity conducting business under a different operating authority, without Destination’s prior written consent. If Carrier breaches this provision, Destination may, at Destination’s option and without prejudicing any other right or remedy that Destination may have, or Carrier’s liability to Destination hereunder, do any of the following: (i) pay any or all monies it owes Carrier directly to the delivering carrier, in lieu of payment to Carrier; (ii) withhold payment to Carrier until it obtains confirmation that delivering carrier has received full payment for its services.
- Carrier shall not divert of reconsign any shipment except upon written instructions from Destination. Carrier shall not accept instructions for diversion or reconsignment from any consignee without notice to Destination, and written consent of Destination.
- To the extent Destination permits Carrier to subcontract all or any portion of the Services provided hereunder, any use of subcontractors by Carrier will be viewed as if such Services were provided by Carrier directly. Carrier shall be and shall remain liable to Destination pursuant to the Terms. Carrier is and at all times shall be solely responsible for its subcontractors and shall pay its subcontractors any and all charges or compensation, and shall remain responsible to Destination for the full, proper, lawful and safe performance of the Services as though any subcontracted service had been performed directly by Carrier.
- Title to Goods. Carrier shall not acquire title to any Goods, and shall not permit any agent or subcontractor to acquire title to the Goods.
Delivery Failure, Delay and Accidents.
- In the event that Carrier becomes unable to deliver any shipment, in whole or in part, and/or in accordance with the time requirements imposed for any other reason than Force Majeure (as defined in Section 36 hereinafter), Carrier shall immediately notify Destination, and Destination shall have the right, but not the obligation, to provide alternative transportation for such shipment, or any required shipment of replacement goods, all at Carrier’s expense. Carrier shall cooperate fully in the transfer of the shipment to a substitute carrier. Such transfer will relieve thereafter the Carrier of its obligations and liability hereunder, including, but not limited to, Carrier’s liability for such shipment as set forth herein.
- Carrier shall immediately notify Destination, by telephone, facsimile, text of email of any accidents, spills, theft, hijacking or other events that impair the safe and prompt delivery of the Goods in its care, custody and control.
- Delivery Rejection. In the event that the consignee rejects a shipment that Carrier has attempted to deliver, Carrier shall immediately notify Destination, and Destination shall provide Carrier with instructions respecting the disposition of such shipment. Unless specifically instructed by Destination, Carrier shall not place such shipment in a warehouse or other storage, as long as Destination provides Carrier with its written instructions respecting the disposition of the shipment, within forty-eight (48) hours after having received such notice from Carrier. The foregoing shall not be deemed to waive any of Destination’s rights or remedies with respect to Carrier’s handling of such shipment. In no event may Carrier dispose or salvage the shipment without the written consent of Destination.
- Driving Directions. Any driving directions provided by Destination on any Carrier Confirmation shall be for informational purposes only and shall not be relied upon by Carrier in performing its Services; provided, however, that Carrier may be required to comply with specific routing restrictions to protect Goods from damage, in which case Carrier shall comply with such specific routing restrictions. Carrier shall have sufficient information technology capabilities and resources to provide real-time shipment tracking to Destination upon request. Carrier acknowledges that pick-up and delivery dates and hours will not require the Carrier to violate hours of service regulations.
- Goods Refrigeration and Temperature Control. In the event that shipments tendered hereunder require specific temperature expectations, Carrier shall be solely responsible for (i) complying with the instructions regarding such temperature controlled shipments, (ii) ensuring that the temperature control units are properly operating and maintained at all times, and (iii) ensuring that the temperature settings are correct and in accordance with Destination’s requirements, as mentioned on the Carrier Confirmation. In the event that the Carrier arrives to pick-up a load which is to be temperature controlled, but it has not been provided with appropriate directions (e.g., the appropriate temperature setting), Carrier shall be responsible for obtaining appropriate instructions from Destination prior to departure.
- Unless otherwise specified in writing by Destination, all freight charges, costs, fees and expenses including accessorial charges, shall be set forth on the Carrier Confirmations. Freight charges and accessorial charges set forth on any Carrier confirmation shall constitute the total compensation for everything furnished, provided, or done by Carrier.
- No shipment tendered to Carrier shall be subject to any fees, accessorial charges, or any additional rates or charges in excess of and/or in addition to the agreed rate set forth on a Carrier Confirmation, unless Destination agrees in advance in writing to pay such additional amounts. Destination shall confirm all accepted changes to a rate confirmation with a replacement Carrier Confirmation. Notwithstanding the foregoing, in the event of an emergency or “spot rate” load, rate modifications may be established or amended verbally, by fax or email; provided however, that both Carrier and Destination promptly confirm such rate modification by fax or email;
- Carrier authorizes Destination to invoice its customers for freight charges on behalf of Carrier. However, Carrier agrees that Broker is solely responsible for payment of all freights charges to Carrier.
- Carrier will promptly invoice Destination for all applicable freight and accessorial charges, and in all cases within thirty (30) days of such charges being incurred, or of the date of the delivery of the applicable shipment, whichever is earlier.
- Destination will pay Carrier for Services rendered within thirty (30) days of receipt by Destination of Carrier’s invoice and proper documentation covering such transportation. Carrier must provide Destination with copies of shipping documents, including imaged or original signed delivery receipts, as well as supporting receipts for pre-approved accessorial charges, as a condition for payment of Carrier’s invoices. Carrier waives its right to collect accessorial charges if it fails to provide supporting receipts for such charges. For greater certainty, Destination will not be liable for any late payment penalties that Carrier may impose except as expressly agreed in writing by Destination;
- Carrier: (i) waives and relinquishes any and all rights to claim, demand, or seek payment from any person other than Destination for any shipment tendered; (ii) agrees not to contact Destination’s customers, beneficial owners, shippers, consignees or any party other than Destination concerning payment for the Services rendered; (iii) appoints and designates Destination as its agent for the purpose of invoicing and collecting freight charges; and (iv) agrees to indemnify, defend and hold Destination, its customers, beneficial owners, shippers, and consignees harmless from any losses, harm, injuries, damages, claims, costs, expenses, and liabilities (including reasonable legal fees and other costs of litigation, including expert witness fees) (collectively, the “Damages”), arising from any claim or demand made by any of Carrier’s subcontractor or other party for payment for Services related to a shipment tendered.
- Overcharges and Undercharges. The time limit for filing overcharge and undercharge claims shall be ninety (90) days. No legal action may be brought by Carrier relating to a shipment or payment therefor unless brought within three (3) years after the date of such shipment.
- Maintenance of Records. Carrier shall maintain complete, detailed and accurate records and other data applicable to its provision of transportation Services and billing for a period of no less than three (3) years from the date of delivery.
- Destination may withhold and offset any compensation owed to Carrier: (i) on any occasion when a shipment tendered is lost, damaged, or delayed in transit; (ii) to satisfy any unpaid debt owed by Carrier to Destination; or (iii) to satisfy any un-reimbursed advance made to Carrier, or on its behalf. Withholding and offsetting of compensation shall not allow, permit, or entitle Carrier to seek payment from Destination’s customers, beneficial owners, shippers, consignees, or any other third party.
Compliance with Applicable Laws.
- Carrier must be duly and legally qualified and registered in accordance with, and shall provide its Services in accordance with all federal, state, provincial, territorial, and local laws, statutes, regulations, rules, and ordinances including, but not limited to, those related to transportation and storage of hazardous materials, food or pharmaceutical grade Goods, and any environmental or emissions-related laws as well as any legislation and related programs designed to protect transportation activities from terrorist attacks, such as Customs Trade Partnership Against Terrorism (“CTPAT”) and the Free and Secure Trade initiative (collectively, “Applicable Law”). In particular, but without limitation, Carrier shall observe and obey all laws, regulations, and rules pertaining to load securement, weight restrictions, speed limits, routing restrictions, hours of services, controlled substances testing, driver training and qualifications, vehicle inspection and/or safe operation of motor vehicles;
- Upon receiving an “Unsatisfactory” or “Conditional” safety rating (or unfit safety rating issued by any regulatory authority with jurisdiction over Carrier’s operations), or otherwise being prohibited by Applicable Law from performing the Services hereunder, Carrier shall immediately notify Destination of such fact and should the safety rating be “Unsatisfactory”, cease performing the Services until Carrier is once more in compliance and Destination expressly permits Carrier to perform Services. Upon Destination’s request, Carrier shall provide proof of Carrier’s compliance with Applicable Law by providing Destination with all relevant documentation;
- Carrier shall indemnify Destination for any fines, costs, claims, liabilities or expenses that may incur and arise out of violations by Carrier of any Applicable Law during Carrier’s performance of its Services.
- Licenses and Permits. Carrier shall, at all times during the term of this Agreement, hold, secure, and maintain all licenses, permits, registrations, approvals, certificates, insurance, and financial assurances now or at any time hereafter required by any Applicable Law for the transportation of Goods hereunder or for any other Services to be provided by Carrier. Carrier shall provide copies of all such licenses, registrations, permits approvals and insurance to Destination upon Destination’s request.
- Hazardous Materials Registration. If Carrier transports any Goods that are defined as hazardous materials or dangerous goods under the Applicable Law (“HazMat”), Carrier shall first have obtained, and shall thereafter annually (or otherwise as required by Applicable Law) update or renew and maintain in effect, a valid and current HazMat registration, and maintain appropriate certification for all drivers who provide Services for such hazardous cargo. At Destination’s request from time to time, Carrier shall promptly provide to Destination copies of such HazMat registration and current renewals and updates thereof.
- Hazardous Materials Qualifications. If Carrier transports any HazMat under these Terms, Carrier hereby represents and warrants to Destination that: (i) Carrier understand all currently known hazards and risks to human beings, property, and the environment associated with the transportation of such hazardous materials; (ii) Carrier is engaged in the business of, and has requisite expertise for, transporting HazMat; (iii) all of Carrier’s employees and contractors who will be engaged in the transportation of HazMat hereunder have been fully trained as required by Applicable Law and have all permits, licenses, certificates, and approvals required by Applicable Law to perform Services hereunder relative to the transportation of HazMat; and (iv) Carrier has all permits, licenses, certificates, and approvals required under Applicable Law for the transportation of hazardous materials. By accepting any shipment of hazardous materials, Carrier warrants that it is licensed, qualified and certified to transport the shipment, and will use all proper and legally compliant equipment suitable to transport such specific HazMat in a safe and efficient manner. Except if resulting from the willful misconduct or gross negligence of Destination or those other persons for whom Destination is responsible at law, Carrier agrees to be responsible for any and all HazMat and environmental claims, clean up and remediation and the costs stemming therefrom that may arise from the willful misconduct or gross negligence of the Carrier, and of those persons for whom it is responsible at law, performing the Services hereunder.
- Carrier shall provide only drivers possessing the proper licensing, training, skill and experience necessary for the safe and workmanlike transportation of Goods. Carrier shall also maintain adequate internal procedures to evaluate its drivers through pre-employment screenings, drug and alcohol testing (for international shipments), and ensure that Carrier’s drivers are otherwise qualified under the FMCSA’s regulations (if applicable).
- Carrier shall: (i) have full control of its personnel, including all subcontractors; (ii) perform the Services as an independent contractor of, and not an agent or employee of, or joint venture with Destination; (iii) shall assume complete responsibility for all salaries, commissions, municipal, provincial, federal, foreign and domestic taxes or contribution to taxes, assessments, insurance (including but not limited to, workers’ compensation, unemployment compensation, disability, pension and social security insurance and any foreign equivalent) and any other financial obligations arising out of the Services provided or with respect to the persons engaged in the performance of the Services; and (iv) comply with all Applicable Law related thereto.
- Carrier shall be solely responsible for supplying, carrying and maintaining all equipment necessary to carry out its obligations. Such equipment shall be in good, safe and efficient operating condition (which includes providing secure, clean, sanitary, dry, leak-proof, free-from-infestation or contamination, defect-free and odor-free trailers that have not previously hauled waste products), in compliance with any and all Applicable Law, shall be suitable and properly configured to safely load, transport, and unload the shipments specified on each Carrier Confirmation (including any special requirements related thereto), and shall be registered, licensed, insured and , if applicable, identified under Carrier’s, or one of its affiliate’s, own name and, if applicable, U.S. DOT number.
- Carrier shall bear the costs and expenses of all fuel, oil, tires, parts, road services, maintenance and repairs, licences, taxes and tolls in connection with the use and operation of the equipment and which may be required to keep the equipment in good repair and mechanical condition. Destination will not be liable to Carrier for any damage sustained by or to Carrier’s equipment or for loss by complication or seizure or Carrier’s equipment by any public authority.
Non-owned Trailers. If Carrier is required to haul a trailer that is owned by Destination’s customer (the “Non-owned Trailer”), the following terms will apply:
- Carrier must: (i) inspect the Non-owned Trailer upon taking possession of same; (ii) complete and sign the inspection report provided by Destination; and (iii) send same to the team at Destination Logistics by email;
- Carrier shall not use the Non-owned Trailer for any purpose other than the carrying out of the Services as per these Terms;
- Carrier will be responsible for all losses and damages caused to the Non-owned Trailer while in its possession, care and control;
- Prior to taking possession of the Non-owned Trailer, Carrier must provide Destination with an insurance certificate attesting that it maintains proper insurance coverage for the Non-owned Trailer, such as a QEF-27 endorsement or other similar endorsement having the same coverage;
- Carrier hereby releases and agrees to defend, hold harmless and indemnify Destination, the owner of the Non-owned Trailer and their respective insurers from and against any and all loss, damage, liability, cost or expenses suffered by any of them and arising out of the Carrier having control or possession of the Non-owned Trailer during the performance of any transport movement.
Carrier’s Minimum Insurance Requirements.
- Carrier shall procure and maintain in force, at its own expense, the following types of insurance issued by reputable insurers domiciled in the United States of America or Canada:
- Automobile liability insurance on any owned, non-owned or hired vehicles covering bodily injury, including death, and property damage and loss with limits of not less than CAD$1,000,000 per occurrence, and limits of not less than CAD$5,000,000 per occurrence when Carrier is transporting HazMat. Carrier’s automobile liability insurance shall contain a pollution liability endorsement;
- Comprehensive general liability insurance covering bodily injury, including death, and property damage with minimum limits of not less than CAD$1,000,000 for any one accident, disaster or occurrence, and CAD$2,000,000 in the aggregate. Carrier’s general liability insurance shall (i) be “primary” and “non-contributory”, and (ii) name Destination as additional insured via endorsement;
- All-risk cargo insurance in the minimum amount of CAD$100,000. Where Carrier is providing or using equipment designed for refrigerated, heated, or other temperature controlled services, such insurance shall contain an endorsement insuring against the mechanical breakdown of such refrigerated, heated, or other temperature controlled equipment, and against driver error; such insurance shall include no exclusions likely to result in denial of coverage for shipments handled including, but not limited to, exclusions for electronics, perishable commodities unattended vehicle or from a trailer detached from the power unit, reefer malfunction, lack of reefer fuel, or failure to set or maintain the appropriate temperature;
- Worker’s Compensation insurance at statutory limits in accordance with the laws of the State or province in which Carrier is located, fully covering all Carrier personnel performing any Services;
- Employer’s liability coverage with minimum limits or not less CAD$1,000,000 per occurrence.
- Carrier shall furnish to Destination copies of Carrier’s certificates of insurance obtained from the insurance carrier showing that such insurance has been procured, is being properly maintained, the expiration date, and specifying that written notice of cancellation of the policies shall be given to Destination at least thirty (30) days prior to such cancellation. In addition, Destination shall be named as additional insured on Carrier’s general liability policy, and as loss payees on the cargo liability policy as evidenced by an endorsement on the certificates of insurance. Upon Destination’s request, Carrier shall provide Destination with copies of the applicable insurance policies. Where Carrier is self-insured, Carrier will provide written proof to Destination of the approval of the governmental agencies of such self-insurance, and financial statements or other financial information upon Destination’s request from time to time.
- The cargo liability insurance policy maintained by Carrier shall not exclude coverage for infidelity, fraud, dishonesty or criminal acts of the Carrier, its employees, agents, officers or directors (“Employee Dishonesty”) and shall not have any limits of liability or exclusions on the insurance policy for: (i) less than the insured amount or full actual value of the Goods, whichever is higher, or (ii) commodities and terms and conditions shown on the Carrier Confirmation(s) specific to the shipment or series of shipments. In the event that Carrier’s cargo policy cannot be endorsed to exclude coverage for Employee Dishonesty, Carrier shall obtain and maintain a separate crime insurance policy to ensure similar coverage.
- Liability for Loss. Subject to the limitations of liability set forth hereunder and to the provisions of Section 31 hereinafter, Carrier shall, at its sole expense, take reasonable care in its handling, transporting and, when necessary, storing of all Goods. Carrier shall be liable to Destination for any and all damages resulting from any “Loss” of Goods transported. Carrier’s liability shall begin with the loading of the Goods on Carrier’s equipment at the point of origin and shall continue until the Goods are delivered to Destination’s designated recipient. As between Carrier and Destination, Carrier assumes all risk of securing Goods to Carrier’s motor vehicles and all liabilities and obligations arising out of the failure to do so or the shifting or movement for any reason of the load of Goods on such motor vehicles. Carrier shall be liable to Destination’s customer, or to Destination, as assignee of the claim, for loss or theft of, and damage to shipments, and for delayed deliveries. However, Carrier shall not be liable for loss, damage, or delay caused solely by Force majeure (as defined in Section 36 hereinafter), or the negligence of Destination or its customer, in which case Carrier shall have burden of proving applicability of the exception. Carrier’s maximum liability for Loss or damage shall be the full actual value of each shipment transported hereunder, which shall be the vendor’s invoice price of the Goods comprising the shipment at the place and time of shipment, plus the freight and other costs if so paid. No released value or other limitation of liability shall be valid or enforceable against Destination or its customers unless expressly agreed to by Destination in a signed writing separate from any bill of lading or, other delivery receipt issued by Carrier. The limit set by Carrier’s cargo insurance shall not limit, or be deemed to limit, Carrier’s liability on any shipment accepted. As used herein, “Loss” means (i) any damage, shrink, loss, destruction, delay, or mysterious disappearance of any Good, or (ii) any circumstance that renders a Good in a condition where the Good’s value or marketability is lost or reduced in any material respect. Each party hereto shall promptly notify the other party of any claims of damage or Loss of which it becomes aware.
- Loss Procedures. Carrier shall return all damaged Goods at its expense to the point of origin or to other points as instructed by Destination for the purpose of inspection and mitigation of damages. All costs for such return shall be solely borne by Carrier. Within thirty (30) days of receiving a claim from Destination or its customer for loss, theft, damage, or delay, Carrier shall pay or deny the claim (in which case the reasons for denial shall be fully explained in writing), or make a firm compromise offer
- Concealed Damage. Claims based on a concealed loss or damage reported to Carrier within fifteen (15) days of the date of delivery shall be treated by Carrier as though an exception notation had been made on the delivery receipt at the time of delivery.
- Labeled Goods. In the event branded or labeled Goods are damaged, Destination’s customer may decide, in its sole discretion, whether the Goods may be salvaged, and if salvageable, the value of such salvage. Any salvage receipts shall be deducted from the amount of the claim against Carrier. If Carrier pays the full, actual value of the damaged Goods and requests possession of the Goods for salvage, then customer shall have the right to remove all identifying marks or labels. Alternatively, the Goods shall be permanently marked as “damaged” or similarly noted, in which case neither Destination nor its customer shall bear any cost or expense of such notation.
- S. Domestic Shipments. For U.S. domestic shipments only, Carrier shall be liable for Loss to any Goods shipped hereunder in accordance with the terms of 49 U.S.C. § 14706 (the “Carmack Amendment”) and 49 CFR Part 370. Said provisions shall be the exclusive remedy for any claim for Loss of Goods transported during a U.S. domestic shipment.
- Carrier’s Indemnification. Carrier shall indemnify, defend, and hold Destination, its affiliated entities, customers, beneficial owners, shippers and consignees, and their respective officers, directors, employees and agents, harmless from and against any and all Loss arising from, or in connection with: (i) Carrier’s breach of its obligations hereunder, (ii) the Services provided by Carrier, its employees, agents, and subcontractors, unless resulting exclusively from Force majeure (as defined in Section 36 hereinafter), or the gross negligence or willful misconduct of Destination or its customer; (iii) injuries to or the death of any person or persons; and (iv) loss or damage to the business or property of any person or persons, including the property of Destination.
- Absence of Lien. Carrier shall have no lien on any shipment, freight or property of Destination or any of its customers, shippers, beneficial owners or consignees. If, notwithstanding the foregoing, the Carrier asserts a lien, Carrier shall pay the actual cost of replacing the Goods against which the lien is asserted, inclusive of transportation costs, legal fees, bond and surety costs and all other costs incidental to actions to recover possession and clear title to and use of any Goods subject to a lien.
- Non-Disclosure of Information. Carrier agrees to keep confidential any information provided to it by Destination relating to Destination’s operations or business activities, including, but not limited to, the names of suppliers, carriers, brokers, vendors, shippers, consignees and customers, the rates agreed to by the parties, pricing, Destination’s technical information, and the existence or terms and conditions of this Agreement. Carrier shall hold all such information in confidence and shall not use any such information other than for the benefit of Destination or in performance of its obligations hereunder.
- Independent Contractor Status. The relationship of Carrier to Destination shall, at all times, be that of an independent contractor. Carrier shall provide the sole supervision and shall have exclusive control over the operations of its employees, contractors, subcontractors, agents, as well as all vehicles and equipment used to perform its transportation services hereunder.
- Force Majeure. Neither Carrier nor Destination shall be liable for any delay in performance if such delay arises form or relates to acts of God, war, terrorism, natural disasters, road accidents, closing of public highways, government interference, laws or regulations, strikes, civil disorder or any similar event or occurrence beyond the reasonable control of the affected party, making it inadvisable, illegal, or impossible to perform their obligations under this Agreement. Any party affected by a Force Majeure event shall promptly upon learning of such event give notice to the other party, stating the nature of the force majeure event, its anticipated duration, and all actions being taken to avoid or minimize its effect. If a Force Majeure continues for more than three (3) days, Destination may cancel Carrier’s Services.
- Logo Use; Press Release. Carrier shall not use Destination’s name, logo or trademark in any public communication, including without limitation, press releases, advertising, marketing materials or web sites, or as a customer reference without the prior written approval of Destination.
- For a period of one (1) year following the execution by Carrier of the last transport movement tendered by Destination, Carrier shall not provide transportation services or related services to any of Destination’s customers for which Carrier has provided Services pursuant to a Carrier Confirmation’s, unless the shipments are tendered by Destination. If Carrier breaches the foregoing requirement, then it shall be liable for and shall pay liquidated damages to Destination equal to an amount representing twenty percent (20%) of its gross revenue for all shipments transported in violation of this Section. For purposes of enforcing this Section, Destination shall have the right to inspect Carrier’s records and books, during regular business hours, upon ten (10) days prior written notice.
- For a period of two (2) years following the execution by Carrier of the last transport movement tendered by Destination, Carrier shall not solicit for employment any employees of Destination, except with the express written permission of Destination; provided that the foregoing does not prohibit Carrier from pursuing employment discussions with or hiring an employee who responds to a general advertisement initiated by Carrier.
- Governing Law, Jurisdiction and Venue. Subject to Section 31 hereinabove, the Terms, and any and all claims arising directly or indirectly from the relationship between Destination and Carrier created by these Terms, shall be governed by the laws of the Province of Quebec, without reference to its conflicts of laws provisions. Any lawsuit relating to the Services provided pursuant to any Carrier Confirmation shall be brought only in the provincial courts located in Montreal, Province of Quebec.
- The terms and conditions of these Terms shall govern and supersede any agreement, terms and conditions that may be prescribed by Canadian and provincial laws or regulations, as well as any bills of lading, delivery receipts, Carrier confirmation forms or other shipping documents.