All Business Undertaken by 1UP CARGO INC. is subject to below Standard Trading Conditions of Contract:
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1. ROLE OF FORWARDER (“1UP CARGO INC.”) hereafter called the Company
1UP CARGO INC. offers its services on the basis of these conditions that apply to all activities of 1UP CARGO INC. in arranging transportation or providing related services, such as, but not limited to, warehousing and any other kind of logistics services. 1UP CARGO INC. may provide its services as either principal or agent. 1UP CARGO INC. acts as an 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 1UP CARGO INC. .
When determining any rights or liabilities of 1UP CARGO INC. under these conditions, the word “Customer” shall include the party giving instructions, the shipper, the consignee, and the owner of the goods. Notwithstanding the foregoing, advice is for the Customer only and is not to be furnished to any other party without 1UP CARGO INC. ’s prior written consent. Gratuitous advice and information that is not related to instructions accepted by 1UP CARGO INC. is provided without liability of any kind, including for negligence.
2. CLAIMS AGAINST OTHERS
These Conditions also apply whenever any claim is made against any employee, agent or independent contractor engaged by 1UP CARGO INC. 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 1UP CARGO INC. and all such persons shall not exceed the limitations of liability in these conditions. For purposes of this clause, 1UP CARGO INC. acts as an agent for all such persons who may ratify such agency at any subsequent time.
3. ROLE AS AGENT
When acting as an agent, 1UP CARGO INC. 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. 1UP CARGO INC. shall, on demand by the Customer, provide evidence of any contracts made on its behalf.
4. ROLE AS PRINCIPAL
Where requested by the Customer, 1UP CARGO INC. may
(a) issue a transport document or electronic record by which it as principal undertakes carriage of particular goods; or
(b) guarantee in writing proper performance of the terms of any contract between the Customer and a third party whose services 1UP CARGO INC. has engaged on behalf of the Customer.
Where it issues a transport document or electronic record or provides a guarantee, the rights and obligations of 1UP CARGO INC. will be governed by the special conditions therein in addition to these conditions, and in any event, 1UP CARGO INC. 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. If there is any inconsistency with these provisions, the special conditions prevail.
5. SERVICES REQUIRING SPECIAL ARRANGEMENTS
The Customer must give instructions in writing to 1UP CARGO INC. a reasonable time before the tender of goods for storage or transport where it requests 1UP CARGO INC. to:
(a) arrange for the departure or arrival of goods before specific dates;
(b) arrange for goods to be carried, stored or handled separately from other goods;
(c) arrange for the transport of goods that may taint or affect other goods, or may harbour or encourage vermin or pests;
(d) make a declaration of value or special interest in delivery to any carrier or terminal;
(e) direct carriers or delivery agents to hold goods until payment of any amount or until surrender of a document;
(f) arrange for the transport of goods of unusual high value, luxury goods, currency, negotiable Instruments or securities of any kind, precious metals or stones; antiques or art; human remains, livestock or plants, or any other comparable cargos.
Where for any reason it does not accept such instructions, 1UP CARGO INC. must promptly so advise the Customer by any means of communication used in the ordinary course of business. If it continues to use 1UP CARGO INC. ’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 1UP CARGO INC. ’s negligence or not.
6. 1UP CARGO INC. ’S GENERAL RESPONSIBILITIES
(A) 1UP CARGO INC. shall exercise reasonable care in the discharge of its obligations including the selection and instruction of third parties that provide any services engaged on behalf of the Customer.
(B) 1UP CARGO INC. shall arrange transport and any related services within a reasonable time after receiving the Customer’s instructions.
(C) If it has reasonable grounds for departing from any of the Customer’s instructions, 1UP CARGO INC. 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.
(D) The Goods remain at the risk of the Customer during the Services and the Company will have no liability to the Customer in connection with loss or physical damage to the Goods unless such loss or damage is solely attributable to negligence by the Company in the provision of the Services to the Customer.
(E) The Company is not otherwise responsible in tort, contract or bailment or otherwise for any loss of, damage to a deterioration of the Goods or misdelivery, failure to deliver or delay in delivery of the Goods.
(F) In no circumstance is the Company liable for any loss suffered by the Customer in connection with the Goods or the services that is an indirect loss including losses arising from delay or loss of market. All delivery, pick up and transit times are estimated and may be affected by circumstances outside 1UP CARGO's control. including but not limited to weather conditions, port congestion, terminal and road traffic and may be changed without advance notice.
7. CUSTOMER’S GENERAL RESPONSIBILITIES
(A) The Customer shall be deemed to be competent and to have reasonable knowledge of matters affecting the conduct of its business, including terms of purchase and sale, the need for insurance and the extent of coverage available for the type of goods being tendered for shipment, the need to preserve and retain documentation, the need for care to avoid transmitting viruses by electronic communications, the need for confidential handling of information relating to high value goods, and all other matters relating thereto.
(B) The Customer warrants that all information in whatever form relating to the general and dangerous character of the goods, their description, bar-coding, marks, number, weight, volume and quantity of the goods, as furnished by the Customer or on its behalf, was accurate and complete at the time the goods were taken in charge by 1UP CARGO INC. or any third party whose services it has engaged. The Customer further undertakes to provide independent confirmation of such particulars on the request of 1UP CARGO INC. .
8. CUSTOMER’S RESPONSIBILITY FOR PACKAGED AND CONTAINERIZED GOODS
(A) Except where 1UP CARGO INC. 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.
(B) Unless 1UP CARGO INC. has accepted instructions to arrange for or to perform the loading of a transport unit by its employees, the Customer warrants that:
(a) the transport unit has been properly and competently loaded;
(b) the goods are suitable for carriage in or on the transport unit; and
(c) the transport unit is in a suitable condition to carry the goods loaded therein (save to such extent as 1UP CARGO INC. has approved the suitability of the transport unit).
(C) The charges of the Company shall be considered earned as soon as the Goods are delivered to the Company and, except as required by law, none of those charges will be refunded. 1UP CARGO INC. may charge by weight, measurement or value and may at any time reweigh, remeasure or revalue or require the Goods to be reweighed, remeasured or revalued and charge proportional additional charges accordingly. Except as required by law, the Customer is and remains responsible to 1UP CARGO INC. for all its proper charges whether or not the Goods are delivered and/or the Services are provided as instructed and whether or not they are damaged.
9. QUOTATIONS AND INVOICING
A) 1UP CARGO INC. 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 1UP CARGO INC. ’s gross profit for its services. A Customer agrees that 1UP CARGO INC. is an agent as provided in Section 1 where the Customer
(a) accepts a fixed price quotation, or
(b) does not within thirty days after receipt of the invoice object to 1UP CARGO INC. charging a fixed price for its services.
(B) Quotations are given on the basis of immediate acceptance and are subject to withdrawal or revision. Unless otherwise provided in the quotation 1UP CARGO INC. may, after acceptance, revise quotations or charges upon notice in the event of changes beyond 1UP CARGO INC. ’s control, including changes in exchange rates, rates of freight, carrier surcharges, or any charges applicable to the goods.
10. CHARGES COLLECT SHIPMENTS
When goods are accepted or dealt with upon instructions to collect freight, duties, charges or other expenses from the consignee or any other person, the Customer shall remain responsible for the same if they are not paid by such consignee or other person immediately when due.
11. CHANGED CIRCUMSTANCES/FAILURE TO TAKE DELIVERY
If events or circumstances, including a Customer’s failure to take delivery, occur that affect performance of the Customer’s mandate, 1UP CARGO INC. shall take reasonable steps to obtain the Customer’s further instructions. If for whatever reason it does not receive timely instructions, 1UP CARGO INC. may
(a) store the goods at the sole risk and expense of the Customer, or
(b) sell the goods immediately and without further notice, and hold any net proceeds for the account of the Customer or
(c) authorize any third party to abandon carriage and make the Goods or any part of them available to the Customer at a place that is reasonable in the circumstances.
12. DANGEROUS GOODS
(A) 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 1UP CARGO INC. . The Customer undertakes to mark the goods and the outside of any packages or container in which they may be placed to comply with any laws or regulations that may be applicable during the carriage. In the case of goods where the place of receipt is a point within Canada, the Customer further warrants that the goods, the packaging and marking thereof comply in all respects with the provisions of any legislation or regulations governing the transportation of dangerous goods.
(B) If its fails to comply with the requirements of sub-clause (A), the Customer shall indemnify 1UP CARGO INC. 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 1UP CARGO INC. .
(C) Goods which in the opinion of 1UP CARGO INC. 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 1UP CARGO INC. .
13. INSURANCE
(A) The Customer must give 1UP CARGO INC. instructions in writing to arrange insurance on its goods a reasonable time before the tender of goods for storage or transport. 1UP CARGO INC. may carry out these instructions by declaring the value of the goods under an open marine cargo policy taken out by 1UP CARGO INC. , and, upon request, provide a certificate or declaration of insurance, or other evidence of insurance. The coverage on goods so declared is subject to the terms and conditions of the policy. 1UP CARGO INC. is not liable if the Customer for any reason whatsoever fails to recover a loss in whole or in part from the insurer under the policy, even though the premium charged by the insurer is different from 1UP CARGO INC. ’s charges to the Customer.
(B) If coverage under its open marine cargo policy is not satisfactory, 1UP CARGO INC. will recommend an insurance broker to arrange insurance appropriate to the Customer’s needs. After making this recommendation, 1UP CARGO INC. has no further duty regarding insurance, and no liability for loss of or damage to the goods during transport or storage that could have been covered by insurance on the goods, whether such loss or damage has been caused or contributed to by its negligence or breach of these conditions, or otherwise.
14. NOTIFICATION OF CLAIMS
The Customer on its own behalf and on behalf of the owner of the goods shall notify 1UP CARGO INC.
In writing of any claim
(a) in case of loss and/or damage to goods within 7 days of the completion of transit,
(b) in case of delay in delivery or non-delivery within 45 days of the date when the goods should have been delivered,
(c) In any other event the Company shall be discharged from all liability whatsoever in connection with the provision of the Services and/or the Goods unless suit is brought and notice given within 45 Days of the provision of the Services or delivery of the Goods or when the Services should have been provided or the Goods should have been delivered.
If a claim was not discoverable by the exercise of reasonable care within the applicable time period, the Customer must give notice forthwith after receiving information as to events that may give rise to a claim. Failing notice as required by this clause, the claim is barred and no action can be brought against 1UP CARGO INC. to enforce the claim.
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15. LIMITATION OF LIABILITY
(A) Except as required by law, 1UP CARGO INC. shall not be responsible in negligence or contract or otherwise for loss, damage, costs, fines or penalties incurred by the Customer or any other person resulting from or arising out of or in connection with any quotation, advice, statement, representation or information given or made by or on behalf of 1UP CARGO INC. to the Customer or others as to the classification of or any matter material to the valuation of or the liability for or the amount, scale or rate of customs and/or excise duty or other impost, tax or rate charged in respect of the Goods or any cargo whatsoever. In giving or making any such quotation, advice, statement, representation or information the Company relies solely on the particulars provided by the Customer which warrants that those particulars accurately and completely describe all aspects of the Goods or cargo and the transaction(s) relating to the Goods or cargo.
(B) In all cases where liability of 1UP CARGO INC. has not been excluded, whether by these Conditions, by statute or by international convention or otherwise, the liability of the Company whatsoever and howsoever arising is limited to 7,500 SDR (SDR= IMF Special Drawing Right) per shipment or 1 SDR per kilo of the gross weight of the goods that are subject of the claim; whichever is less.
(C) Without prejudice to any other conditions herein or other defences available to the Company, in no circumstances whatsoever shall the Company be liable to the Customer or owner for consequential or indirect loss, including losses arising from delay or loss of market.
Upon the Customer’s written request, the Company may accept liability in excess of
these limits in writing, provided the Customer pays 1UP CARGO INC. additional charges for such increased liability.
(D) . 1UP CARGO INC. shall not be bound by any agreement purporting to waive or vary these Conditions unless such agreement to so waive or vary shall be in writing and signed by an executive officer of the Company.
16. INDEMNITY
The Customer shall indemnify 1UP CARGO INC. 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
(a) for which 1UP CARGO INC. may be held responsible unless caused or contributed to by any negligence or breach of duty of 1UP CARGO INC. , or
(b) in excess of the liability of 1UP CARGO INC. in accordance with these Conditions,
resulting from or connected with the actions of 1UP CARGO INC. related to any service to which these Conditions apply.
17. SET OFF AND COUNTERCLAIM
The Customer shall pay to 1UP CARGO INC. in cash, or as otherwise agreed, all sums immediately when due without reduction or deferment on account of any claim, counterclaim or set off.
18. RIGHT OF DETENTION AND LIEN
All goods (and documents relating to goods) shall be subject to a particular and general lien and right of detention for monies owing either in respect of such goods, or for any particular or general balance or other monies owed, whether then due or not, by the Customer, sender, consignee or owner of the goods to 1UP CARGO INC. . If these monies remain unpaid for 10 days after 1UP CARGO INC. 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 1UP CARGO INC. , and the net proceeds applied on account of the monies owing. 1UP CARGO INC. will not be liable for any deficiencies or reduction in value received on the sale of the goods nor, will the Customer be relieved from the liability merely because the goods have been sold.
19. 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 the result of an event or circumstance (a “force majeure” event) that prevents the Company from performing one or more of its contractual obligations to the extent that the Company is affected by an impediment which is beyond its reasonable control, such impediment could not reasonably have been foreseen and could not reasonably been avoided or overcome by the Company acting in a commercially reasonable manner. The following events shall be presumed to be a “force majeure” event: a) war (whether declared or not), hostilities, invasion, acts of foreign enemies, extensive military mobilization; b) civil war, riot, rebellion and revolution, military or usurped power, insurrection, acts of terrorism, sabotage or piracy; c) currency and trade restriction, blockade, embargo, sanction; d) act of government authority whether lawful or unlawful, compliance with any law or governmental order, expropriation, seizure of works, requisition, nationalization; e) plague, epidemic, pandemic, natural disaster, extreme natural event, extreme weather event, nuclear, chemical or biological contamination; f) explosion, fire, destruction of equipment, prolonged break-down of transport, telecommunication, information system or energy; g) general labour disturbance such as boycott, strike and lock-out, go-slow, occupation of factories and premises; or any other event or circumstance beyond the Company’s control. 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 Company is entitled to full remuneration and indemnity for any charges so incurred or applied.
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20. TIME BAR
1UP CARGO INC. shall, unless otherwise expressly agreed, be discharged of all liability under these conditions unless suit is brought within 9 months from
(a) the date of delivery of the goods for claims to damage to goods, or
(b) the date when the goods should have been delivered for claims for delay in delivery or loss of goods.
With respect to loss or damage other than loss of or damage to the goods, the 9 months period shall be counted from the time when the act or omission of 1UP CARGO INC. giving rise to the claim occurred.
21. CUSTOMARY REMUNERATION RECEIVED FROM THIRD PARTIES
1UP CARGO INC. 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.
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22. APPLICABLE LAW AND JURISDICTION
These Conditions shall be governed by the laws of Canada and of the province within Canada in which 1UP CARGO INC. has its principal place of business. 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.
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23. Default
In the event of any default under this Agreement, you, the Customer indemnify the Company for all damages and costs incurred as a result of your default, including but not limited to all debt recovery and legal costs incurred by the Company in seeking recovery of all unpaid amounts from you including costs incurred from an Canadian legal practitioner, legal practitioner outside of Canada and any other third party engaged for the purpose of seeking recovery of the debt from you. You agree that the Company is entitled to include a claim for all such damages. Costs and expenses in any claim pursued against you. 1UP Cargo reserves the right to charge an annualized interest rate of 24.5% on any outstanding debtor monies owing to 1UP Cargo, from the due date until the date of settlement