Flexport Canada Customs Brokerage Terms & Conditions
By requesting or accepting goods or services from Flexport, Inc., and or its subsidiaries and affiliates (collectively, “Flexport”), the Customer agrees to the following terms and conditions or service (“Terms and Conditions”).
Flexport may from time to time change these Terms and Conditions. Any changes are effective immediately upon publication on our website at www.flexport.com/terms.
Flexport Canada Customs Terms & Conditions and Standard Trading Conditions
Both Client and Customs Broker agree to be bound by the Agency Agreement and Power of Attorney as well as these “Standard Trading Conditions”, unless or until a party advises the other party in writing to the contrary subject to the provisions of Section 9 of these Standard Trading Conditions.
"Agency Agreement and Power of Attorney" means the continuous general agency agreement and power of attorney with power to appoint a sub-agent (to which these Standard Trading Conditions are attached) signed by the Client to appoint the Customs Broker as its agent and attorney in connection with the Services described therein.
"Applicable Laws" means all applicable domestic or foreign national, supranational, federal, provincial, territorial, state or regional laws, treaties, codes, statutes or regulations, the common law, municipal by-laws or ordinances, and the rules, policies, guidelines, decrees, orders, authorizations, approvals, notices, licences, permits or directives of any governmental agency having the force of law.
“CBSA” means the Canada Border Services Agency, any other department or agency, or successor department or agency, of the Government of Canada or any Canadian province or territory having jurisdiction over the import and export of goods into and from Canada.
"Client" means that individual, partnership, association, entity or corporation at whose request or on whose behalf, either directly or indirectly, the Customs Broker undertakes any business or provides advice, information or services, and who is named as the Client in the Agency Agreement and Power of Attorney.
"Customs Broker" means that individual, partnership, entity or corporation licensed by the CBSA, or other authorized body, to engage in the business of a customs broker and who is named as the Customs Broker in the Agency Agreement and Power of Attorney.
"Disbursement Fees" means those fees charged by the Customs Broker to the Client in connection with arranging, making and/or managing Disbursements.
"Disbursements" means any payment made by the Customs Broker or any Sub-Agent on behalf of the Client, for any product or service rendered in connection with the facilitation of the import and export of goods, including but not limited to Government Charges, and any additional taxes, freight, storage, penalties, interest, fines and any other amounts, charges or payments, including, without limitation, payments for goods on COD shipments made by the Customs Broker or any Sub-Agent on behalf of the Client.
"Fees" has the meaning set out in Section 2(a), and includes, without limitation, Disbursement Fees.
"Government Charges" means those duties, taxes, penalties, interest, fines, or other charges or amounts charged or levied by CBSA or other applicable governmental authority on imported or exported goods including, without limitation, goods imported into Canada, exported from Canada or reported or released or to be reported or released under the Customs Act (Canada), the Customs Tariff (Canada), the Excise Act (Canada), the Excise Tax Act (Canada), the Special Import Measures Act (Canada) and/or any other Applicable Laws relating to customs, import and/or export.
"Losses" means losses, damages, delays, costs, injuries, fees (including without limitation legal fees and expenses), liabilities, expenses, actions, suits, proceedings, demands, and claims of any kind or nature whatsoever.
"Services" means those customs broker services described in Annex 1 which are required by the Client and agreed to be provided by the Customs Broker.
“Sub-Agent” means that individual, partnership, entity or corporation licensed by the CBSA, or other authorized body, to engage in the business of a customs broker, and who the Customs Broker, pursuant to the Agency Agreement and Power of Attorney, may retain as its own agent in connection with all or part of the Services.
“Service Provider” means any third party Customs Broker may retain in connection with all or part of the Services.
Fees and Disbursements. (a) The fees for Services shall be in accordance with the fee schedule as agreed upon between the Client and the Customs Broker, as amended from time to time (the “Fees”). (b) The Client shall pay to the Customs Broker all Fees charged for Services rendered. (c) Disbursements incurred by the Customs Broker or any Sub-Agent on behalf of the Client shall be reimbursed to the Customs Broker by the Client.
Invoicing and Payment. (a) The Customs Broker shall issue invoices to the Client for all Fees and Disbursements. (b) Promptly upon receipt of invoices issued hereunder, the Client shall pay to or as directed by the Customs Broker, in cash or by other immediately available and irrevocable funds, as and when due in accordance with the terms of such invoices, all Fees and Disbursements without any reduction, deduction, set-off, or deferment on account of any claim or counterclaim whatsoever. (c) Interest on all late payments shall be charged and paid at a rate equal to the prime lending rate set by the Bank of Canada plus 5% per annum, as it fluctuates from time to time, which interest shall be calculated and charged commencing 14 days after the relevant invoice date unless otherwise agreed to in writing by the parties. (d) To the extent the Customs Broker owes any amounts to the Client, the Customs Broker may set-off that amount owing to the Client as against any amount the Client owes the Customs Broker.
Advancement of Funds. (a) Upon request by the Customs Broker, the Client shall, prior to the Customs Broker’s release of any shipment of goods imported by the Client, promptly provide to the Customs Broker sufficient funds to enable the Customs Broker to pay on behalf of the Client all Disbursements that are estimated by the Customs Broker to be payable in connection with such shipment. (b) If, at any time, the Customs Broker or CBSA determines that additional funds are required with respect to goods imported by the Client, the Client shall upon demand of either the Customs Broker or CBSA promptly advance such additional funds to the Customs Broker. (c) If, after payment of Disbursements by the Customs Broker concerning the goods imported by the Client, any balance of funds remains outstanding to the credit of the Client, the Customs Broker shall promptly return to the Client any remaining balance of funds, unless otherwise instructed by the Client; however, if there are past due accounts owing by the Client to the Customs Broker, the Customs Broker may, on notice to the Client, pay its outstanding Fees and/or Disbursements (or part thereof) from the said remaining balance of funds. (d) If the Client fails to advance funds to the Customs Broker when requested by the Customs Broker or CBSA, the Customs Broker shall have no obligation to render or perform any further Services for or on behalf of the Client, and the Client shall be responsible, and reimburse, defend, indemnify and hold harmless the Customs Broker, for all Losses in connection therewith.
Duties and Responsibilities of the Client. (a) The Client shall (i) promptly provide to the Customs Broker all information necessary for the Customs Broker to provide the Services including, without limitation, all information required to complete CBSA’s documentation and /or furnish required data to CBSA or other applicable governmental authorities; (ii) promptly review all documentation and/or data and notify the Customs Broker of any inaccuracies, errors or omissions found therein; and (iii) reimburse, defend, indemnify, and save harmless the Customs Broker and any Sub-Agent with respect to each matter set out in Paragraph 5(c), below, and against any and all Losses which result from or arise in connection with inaccuracies, mistakes, or omissions in the information and documentation provided to the Customs Broker by the Client or its employees, representatives, and/or agents and relied upon by the Customs Broker or any Sub-Agent. (b) The Client represents and warrants that (i) it is the importer, exporter, and/or owner of the goods (as applicable) for which it has retained the Customs Broker to provide the Services; (ii) it has full power and authority to retain and appoint as agent and attorney and authorize and instruct the Customs Broker including, without limitation, as set out in the Agency Agreement and Power of Attorney; and (iii) all information provided to the Customs Broker is complete, true, and accurate. The Client acknowledges that the Customs Broker is relying on such information to provide the Services. (c) The Client is solely liable and responsible for each and all of (i) Disbursements made by the Customs Broker or any Sub-Agent on behalf of the Client; (ii) Government Charges; and (iii) Losses incurred or sustained by the Customs Broker or any Sub-Agent in relation to the provision of Services.
Duties and Responsibilities of the Customs Broker. (a) The Customs Broker shall at all times provide Services in a timely and professional manner in accordance with the generally accepted standards of the Canadian customs brokerage industry and in compliance with Applicable Laws. (b) All information pertaining to the Client is, and shall be kept, confidential by the Customs Broker, its Sub-Agents and Service Providers, if applicable, and shall only be released to CBSA or other applicable government, police or official investigation authorities, if and as (i) required by Applicable Laws or order of a body, agency, or court of competent jurisdiction and authority; (ii) directed or authorized by written instructions from the Client to the Customs Broker to release confidential information, or any part thereof, to third parties; or (iii) provided in the Agency Agreement and Power of Attorney. (c) The Customs Broker shall take all reasonable steps to provide the Services in accordance with the instructions from the Client, provided however, that if in the Customs Broker’s judgment it is in the Client’s interest to depart from the Client's instructions, the Customs Broker is hereby instructed and directed to do so and shall be reimbursed, defended, indemnified and saved harmless by the Client for all Losses incurred in so doing. (d) The Customs Broker shall provide to the Client in respect of each transaction or summary accounting made on the Client's behalf a copy of the accounting documents and data pertaining thereto. (e) The Customs Broker shall promptly account to the Client for funds received by the Customs Broker to the extent that these funds are (i) for the credit of the Client from the Receiver General for Canada or other applicable government authorities; or (ii) from the Client by way of advances provided in Section 4 in excess of the Disbursements payable in respect of the Client or the Client's business.
Limitation of Liability. (a) The Client acknowledges that the Customs Broker has given no assurances, representations or warranties regarding any specific results from the Services. (b) The Customs Broker shall not be liable for any Losses resulting from or caused in any part by (i) the Customs Broker’s negligence, misconduct or breach or for anything which it may do or refrain from doing; (ii) any act of God, unavoidable delay or event, or other act or cause beyond the reasonable control of the Customs Broker; or (iii) the Customs Broker’s failure to provide the Services as a result of or due to the operation of the Applicable Laws, or the Applicable Laws of any other country that affects the Services, or a change in the policies of CBSA or other applicable governmental authorities. (c) Neither the Customs Broker nor the Client will be liable for any consequential, special, incidental, indirect, punitive, or exemplary damages resulting from these Standard Trading Conditions, the Agency Agreement and Power of Attorney, any act of God, ‘force majeure’, or unavoidable delay or event beyond the reasonable control of the affected party. In addition, the Customs Broker shall not be liable for any loss of profit, loss of revenue, loss of use or other like damages or losses, or damages arising in tort, whether or not known or contemplated, in connection with the Services, these Standard Trading Conditions, and/or the Agency Agreement and Power of Attorney. (d) Notwithstanding any other provision hereof, in no event shall the Customs Broker’s total aggregate liability (if any) to the Client arising under these Standard Trading Conditions and/or the Agency Agreement and Power of Attorney exceed the total amount of Fees paid by the Client to the Customs Broker under these Standard Trading Conditions in connection with those Services giving rise to the said liability.
Termination. In the event that the Agency Agreement and Power of Attorney is terminated and there are any outstanding matters pertaining to the Client for which the Customs Broker has been engaged by the Client and for which the Customs Broker remains liable to make payment, the Agency Agreement and Power of Attorney (with these Standard Trading Conditions) shall continue in force with respect to such matters until such matters are concluded and payment by the Client to the Customs Broker of such funds as may be required to satisfy all outstanding payment obligations and liabilities of the (a) Customs Broker to CBSA and/or others, and (b) Client to the Customs Broker, CBSA, and/or others (including all Fees and Disbursements), have been made by the Client.
Governing Law. These Standard Trading Conditions, the Agency Agreement and Power of Attorney, and all matters arising out of or relating to any of them, are governed by and construed in accordance with the laws of the Province of Ontario, and the Client hereby irrevocably submits to the exclusive jurisdiction of the courts of the Province of Ontario in any action or proceeding arising out of or relating to the Standard Trading Conditions or the Agency Agreement and Power of Attorney.
Enurement. The Agency Agreement and Power of Attorney, together with these Standard Trading Conditions, enure to the benefit of and are binding upon the parties and their respective executors, administrators, successors and permitted assigns.
Electronic Communication. The parties agree that where they have used electronic communications in whole or in part to transact any business, those communications will be given legal effect in accordance with the provisions of the Ontario Electronic Commerce Act, 2000 (“ECA”) as amended from time to time, or its successor legislation; however, if a court of competent jurisdiction determines that the ECA does not apply to the parties, such communications will be given legal effect in accordance with the provisions of the Uniform Electronic Commerce Act as approved by the Uniform Law Conference of Canada.
Severability. Each provision of the Agency Agreement and Power of Attorney and of these Standard Trading Conditions is and shall be deemed to be separate and severable and if any provision or part thereof is held for any reason to be unenforceable, the remainder of these Standard Trading Conditions shall remain in full force and effect.
Assignment. (a) The Customs Broker may assign, in whole or in part, the Agency Agreement and Power of Attorney (including, for greater certainty, these Standard Trading Conditions) without consent of the Client. (b) The Client may not assign, in whole or in part, the Agency Agreement and Power of Attorney (including, for greater certainty, these Standard Trading Conditions) without the prior written consent of the Customs Broker. Any purported assignment in violation of this Section 14(b) is null and void. (c) No assignment shall relieve the assigning party of any of its obligations hereunder.