LIMITATIONS OF LIABILITY
Customers of National Cargo Services Inc. are advised that all Shipments, Goods and merchandise and transportation equipment under our control or custody are handled on your behalf with expressed limitations of liability. Customers should familiarizes themselves with National Cargo Services Inc.’s Terms and Conditions and the specific liability limitations therein.
National Cargo Services Inc. - TERMS AND CONDITIONS.
Descriptive headings herein are inserted solely for convenience and are not to be considered part of these Terms and Conditions or to be used as an aid to interpretation.
The Goods described in the Receipt are stored and handled in accordance with the rates and charges provided in the rate quotation or tariff and is subject to the following Terms and Conditions:
1.1 In these Terms and Conditions:
(a) “Company” or “Company’s” means National Cargo Services Inc. and its subsidiaries, affiliates, agents, principles, employees, contractors, successors and assigns;
(b) “Company’s Facility” means the buildings, sheds, docks, overhangs, yard space and fenced areas, including vehicles transportation equipment parked therein as well as other off site facilities controlled by the Company;
(c) “Customer” means the person or the entity directly requesting the Company’s Services as well as the person’s or entity’s agents, principals, suppliers employees, contractors, successors, assigns, and the carrier (whether originating, interlining or delivering), owner, consignor and consignee of goods with respect to which the Company is to provide Services;
(d) “Company Charges” when used herein shall mean all costs, expenses, fees, interest and charges of any kind whatsoever which relate to the provision of Services to the Customer together with all costs, expenses, fees, interest and charges of any kind, including without limitation lawyer’s fees and disbursements on a solicitor and client basis, incurred by and on behalf of the Company in collecting payment from the Customer or otherwise enforcing the Company’s rights under these Terms and Conditions;
(e) “Goods” means the Customer’s goods, property, packages, vehicles, trailers, containers and other equipment, and all contents thereof;
(f) “Loss or Damage” means all loss or damage to Goods, property or persons suffered by the Customer including, but not limited to, loss or damage caused by heat, heating, decay, mildew, mould, dampness, fermentation, smoke, dust, oil, discoloration, evaporation, smell or taint from or contact with other goods or fuel, putrefaction, rust, water of any kind, sweat, rain or spray, change of character, affects of climate, drainage, leakage, wastage, loss of weight, breakage, splitting, bending, disclosure of its nature, or from any loss or damage arising from the nature of the goods or the insufficiency, soiling, injury to, distortion, pressing or bursting of packages, adherence of coverings, or failure to properly protect the goods, or inaccuracy or obliteration or errors in or insufficiency or absence of marks, number, address or description of Goods, including any damage occurring before receipt, theft, wilful misconduct, gross negligence, negligence, fundamental breach of contract, breach of contract, breach of statutory obligations or duties by the Company;
(g) “Services” means services provided by or on behalf of the Company to the Customer other than the lease of office, parking or warehouse space pursuant to a written lease. Services include, but are not limited to: import and export of Goods, container loading and unloading, Canada Customs Sufferance Warehousing, third party warehousing and distribution;
(h) “Shipment” when used herein shall mean a trailer, container, pallet or package; and
(i) “Receipt” means the devanning report, destuffing, stuffing report and/or the warehouse receipt provided to the Customer by the Company describing the Goods being stored and/or handled by the Company.
2. CONTRACT FOR SERVICES
2.1 These Terms and Conditions are effective January 1, 2010 , and shall continue in effect until and unless replaced by other Terms and Conditions provided to the Customer by the Company and bearing a later effective date.
2.2 The Receipt and rate quotation including accessorial charges endorsed on or attached thereto must be accepted by the Customer within five (5) days from the proposal date by signature of the Customer. In the absence of written acceptance the act of tendering the Goods described on the Receipt to the Company shall constitute acceptance by the Customer.
2.3 In the event that Goods tendered for Services do not conform to the description contained in the Receipt the Company may refuse to accept such Goods. If the Company accepts such Goods, the Customer agrees to rates and charges as may be assigned and invoiced by the Company and to be bound by all of the Terms and Conditions set out herein.
2.4 This contract between the Customer and the Company may be cancelled by either party upon thirty (30) days written notice. At the time of cancellation, all amounts due from the Customer to the Company become immediately due and payable and the Goods are subject to the Company’s lien as set out in Section 21.1. Both the provision of Services and the rate charged by the Company are based upon the Customer’s acceptance of, and are subject to, these Terms and Conditions.
2.5 The Customer agrees that in the event the Company is to be considered a warehouse within the meaning of any Warehouse Receipts or Repair and Storage Liens Legislation, the Company’s duty of care, diligence and vigilance will be determined on the basis that these Terms and Conditions set out the circumstances in which the nature and extent of such duties are to be determined and the expectation of the Company and the Customer as to the nature and extent of their respective rights and responsibilities, and that to the extent such statutory duties may be varied by contract, such duties are hereby varied to conform herewith.
3.1 Acceptance by the Company includes any Goods received at or transported to the Company’s Facility. Acceptance by the Company is on a thirty (30) day term basis, renewable each month by continued mutual agreement, or unless otherwise stated in the contract, Receipt or proposal signed by an Officer of the Company.
4. BASIS OF CHARGES
4.1 Any charge made with respect to the Goods covered by the Receipt or these Terms and Condition shall conform to the Company’s quotation and/or tariff in effect at the time the Service is performed. Storage rates are per calendar month or part thereof unless otherwise stated in the Receipt.
5. DELIVERY NOTIFICATION
5.1 The Customer shall take delivery of the Goods at the Company’s place of business within forty-eight (48) hours of the earlier of either:
(a) notification by the Company of the Goods availability, such notification may be either oral or written at the Company’s option and to be provided to the Customer’s last know address/phone number; or
(b) the expiration of the time the Company agreed to hold the Goods, if any.
After such time all liability of the Company for Loss or Damage shall cease. The Customer’s liability for the Company’s charges shall continue.
6. LIABILITY AND LIMITATION OF DAMAGES
6.1 The Customer acknowledges that the Company does not inspect the Goods it receives for handling, storage, carriage, stuffing, destuffing or otherwise upon arrival at the Company’s Facility, and the contents and condition and quality of such Goods are unknown to the Company.
6.2 In the event the Customer is a party to or a beneficiary of any contract which applies whether in whole or in part and whether by reference or by implication to the Company (hereinafter “Other Terms” ), and such Other Terms contain limitations or exemptions from liability, the Customer agrees that the Company’s liability shall be determined by such Other Terms and the Customer hereby agrees to extend the benefit of such Other Terms to the Company whether or not the Company was a party to the other contract, if the Company so elects. Such election shall be made within sixty (60) days of the Company’s receipt of particulars of such Other Terms and, failing such election these Terms and Conditions shall govern.
6.3 The Company shall not be liable for any loss or injury to Goods stored, handled, transloaded, staged, assembled, crated, braced, temperature maintained and controlled, labelled, packaged, sealed or otherwise serviced by the Company, however caused unless such loss or injury resulted from the failure by the Company to exercise such care in regard to them as a reasonably careful person would exercise under like circumstances, and the Company is not liable for damages which could not have been avoided by the exercise of such care.
6.4 In connection with all Goods, the Customer agrees that the legal liability of the Company whether negligent or not, shall be strictly limited to the lessor of $50.00 CDN per item or $500.00 per shipment whichever is less, unless the Customer specifically requests a higher limit in writing and declares an excess in value, in which case the Company may at its option, accept liability and assess an additional charge for costs of storage, handling charge or other applicable rate.
THE COMPANY IS NOT RESPONSIBLE TO INSURE GOODS AGAINST LOSS OR DAMAGE, OR INJURY HOWEVER CAUSED.
7. LIABILITY FOR CONSEQUENTIAL DAMAGES
7.1 Under no circumstances shall the Company be liable to the Customer for any loss of profits, earnings, lost economic opportunities, special, indirect, incidental or other consequential damages of any kind which arise out of the Company’s delay, partial delivery, misshipment, non delivery, or other negligence, gross negligence, breach of contract, fundamental breach of contract, breach of statutory obligation or duty or otherwise.
8. LIABILITY FOR REFRIGERATED CONTAINERS
8.1 Under no circumstances will the Company be liable to the Customer for Loss or Damage occasioned by the loss or diminution of refrigeration of Goods. The Company does not undertake to check gauges or maintain the operation of refrigerated trailers or containers.
9. LIABILITY FOR LOSS OR DAMAGE
9.1 Under no circumstances will the Company be liable to the Customer for Loss or Damage caused by an act of God, the Queen’s or public enemies, riots, act of terrorism, strikes, lock outs, a defect or inherent vice in the Goods, act or default of the Customer, quarantine, difference in weights caused by natural shrinkage, seizure under legal process, civil commotions, rats, mice, vermin, water damage, or temperature change.
10. LIABILITY FOR GOODS ACCESSIBLE TO CUSTOMERS
Under no circumstances shall the Company be liable for Loss or Damage where the Customer has access to its goods while they are in the custody or control of the Company.
11. LIABILITY FOR MISSHIPMENT
11.1 If the Company negligently misships Goods, the Company shall pay the reasonable transportation charges incurred to return the misshiped goods to the Company’s Facility. If the consignee fails to return the Goods, the Company’s maximum liability shall be for the lost or damaged Goods as specified in Section 6.4 above and the Company shall have no liability for damages due to the consignee’s acceptance or use of the Goods whether such Goods be those of the Customer or another.
12. MYSTERIOUS DISAPPEARANCE
12.1 The Company shall not be liable for loss of Goods due to inventory shortage or unexplained or mysterious disappearance of Goods unless the Customer establishes such loss occurred because of the Company’s failure to exercise care required of the Company under Section 6.3 above. Any presumption of conversion imposed by the law shall not apply to such loss and a claim by the Customer of conversion must be established by affirmative evidence that the Company converted the Goods to the Company’s own use.
13. RIGHT TO STORE GOODS
13.1 The Customer represents and warrants that the Customer is lawfully possessed of the Goods and has the right and authority to store then with the Company. The Customer agrees to indemnify and hold harmless the Company for all loss, cost and expense (including lawyer’s fees and disbursements on a solicitor and client basis) which the Company pays or incurs as a result of any dispute or, litigation, whether instituted by the Company or others, respecting the Customer’s right title or interest in the Goods. Such amounts shall be charged in relation to the Goods and subject to the Warehouseman’s Lien Act.
14. ACCURATE INFORMATION
14.1 The Customer will provide the Company with information concerning the stored Goods which is accurate, complete and sufficient to allow the Company to comply with all the laws and regulations concerning the storage, handling and transporting of the stored Goods. The Customer will indemnify and hold the Company harmless for all loss, cost, penalty and expense (including lawyer’s fees and disbursements on a solicitor and client basis) which the Company pays or incurs as a result of the Customer failing to fully discharge this obligation.
15. DECLARED VALUE OF GOODS
15.1 Statements contained in any Canada Customs invoice, bill of lading, delivery receipt, shipping bill or other similar document are not conclusive and shall not be binding on the Company.
15.2 No Canada Customs invoice, bill of lading, delivery receipt, shipping bill or other similar document forms a record of the contract between the Company and the Customer.
15.3 The Company does not undertake to check the contents of the Shipment, and any acknowledgements of the Company or anyone acting on its behalf contained on or expressed in any form or document executed by, or on behalf of, or provided to the Company, that such shipment was received by the Company in apparent good order or condition shall not be binding on the Company in the event of Loss or Damage suffered by the Customer. The burden of proving that the Company received the Goods in good order and condition shall be on the Customer.
15.4 The Company’s piece count when conducted in the presence of a representative of the Customer shall be conclusive evidence of the number of such pieces. Under no circumstances shall the Company be bound by the shippers load and count.
15.5 The Company does not undertake to the Customer to seal or re-seal any vehicle, package, container or trailer, and the Company’s failure to so seal shall not constitute a breach of contract, negligence, or breach of any statutory obligation or duty as between it and the Customer.
15.6 The description of the Goods and the particulars concerning the packages as stated on the face of the Receipt are those of the Customer, and the Company does not, by the issuance of the Receipt, agree that such disposition is correct, or admit the existence good order and condition of the goods described, or of the contents of any package or other shipping unit. The Customer shall be liable for, and shall indemnify the Company in respect of any injury, Loss or Damage arising from inaccuracies or omissions in the leading mark, numbers, quantity, weight, gauge, measurement, contents, nature, quality or value as declared by the Customer, including in the case of partial loss of any Goods to which the Customer has failed to state the value, any amount in excess of the pro-rata portion of the agreed value per package which the Company may be required to pay the Customer or third person.
16. HAZARDOUS AND POLLUTING GOODS
16.1 “Hazardous or polluting goods” means any substance, produce, material, or goods whether gaseous, liquid or solid which is hazardous, dangerous to or capable of injuring or interfering with human, animal or plant life, or the environment and, in particular includes any substance, product, material, waste or good that is defined as a waste, toxic substance, hazardous substance, polluting substance, special waste or dangerous good in or pursuant to any law, regulation, guideline or order of any authority of competent jurisdiction.
16.2 Hazardous or polluting goods shall not be delivered to the Company’s Facility unless the Company has previously agreed in writing to accept such Hazardous or polluting goods.
16.3 The Customer shall indemnify and save harmless from and against any and all direct and indirect claims, actions, damages, liabilities and expenses in connection with loss of life, personal injury, or damaged property resulting by any measures whatsoever from such Hazardous or polluting goods.
16.4 The Company shall have the right to require the removal from its premises or the return to the Customer of any good or substance of any kind or description at any time, without stated reason or notice of not less than thirty (30) days from the end of the current storing month such removal or return to be at the Customer’s expense.
16.5 The Customer warrants that all Goods entrusted to the Company are not dangerous, perishable, or adversely affected by temperature changes or other causes incident to general storage, and have been packed or prepared to accommodate the equipment, personnel procedures and facilities normally utilized by the Company for the handling and storage of Goods, and that all hazards or perils associated with such Goods have been expressly disclosed in writing to the Company.
17. NOTICE OF CLAIM AND FILING OF SUIT
17.1 Claims by the Customer and all other persons must be presented in writing to the Company within a reasonable time, and in no event longer than either sixty (60) days after delivery of the Goods by the Company or sixty (60) days after the Customer of record or the last known holder of the Receipt or these Terms and Conditions is notified by the Company that loss or injury to part or all of the Goods has occurred, whichever time is shorter.
17.2 No claim for Loss or Damage may be brought against the Company by or on behalf of the Customer unless the Customer:
(a) has first given particulars of the claim, including without limitation, the monetary value of Loss or Damage claimed, the date, the place and time of the Loss or Damage alleged, the identity and address of all persons who have handled such goods from the point of origin to the point of destination, and the means by which the Customer believes such Loss or Damage occurred, in writing to the Company within five (5) business days from the time the Customer receives the Goods from the Company or the Company is unable to produce the Goods; and
(b) the Company’s Charges for its Services to the Customer have been paid in full.
18.1 The Customer tendering the Goods and/or Shipment(s) agrees to indemnify the Company and hold the Company harmless for any claims for Loss or Damage, misshipments or loss of profits detention or other tortuous actions brought on by any other party claiming a beneficial interest in the Goods and/or Shipment(s) tendered or relating to the transportation equipment or terminal facilities utilized, and the costs of claims, suits, actions, or causes of actions, including reasonable attorney fees incurred by the Company, in its defence or its exercising such exclusion of liability or litigating any actions by other parties connected with the Goods and/or Shipment, equipment or terminal facilities utilized.
19. SEVERABILITY AND WAIVER
19.1 If any provision of this receipt, or any application thereof, should be construed or held to be void, invalid or unenforceable, by order, decree or judgement of a court of competent jurisdiction, the remaining provisions of this receipt shall not be affected thereby but shall remain in full force and effect.
19.2 The Company’s failure to require strict compliance with any provision of these Terms and Conditions shall not constitute a waiver or estoppel to later demand strict compliance with any provision of these Terms and Conditions.
19.3 The provisions of these Terms and Conditions shall be binding upon the Customer’s heirs, executors, successors and assigns and cannot be modified except in writing signed by an Officer of the Company and the Customer.
20.1 In the absence of express written provision signed by the Company to the contrary, the Company shall be entitled to look for payment of the Company’s Charges for its Services to the Customer, whether the Customer is the owner of the Goods with respect to which the Company’s Services have been provided or not, and notwithstanding any term in any bill of lading, delivery receipt, shipping bill or other contractual document which states, or has the effect of providing, that some person other than the Customer is responsible for payment of the Company’s Charges.
20.2 Payment of the Company’s Charges is due to the Company in Canadian dollars in full without any set off or deduction whatever, in cash or by certified cheque or money order, forthwith upon the Company’s notification of the Customer pursuant to the delivery notification.
21. WAREHOUSER’S LIEN
21.1 All advances and charges are due and payable prior to delivery or transfer of the stored Goods. The Company shall have a lien upon the security interest in all Goods stored at any time heretofore and hereafter deposited by the Customer in any warehouse, facility or property owned or operated by the Company. Such lien and security interest shall be for all charges, advances and expenses in relation to such Goods, whether or not heretofore released from the Company in the event of non-payment of such amounts.
THE COMPANY’S CHARGES DO NOT INCLUDE INSURANCE AGAINST LOSS OR DAMAGE AND NEITHER GOODS NOR THE CUSTOMER ARE INSURED AGAINST LOSS OR DAMAGE BY THE COMPANY.
22.1 The Customer warrants that it has obtained, or has chosen not to obtain, insurance for all Loss and Damage which it may suffer, and on behalf of its insurer(s) the Customer waives the insurer(s) right of subrogation against the Company.
22.2 The Customer’s insurance against Loss or Damage shall contain a cross-waiver of liability and a no-recourse clause in favour of the Company and the Customer warrants that its insurance so provides. The Customer further agrees to look first to the proceeds of such insurance.
22.3 The Customer agrees that the Company shall have the right to provide Services by means of subcontractors and assignees at the Company’s discretion and at locations other than the Company’s principle places of business without notice to the Customer and that these Terms and Conditions shall apply to all such persons, entities and places.
23. ENTIRE CONTRACT
23.1 These Terms and Conditions together with the Receipt constitute the entire contract between the Company and the Customer and shall govern the relationships between the Company and the Customer, notwithstanding any term provision of any receipt, bill, correspondence, or standard form of contract to the contrary.
23.2 The Customer acknowledges and agrees that neither the Company nor its servants or agents have made any representations as to the safety, security, fitness, suitability or adequacy of the Company’s Services or the Company’s Facilities, other than those expressed herein, and the Customer acknowledges and agrees that it has examined the Company’s Services and the Company’s Facilities and has satisfied itself with respect to the same.
23.3 By requesting the Company’s Services, the Company agrees to be bound by these Terms and Conditions and warrants that it has the authority to so agree on behalf of all parties included in the definition of Customer.
24. GOVERNING LAW
These Terms and Conditions shall be interpreted according to the laws of British Columbia and the federal laws applicable therein. Any disagreements arising out of these Terms and Conditions shall be adjudicated in the Province of British Columbia, and the Customer hereby attorns exclusively to such jurisdiction.