SCHEDULE A
CANADIAN SOCIETY OF CUSTOMS BROKERS (09-2016)
STANDARD TRADING CONDITIONS
These are the Standard Trading Conditions which
govern the business practices of members of the
Canadian Society of Customs Brokers. By signing the
Agency Agreement and Power of Attorney, each of the
Client and the Customs Broker agree to be bound by
the Agency Agreement and Power of Attorney as well
as these Standard Trading Conditions attached to the
Agency Agreement and Power of Attorney unless or
until a party advises the other party in writing to
the contrary subject to the provisions of Section 8
of these Standard Trading Conditions.
1. Definitions
"Agency Agreement and Power of Attorney" means that Canadian Society of Customs Brokers
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"
has the meaning set out in Section 6(a).
"Canadian Government Agencies and Departments" or “CGAD” means the Canada Border
Services Agency, any other department or agency, and
successor department or agency thereof, of the
Government of Canada or any Province thereof 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 Canada Border Services
Agency, 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.
"Disbursements" means any payment made by the Customs Broker, 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 on behalf of the Client.
"Disbursement Fees"
means those fees charged by the Customs Broker to the
Client in connection with arranging, making and/or
managing Disbursements.
"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 CGAD
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, the Customs Tariff, the Excise Act, the
Excise Tax Act, the Special Import Measures Act 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 person to whom a license to transact
business as a customs broker has been issued under the
Customs Act and who the Customs Broker may retain as
its own agent in connection with the Services, or part
thereof, that the Customs Broker performs for the
Client.
2. Fees and Disbursements
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”).
(a) Disbursements incurred by the Customs Broker on
behalf of the Client shall be reimbursed to the
Customs Broker by the Client.
3. Invoicing and Payment
The Customs Broker shall issue invoices to the Client
for all Fees and Disbursements pertaining to the
Services.
(a) Promptly upon receipt of invoices hereunder,
the Client shall pay to the Customs Broker, in cash or
by other immediately available and irrevocable funds
delivery as agreed to by the Customs Broker, as and
when due in accordance herewith, all Fees and
Disbursements for the Services without any reduction,
deduction, set-off or deferment on account of any
claim or counterclaim whatsoever.
(b) 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.
(c) 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.
4. 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 CGAD
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 CGAD
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,
i. unless otherwise instructed by the
Client; or
ii. unless there are past due accounts
owing by the Client to the Customs Broker in which
case 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
CGAD, the Customs Broker shall have no obligation to
render or perform any 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.
5. 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 CGAD’s
documentation and/or furnish required data to CGAD 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 with respect to each
matter set out in Section 5(c) 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 and/or
its own Sub-Agents.
(b) The Client warrants that (i) it is the
importer, exporter and/or owner of the goods (as
applicable) for which it has retained the Services of
the Customs Broker; (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
on behalf of the Client;
ii. Government Charges; and
iii. Losses incurred or sustained by the
Customs Broker in relation to the provision of
Services to the Client.
6. 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 all applicable laws and regulations of
Canada and any applicable Province, Territory and
municipality thereof (“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 CGAD 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; and/or (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.
(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.
(f) 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 CGAD or other
applicable governmental authorities.
(g) The Customs Broker shall use its commercially
reasonable efforts, in accordance with industry
standards, to advise the Client on matters referred to
the Customs Broker. The Client (i) acknowledges that
the Customs Broker has given no assurances,
representations or warranties to the Client regarding
the outcome of these matters, and (ii) understands
that there is no guarantee of any specific results
from the Services.
7. Limitation of Liability
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.
8. 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 CGAD and/or others and (b)
Client to Customs Broker, CGAD and/or others
(including all Fees and Disbursements), has been made
by the Client.
9. Governing Law
These Standard Trading Conditions are governed by the
laws of the Province or Territory in Canada within
which the Customs Broker has its principal place of
business, and the federal laws of Canada applicable
therein, and the Client hereby irrevocably attorns to
the courts of such Province or Territory. 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 assigns.
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
Uniform Electronic Commerce Act (or successor
legislation) as approved by the Uniform Law Conference
of Canada or enacted by the federal or provincial
legislatures, as applicable.
10. Severability
Each provision 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.
Annex 1
Customs Broker Services
The Customs Broker will provide to the Client import
and export services, and ancillary services related
thereto, when requested by the Client and accepted by
the Customs Broker. These may include, as selected by
the Client:
(i) assisting the Client in the preparation of
information required by CGAD with respect to
trade-related matters including, without limitation,
the importation of goods into Canada by the Client or
the exportation of goods from Canada by the
Client;
(ii) presenting information, by any acceptable means,
on behalf of the Client to CGAD required to report,
release and/or account for the Client's goods
including information as may be required for in-bond
transportation within Canada;
(iii) arranging for, managing, making and/or paying
any requisite Government Charges and/or Disbursements
by or on behalf of the Client and obtaining release of
goods from CGAD;
(iv) making arrangements for delivery of the
goods;
(v) assisting the Client in preparing and presenting
information required by domestic and foreign
jurisdictions including, without limitation, CGAD and
other applicable government authorities with respect
to trade-related matters and/or goods imported into or
exported from Canada by the Client;
(vi) providing information and advice concerning the
relevant laws and regulations pertaining to
trade-related matters and/or the import into Canada
and the export from Canada of the Client's goods;
(vii) providing advice on tariff classification, value
for duty, origin and any other relevant federal or
provincial customs requirements;
(viii) providing advice on federal and provincial tax
implications, payment options and any other tax
requirements concerning the Client's imported
goods;
(ix) providing advice concerning Government Charges,
refunds, drawbacks, and remissions, as well as appeals
of tariff classification or value for duty decisions
of CGAD;
(x) preparing and filing refunds, appeals, drawbacks
and remission applications;
(xi) providing consulting, advice, information and
assistance to the Client on matters pertaining to the
seizure, detention, and forfeiture of goods; and
(xii) providing consulting, advice, information and
assistance on all other matters necessary and
incidental to the foregoing Services;
in each case, all the foregoing at and subject to the
instructions of and on behalf of the Client.