TERMS AND CONDITIONS FOR

CUSTOMER AND CARRIERS

TRAKKING

1.                Definitions and Tariff

1.1               Definitions

"Carriage " means the whole or any part of the operations and services whatsoever undertaken by the Carrier in respect of the Goods covered under this Transaction order;

"Carrier " means trucking company  on whose behalf this Transaction order has been signed;

"Container " includes any container (including an 20’, 40’, standard or high cube or open top container), trailer, transportable tank, flat rack or pallet or any similar article used to consolidate Goods and any ancillary equipment;

"Customer " includes the Shipper, Consignee, Importer, Exporter, owner, Person owning or entitled to possession of the Goods or of this Transaction order, Receiver, Holder, and anyone acting on behalf of any such person, including but not limited to agents, servants, independent contractors, non-vessel operating common carriers ("NVOCCs"), and freight forwarders;

"Freight " includes all charges payable to the Carrier in accordance with the applicable Tariff(s) and this Transaction order, including storage, demurrage and detention;

"Goods " means the whole or any part of the cargo and any packaging received from the customer and includes any equipment or Container not supplied by or on behalf of the Carrier;

"Holder " means any person for the time being in possession of or entitled to this Transaction order by reason of the consignment of Goods or the endorsement of this Transaction order or otherwise;

"Match back " means the same container will be reused from the import load back to an export load;

"Person " includes an individual, group, company or other entity;

"Place of Delivery " means a place so named overleaf or any other place where the Carrier has contracted to deliver the Goods

Place of Receipt ” means a place so named overleaf or any other place where the Carrier has contracted to receive the Goods;

"Port of Loading " means a port or place so named overleaf or any other port or place where the Goods are loaded onto the Vessel for Carriage;

"Port of Discharge " means a port or place so named overleaf or any other port or place where the Goods are discharged from the Vessel;

"Sub-Contractor " includes owners, charterers and operators of the Vessel or any other vessel (other than the Carrier), sea, water, rail, road, air or other transport operators or carriers, stevedores, terminal operators, warehousemen, and any independent contractors or agents employed by the Carrier in performance of the Carriage and any subcontractor thereof;

"Transaction Order " means this document or transaction, whether issued as a Transaction order of Lading or a Sea Way bill transaction order, and whether issued in paper or electronic form on this Trakking platform

"Vessel " includes the vessel named on the face hereof, and any vessel, lighter, barge, ship, watercraft or any other means of water transport used in whole or in part for Carriage of Goods under this Transaction order;

 

 

 

 2.                 Terms and Conditions

2.1               The terms and conditions provided for in this Transaction order shall apply in any action by or against the Carrier for any loss or damage whatsoever and howsoever occurring (and without restricting the generality of the foregoing, including delay, late delivery and/or delivery without surrender of this Transaction order), whether the action be founded in contract, bailment or in tort.

2.2               The terms and conditions of this Transaction order are separable, and if any term or condition is held to be invalid, null and void, or unenforceable, that shall not affect in any way the validity or enforceability of any other term or condition of this Transaction order.

2.3               The terms and conditions of this Transaction order shall govern the relations between the Carrier and the Customer in respect of the Carriage, whether a Transaction order of Lading is issued or not.

2.4               In no event shall the Carrier be liable for any direct or indirect loss of  profit or any consequential loss whatsoever.

2.6               Where loss or damage is caused partly by a cause for which the Carrier is liable, the Carrier shall be liable only for the portion of the loss or damage proved by the Customer to have resulted from the cause for which the Carrier is liable. The Customer shall indemnify the Carrier (including legal and expert fees and disbursements) when the Carrier pays damages in excess of its share of fault.

2.7               The Carrier does not undertake that the Goods shall arrive at the Port of Discharge or Place of Delivery on/at any particular date or time or to meet any particular market or use, and the Carrier shall in no circumstances be liable for delay or for any indirect or special or consequential loss or damage whatsoever incurred by the Customer.

 

3.                 Carrier’s Responsibility

3.1               The Carrier shall not be responsible for loss or damage to the Goods occurring before the receipt of the Goods by the Carrier or after the delivery of the Goods to the Customer or its designee. The Carrier shall be liable for loss or damage to the Goods occurring between the time when he receives the Goods and the time of delivery only to the extent set out below.

3.2               If the stage of the Carriage during which the loss or damage occurred can be proved, the liability of the Carrier shall be determined:

(a)                if the loss or damage is proved to have occurred during the trucking Carriage

(b)                where the loss or damage is proved not to have occurred during the trucking carriage, by the provisions contained in any international convention or national law which provisions,

(i)                 cannot be departed from by private contract to the detriment of the Customer; and

(ii)               would have applied if the Customer had made a separate and direct contract with the Carrier in respect of the stage of the Carriage during which the loss or damage occurred and had received as evidence thereof any document which must be issued in order to make such international convention or national law applicable; and

(iii)             would have been applicable if the contract referred to in (ii) above had been governed by the internal law of the Province of BC where the loss or damage occurred.

3.3               If the stage of the Carriage during which the loss or damage occurred cannot be determined, the Carrier shall be relieved of liability for any loss or damage if such loss or damage was caused by:

(i)                 act of God,

(ii)               act of War,

(iii)             act of public enemies,

(iv)              arrest or restraint of princes, rulers or people or seizure under legal process,

(v)                quarantine restrictions,

(vi)              an act or omission of the Customer, his agent, representative or sub-contractor,

(vii)            compliance with instructions of any Person entitled to give them,

(viii)          insufficiency of or defective condition of packing or marking,

(ix)              handling, loading, stowage or unloading of the Goods by or on behalf of the Customer,

(x)                inherent vice of the Goods,

(xi)              latent defects not discoverable by due diligence,

(xii)            fire, unless caused by the actual fault or privity of the Carrier,

(xiii)          strike, lock-out, stoppage or restraint of labour, from whatever cause, whether partial or general,

(xiv)          riots and civil commotions,

(xv)            any cause or event which the Carrier could not avoid and the consequences whereof he could not prevent by the exercise of reasonable diligence.

3.4               The burden of proving prima facie that the loss or damage was due to one or more of the causes or events specified in Clause 3.3 shall rest upon the Carrier, save that if the Carrier establishes that the loss or damage could be attributed to one or more of the causes or events specified in Clause 3.3 other than (vi), (vii), (viii), (ix), (x) or (xv), it shall be presumed that it was so caused. The Customer shall, however, be entitled to prove that the loss or damage was not, in fact, caused either wholly or partly by one or more of these causes or events.

3.5               If the Carrier is requested by the Customer to procure carriage by an inland carrier beyond the Place of Delivery (or the Port of Discharge if no Place of Delivery is named) such carriage shall be procured by the Carrier as agent only to the Customer and the Carrier shall have no liability whatsoever for such carriage or the acts or omissions of such inland carrier.

3.6               Where this Transaction order is issued as a Sea Waytransaction order, this Transaction order shall have effect subject to the CMI Uniform Rules for Sea Waytransaction orders which are deemed to be incorporated herein; provided, however that if any provisions of such Rules are inconsistent with those of this Transaction order, the latter shall prevail.

 

4.                 Limitation of Liability

4.1               Nothing in this Transaction order shall operate to limit or deprive the Carrier of any statutory protection or exemption or limitation of liability authorized by any applicable laws, statutes or regulations of any country.

4.2               It is agreed by the Customer that the Carrier qualifies and shall be regarded as a person entitled to limit liability under any applicable convention for the Limitation of Liability for Road Claims.  Subject to any law compulsorily applicable to the Carriage to the contrary, and save to that extent, the fund to which the Carrier may limit its liability in respect of all claims arising out of an incident shall be that part or proportion of the limitation fund applicable to the actual carrier that is available for the Carrier's claims against the actual carrier.

4.3              Except as provided in Clauses 3.2(a), 3.2(b), if Clause 3.3 operates, total compensation shall in no circumstances exceed 0.01 CAD per kilo of gross weight of the Goods lost or damaged.

4.5               The Customer agrees and acknowledges that the Carrier has no knowledge of the value of the Goods and higher compensation than that provided for in this Transaction order may be claimed only when, with the consent of the Carrier, (i) for multimodal shipments to or from the Canada where Canada inland carriage is undertaken, the Customer elects to avoid any liability limitation provided herein by prepaying extra freight and opting for full liability by complying with the terms in the Carrier's Tariff(s);

 

5.                 Sub-Contracting

5.1               The Carrier shall not be entitled to subcontract the whole or any part of the Carriage on any terms whatsoever, including liberty to further sub-contract.

 

6.                 Freight

6.1               Freight shall be deemed fully earned on receipt of the Goods by the Carrier, whether the Goods are lost or not, and shall be paid and non-returnable in any event.

6.2               The Customer acknowledges and accepts the stipulations concerning currency in which the Freight is to be paid, rate of exchange, devaluation and other contingencies relative to Freight in the applicable Tariff(s).

6.3               Freight has been calculated based on particulars furnished by or on behalf of the Customer. If such particulars are incorrect, it is agreed that a sum equal to double the correct Freight less the Freight charged shall be payable as liquidated damages to the Carrier, provided that the Carrier's Tariff(s) does not stipulate otherwise. The Customer shall indemnify the Carrier for all penalties and legal fees resulting from such incorrect particulars being furnished.

6.4               All Freight shall be paid to the Carrier by the Customer through the Trakking platform without any set-off, counter-claim, deduction or pardon either at or prior to the time agreed for payment or at the latest before delivery of the Goods.  Any additional detentions, demurrage, or related charges to the Transaction order will be at the expense of the Customer unless agreed otherwise between Customer and the Carrier.

6.5               The Customer shall be liable to the Carrier for the payment of all Freight and/or expenses including but not limited to court costs, legal fees and expenses incurred in collecting monies due to the Carrier. 

7.                 Lien

7.1               The Carrier and/or TSC Trakking Software Corporation shall have a lien on the Goods and any documents relating thereto, which shall survive delivery, for all sums payable to the Carrier under this contract and for general average contributions, to whomsoever due. The Carrier shall also have a lien against the Customer on the Goods and any documents relating thereto for all sums due from the Customer to the Carrier under any other contract. For recovering any sums due, the Carrier shall have the right to sell the Goods by public auction or private sale, without notice to the Customer and the Carrier’s lien shall extend to cover the cost of recovering any sums due.

 

8.                 Description of Goods

8.1               This Transaction order shall be prima facie evidence of the receipt by the Carrier in apparent external good order and condition, (except as otherwise noted), of the total number of Containers or other packages or units enumerated in the box entitled "Carrier's Receipt".

8.2               No representation is made by the Carrier as to the weight, contents, measure, quantity, quality, description, condition, marks, numbers or value of the Goods and the Carrier shall be under no responsibility whatsoever in respect of such description or particulars.

8.3               The Customer warrants to the Carrier that the particulars relating to the Goods as set out overleaf have been checked by the Customer on receipt of this Transaction order and that such particulars and any other particulars furnished by or on behalf of the Shipper are accurate and correct. The Customer also warrants that the Goods are lawful goods and contain no contraband, drugs or other illegal substances or stowaways, and that the Goods are adequately packed and prepared for shipment, and will not cause loss, damage, or expenses to the Carrier, the Vessel, or to any other cargo during the Carriage.

 

9.                 Container Packed by Customer

9.1               If the Goods received by the Carrier are in Container(s) packed by or on behalf of the Customer:

(a)                this Transaction order is prima facie evidence of the receipt only of the number of Container(s) as shown herein; and

(b)                the Customer warrants that the stowage of the Goods in Container(s) and their closing and sealing are safe and proper and  that the Goods and the Container(s) are suitable for Carriage in accordance with the terms hereof including Clause 14 and the Carrier’s Tariff(s).

(c)                the Customer shall inspect the Container(s) when furnished by or on behalf of the Carrier, and they shall be deemed to have been accepted by the Customer as being in sound and suitable condition for the Carriage, unless he gives notice to the contrary in writing to the Carrier; and

(d)                if the Container(s) are delivered by the Carrier with seals intact, such delivery shall be deemed as full and complete performance of the Carrier's obligation and the Carrier shall not be liable for any loss of or damage to the contents of the Container(s).

 

10.             Inspection of Goods

10.1           The Carrier shall be entitled, but under no obligation, to open and/or scan any Container or package at any time and to inspect, re-weigh, remeasure, revalue or repack the Goods without notice to the Customer.

10.2           If pursuant to any of the Carrier’s rights under this Transaction order or if by order of the authorities at any place, a Container or package has to be opened and/or seal of a Container broken, the Carrier will not be liable for any loss or damage incurred as a result of any opening, unpacking, inspection, re-weighing, re-measurement, revaluation, or repacking. The Customer shall indemnify the Carrier for the cost of all measures taken as above.

 

11.             Specialized Carriage

11.1           The Customer undertakes not to tender for Carriage any Goods which require refrigeration, ventilation or any other special attention without giving prior written notice of their nature and temperature range to be maintained and/or special attention required. In the case of refrigerated, ventilated or any other specialized Container packed by or on behalf of the Customer, the Customer further undertakes that the Goods have been properly packed in the Container and that he has checked that its thermostatic, ventilating or any other special controls have been properly and exactly set, before receipt of the Goods by the Carrier. The Carrier shall not be liable for any loss or damage to the Goods arising out of or resulting from the Customer's failure in such obligation and further does not guarantee the maintenance of any intended temperature inside the Container.

11.2           The Carrier shall not be liable for any loss or damage to the Goods arising from latent defects, derangement, breakdown, defrosting, stoppage of refrigeration, ventilating or any other specialized machinery, plant, insulation and/or any apparatus of the Container, vessel, conveyance and any other facilities, provided that the Carrier shall before and at the beginning of the Carriage exercise due diligence to maintain the Container supplied to the Carrier in an efficient state.

11.3           If the Goods have been packed into a refrigerated Container by the Carrier and the temperature range requested by the Customer is inserted in this Transaction order, the Carrier will set the thermostatic controls within the requested temperature range, but does not guarantee the maintenance of such temperature inside the Container.

 

12.            Carrier's Container

12.1           The Customer shall assume full responsibility for and shall indemnify the Carrier against any loss of or damage to the Carrier's Container(s) and other equipment(s) which occurs while in the possession or control of the Customer, his agents, servants or independent contractors engaged by or on behalf of the Customer.

12.2           The Carrier shall in no event be liable for and the Customer shall indemnify and hold the Carrier harmless from and against, any loss of or damage to property of other Persons or injuries or death to other Persons caused by the Carrier's Container(s) or the contents thereof during handling by, or while in the possession or control of the Customer, his agents, servants or independent contractors engaged by or on behalf of the Customer.

12.3           If Container(s) supplied by or on behalf of the Carrier are unpacked at the Customer's premises, the Customer is responsible for returning the empty Container(s), with interiors brushed and clean, to the point or place designated by the Carrier, its agents or servants, within the time prescribed in the Carrier's applicable Tariff(s).  Should Container(s) not be returned as aforesaid within the time prescribed, the Customer shall be liable for any detention, losses and/or expenses which the Carrier may incur including but not limited to the cost of cleaning the interior of the Container(s).

 

12.4    Regarding Match back containers, the customer (importer) will not be liable to the container’s condition once the container has been delivered to the customer (exporter).  All container liability will be automatically transferred to the carrier and the customer (exporter).

 

13.            Customer's Responsibility

13.1           All of the Persons coming within the definition of Customer in Clause 1.1 shall be jointly and severally liable to the Carrier for the due fulfillment of all obligations of the Customer in this Transaction order.

13.2           The Customer shall comply with all statutes, ordinances, regulations or requirements of customs, port, and any other authorities relative to the Goods, documentation and any other matters affecting or in any way relating thereto, and shall bear and pay all duties, taxes, fines, imposts, expenses or losses incurred or suffered due to any failure to so comply, or due to any illegal, incorrect or insufficient marking, numbering or addressing of the Goods, and shall indemnify the Carrier in respect thereof.

13.3           The Customer shall indemnify, defend and hold the Carrier harmless from all consequences of any:

(a)                failure by the Customer to comply with any provision of this Transaction order, the Carrier's applicable Tariff(s), and/or any applicable circulars or contracts, laws or regulations, and/or

(b)                breach of any of the Customer's representations or warranties or undertakings herein.

13.4           The Customer's obligation to so indemnify, defend and hold harmless shall include reimbursement of all expenses or amounts spent or incurred, including legal fees and expenses, penalties or liabilities imposed, or loss of profit, directly or indirectly arising from or in connection with such failure or breach and shall not be defeated or reduced by any negligence on the part of or attributable to the Carrier.

 

14.            Optional Stowage and Deck Cargo

14.1           Where the Goods are not already packed into Container(s) at the time of receipt, the Carrier shall be at liberty to pack and carry them in any type of Container(s).

 

15.            Live Animals and Plants

15.1           The Carrier shall not be responsible for any accident, disease, mortality, loss of or damage to live animals, birds, reptiles, fish or plants arising or resulting from any cause whatsoever including the Carrier's negligence or the Vessel's unseaworthiness, and shall have the benefit of all the provisions of this Transaction order, except those inconsistent with the provisions of this Clause.

 

16.           Carriage Affected by Condition of Goods

16.1           If it appears or if the Carrier has reasonable grounds to believe at any time that, due to their nature or condition, the Goods cannot safely or properly be carried or carried further, either at all or without incurring additional expense or taking measure(s) in relation to the Container or the Goods, the Carrier may without notice to the Customer (but as his agent only) take any measure(s) and/or incur any additional expense to carry or to continue the Carriage thereof, and/or store them, under cover or in the open at any place, whichever the Carrier, in his absolute discretion, considers most appropriate. Furthermore, the Carrier shall be entitled with or without notice to the Customer to abandon the Goods whether in store or not, or to effect a sale or disposal of the Goods as may be necessary or appropriate. The Carrier's liability shall cease upon such abandonment, storage, sale or disposal. The Customer shall indemnify the Carrier against any additional legal fees and expenses so incurred.

 

17.            Modes, Route of Transport

17.1           The Carrier may at any time and without notice to the Customer: use any route of transport.

 

 

18.            Matters Affecting Performance (Liberty)

18.1           If at any time the Carriage is or is likely to be affected by any hindrance, risk, delay, difficulty or disadvantage of any kind whatsoever and howsoever arising (even if the circumstances giving rise to such hindrance, risk, delay, difficulty or disadvantage existed at the time this contract was entered into or the Goods were received for the Carriage), the Carrier (whether or not the Carriage is commenced) may, without prior notice to the Customer and at its sole discretion either:

(a)                Carry the Goods to the named Place of Delivery by an alternative route to that indicated in this Transaction order or that which is usual for the Goods consigned to that Place of Delivery (if the Carrier elects to invoke the terms of this Clause 18.1(a), then notwithstanding the provisions of Clause 17 hereof, he shall be entitled to charge such additional Freight as the Carrier may determine); or

(b)                Suspend the Carriage of the Goods and store them upon the terms of this Transaction order and endeavour to forward them as soon as possible, but the Carrier makes no representations as to the maximum period of suspension (if the Carrier elects to invoke the terms of this Clause 18.1(b) then he shall be entitled to such additional Freight and/or storage charges and/or legal fees and expenses as the Carrier may determine); or

 

19.            Dangerous Goods, Contraband

19.1           The Carrier undertakes not to carry Goods of an explosive, inflammable, radioactive, corrosive, damaging, noxious, hazardous, poisonous, injurious or any other dangerous nature only upon the Carrier's acceptance of a prior written application by the Customer for Carriage of such Goods, which acceptance the Carrier shall not be obliged to give.  Such application must accurately state the precise nature, name, label and classification of Goods as well as the method of rendering them innocuous, with the full names, addresses and telephone numbers of the Customer.

 

 

20.             Nuclear Incident and Valuable Goods

20.1           The Carrier shall not be responsible for any loss or damage to or in connection with the Goods arising or resulting from nuclear incident occurring at any time, unless caused by the actual fault or privity of the Carrier.

20.2           The Carrier shall not be liable to any extent for any loss of or damage to or in connection with platinum, gold, silver, jewellery, precious stones, precious metals, radioisotopes, precious chemicals, bullion, specie, currency, negotiable instruments, securities, writings, documents, pictures, works of art, curios, heirlooms, collections of every nature or any other valuable goods whatsoever including Goods having particular value only for the Customer, unless the true nature and value of the Goods have been declared in writing by the Customer before receipt of the Goods by the Carrier, and the same is inserted in this Transaction order and ad valorem freight has been fully prepaid.

 

21.            Notification and Delivery

21.1           Any mention in this Transaction order of parties to be notified of the arrival of the Goods is solely for information of the Carrier, and failure to give such notification shall not involve the Carrier in any liability nor relieve the Customer of any obligation hereunder.

21.2           The Customer shall take delivery of the Goods within the free storage time provided for in the Carrier's applicable Tariff(s) or otherwise. If the Customer fails to do so, without prejudice to any other rights of the Carrier hereunder, the Carrier may without notice unload the container at the customer’s specify location or carrier’s storage location. Such storage shall constitute due delivery hereunder, and thereupon all liability whatsoever of the Carrier in respect of the Goods or part thereof shall cease, and the costs of such unloading or storage (if paid or payable by the Carrier or any agent or Sub-Contractor of the Carrier) shall immediately on demand be paid by the Customer to the Carrier.

21.3           The Customer's attention is drawn to the stipulations regarding detention and demurrage in the Tariff(s).  If the Goods are unclaimed during a reasonable period not to exceed 3 days or whenever in the Carrier's opinion the Goods will become deteriorated, decayed or worthless, the Carrier may, without prejudice to any other rights against the Customer, at his sole discretion and subject to his lien and without any responsibility attaching to him, sell, abandon or otherwise dispose of such Goods solely at the risk and expense of the Customer, and apply the proceeds of any such sale or disposal in reduction of the sums due to the Carrier from the Customer.

21.4           Delivery of the Goods under this Transaction order shall be effected by the Carrier providing to the Customer the Goods or a Delivery Order or the pin codes for any Electronic Release System as applicable, and if the Carrier is obliged to discharge the Goods into the hands of any customs, port or other authority, such discharge shall constitute due delivery of the Goods to the Customer under this transaction order of lading.

 

22.            Notice of Claim and Time for Suit

22.1           Unless notice of loss or damage and the general nature of such loss or damage is given in writing to the Carrier at the Place of Delivery  before or at the time of delivery of the Goods or, if the loss or damage be not apparent, within 3 days after delivery, the Goods shall be deemed to have been delivered as described in this Transaction order.

22.2           Where the Goods have been or may have been lost or damaged during the custody of Sub-Contractors, the Carrier shall be discharged from all liability whatsoever in respect of the Goods unless the Customer gives the Carrier notice of loss and notice of claim in time for the Carrier to comply with the requirements of the Sub-Contractors. It is the Customer's obligation to inquire as to those requirements. The Carrier is not obligated to volunteer that information.

22.3           In any event, except as provided in Clause 22.2, the Carrier shall be discharged from all liability whatsoever in respect of the Goods unless suit is brought within one year after delivery of the Goods or the date when the Goods should have been delivered.