Brokerage Transportation Terms and Conditions (Canada) 

The following Brokerage Transportation Terms and Conditions (the “Terms and Conditions”) govern the provision of transportation services specifically offered by CJ Logistics Canada Corporation (“Broker”) when providing transportation brokerage services. The Terms and Conditions do not apply to any other service or entity owned by CJ Logistics America, LLC.

By tendering a freight shipment to Broker, the tendering party (the “Shipper”) agrees to be bound by the Terms and Conditions herein.

Shipper and Broker (“the Parties”) enter into these Terms and Conditions for the purpose of providing and receiving specified transportation brokerage services subject to specified rates and conditions. The Parties agree that these Terms and Conditions constitute the entire agreement governing Broker’s brokerage services and shall apply to all shipments tendered by Shipper to Broker. All transportation services are performed exclusively by Broker’s contracted motor carriers (the “Carriers”). Except as expressly set out herein, the rights, obligations and liabilities of Shipper and Carriers in respect of the transportation of goods shall be determined in accordance with all applicable federal, provincial, territorial and local laws, rules, regulations and orders governing the Goods, the Parties or the subject matter of these Terms and Conditions (“Applicable Laws”).

1. Role of CJ Logistics Canada. Shipper, by tendering freight to Broker, understands, acknowledges, and agrees that Broker acts solely as an intermediary that arranges with Carriers to carry the Shipper’s goods by commercial motor vehicle.

2. Scope and Requirements. The Terms and Conditions govern all shipments of general commodities (“Goods”) for which Broker arranges transportation by Carriers at the request of Shipper (“the Services”). The Services shall include:

a. Broker must arrange for and coordinate pick-up and delivery appointments with Shipper and the consignee.

b. Broker shall arrange for transportation by Carriers. Broker may engage Carriers, including its own affiliates, to perform the transportation services to be provided under these Terms and Conditions.

c. Broker shall contractually require Carriers to provide the necessary equipment, maintained in compliance with the requirements of Applicable Laws, and qualified personnel for completion of the transportation services required for Shipper. Broker will contractually require that Carriers do not supply equipment that has been used to transport hazardous wastes regardless of whether they meet the definition in the Cross-border Movement of Hazardous Waste and Hazardous Recyclable Material Regulations (Canada), the regulations under the Environmental Protection Act (Ontario) or other similar Applicable Laws. Broker agrees that all shipments will be transported and delivered with reasonable dispatch, or as otherwise agreed in writing.

3. Pricing. Broker shall invoice Shipper for its Services in accordance with the rates, charges and provisions as set forth in the quote provided by Broker. Customer understands and agrees that quotes or a good faith estimate, and actual charges may vary based upon the circumstances and market conditions at the time transportation is actually arranged or actually ships. As such, Customer agrees to pay any increases between the actual rate and the quote. Rates may be established or amended verbally in order to meet specific shipping schedules, as mutually agreed, so long as such verbal rate agreements are reduced to writing and acknowledged by authorized representatives of both Shipper and Broker, and confirmed by telefax or electronic mail within five (5) working days after the movement of the involved freight. No other rates shall apply unless Broker has contracted pricing in place with Shipper. Quotes do not include other charges, such as stop-offs, detention, loading or unloading, fuel surcharges, or other accessorial charges, tariff rates, released rates or values, or tariff rules or circulars, which shall only be valid as specified in the Accessorial Schedule as outlined in Broker’s Shipper Accessorial Policy (see below).

For avoidance of doubt or confusion, unless otherwise stated, quotes are for standard levels of service with no guarantee of pick-up or delivery times. Broker shall request its Carriers proceed with reasonable dispatch in compliance with any and all Applicable Laws. Broker cannot guarantee a pick-up time, delivery time, or transit time, as Broker does not have the right or means to control how Carriers perform the Services.

4. Payment.

a. Broker agrees to submit its invoice to Shipper within thirty (30) days of shipment delivery. Shipper agrees to pay Broker within fifteen (15) days of receipt of Broker’s invoice for the Services, in accordance with the rates set forth or as otherwise agreed, provided that Broker timely submits documents verifying delivery, including any receipt of proof of delivery, bill of lading, signed load confirmation, and any other documents agreed herein by reference.

b. Broker shall be responsible for paying its Carriers for shipments performed pursuant to these Terms and Conditions. Broker shall defend, indemnify, and hold Shipper harmless from any claims made against them by Carriers for payments.

c. Broker shall contractually require Carriers to not withhold delivery of any freight due to any dispute with Shipper, Broker, consignee, or other Party.

5. Mileage. For each freight movement, the mileage according to the then-current version of PC*Miler™ will apply.

6. Receipts and Bills of Lading. Each shipment of Goods shall be evidenced by a bill of lading signed by Carrier. If requested by Shipper, Broker agrees to provide Shipper with proof of acceptance and delivery of such loads in the form of a signed bill of lading or delivery receipt, as specified by Shipper. Shipper’s insertion of Broker’s name on the bill of lading shall be for Shipper’s convenience only and shall not change Broker’s status as a property or load broker. Each bill of lading issued in connection with these Terms and Conditions shall serve only as evidence of receipt of such shipment by Carrier and shall not amend or modify these Terms and Conditions. The form and content of each bill of lading shall be deemed to conform to Applicable Laws where the shipment originates. Where a bill of lading was not issued or not properly issued, in connection with the shipment of Goods, a bill of lading shall be deemed to have been issued in the appropriate form and content. The terms and conditions of any freight documentation used by Shipper, Broker, or Carrier may not amend, modify or supersede these Terms and Conditions.

7. Liability for Claims, Physical Loss or Damage to Cargo. The parties agree that Broker is not liable for loss, damage or delay claims, as these are the responsibility of Carrier. Broker shall only utilize Carriers who contractually agree that they will bear sole liability for all cargo damage, loss or theft. Carrier shall be responsible for the full actual damage or loss to all Goods while in its or its contractor’s care, custody or control, irrespective of the point of origin or destination of a shipment, or the jurisdiction where the loss occurs. For the purposes of this Section 7, the value of a Good shall be calculated based upon its landed cost as of the time that the Goods is tendered to the Carrier for performance of transportation services. Carrier shall not be liable for any loss, damage, or delay caused by the Act of God, the King’s or public enemies, authority of law, or the act or default of Shipper. Further, neither Broker nor Carrier shall be responsible to pay for claims caused due to a willful or negligent act or omission of Shipper, its agents or employees. Any salvage proceeds shall be credited against Shipper’s claims against Carrier.

8. Loss and Damage Claims Process. All claims for loss, damage, or delay shall be submitted directly to the Carrier as soon as reasonably practicable and, in any event, within nine (9) months from the date of loss, damage, or delay, which for purposes of these Terms and Conditions shall be determined by the delivery date or, in the event of non-delivery, the scheduled delivery date. Carrier shall acknowledge receipt of a cargo claim within thirty (30) days and will promptly investigate the claim. Carrier will pay, decline, or make a firm compromise settlement offer within sixty (60) days of receipt of the claim. Legal actions against Carrier for loss, damage, or delay may be filed at any time within two (2) years following the date on which Carrier provides notice that it has disallowed any part of such claim. Carrier shall be contractually required to notify Broker immediately by telephone, who in turn will notify Shipper immediately, of any accidents, spills, theft, hijacking, delays or shortages which impair the safe and prompt delivery of goods in Carrier’s control.

9. Broker’s Insurance. Broker shall procure and maintain, at its sole cost and expense, the following insurance coverages, subject to the following minimum limits:

a. Contingent cargo liability in the amount not less than one hundred thousand dollars (C$100,000) per occurrence;

b. Commercial General liability, with coverage against bodily injury and property damage, including broad form contractual liability coverage and an endorsement for non-owned automobile liability, in the amount not less than one million dollars (C$1,000,000) per occurrence and two million dollars (C$2,000,000) per aggregate; and

c. Errors and Omissions insurance in an amount not less than two hundred fifty thousand dollars (C$250,000) per occurrence.

10. Carriers’ Insurance. Broker shall only utilize Carriers that procure and maintain, at their sole cost and expense, the following insurance coverages, subject to the following minimum limits:

a. Commercial General Liability, with coverage against bodily injury and property damage, including broad form contractual liability coverage, in the amount not less than one million dollars (C$1,000,000) per occurrence and two million dollars ($2,000,000) per aggregate;

b. Auto Liability in the amount not less than one million dollars (C$1,000,000) combined single limit per occurrence or five million dollars (C$5,000,000) combined single limit per occurrence if transacting dangerous goods including environmental damages due to release or discharge of hazardous substances;

c. Cargo Legal Liability Coverage in the amount not less than one hundred thousand dollars (C$100,000) per Occurrence;

d. Crime insurance covering employee dishonesty, including but not limited to, dishonest acts of Carrier, its employees, agents, subcontractors and anyone under Carrier’s supervision or control in an amount not less than one million dollars (C$1,000,000) and coverage shall include theft of client, guest, or customer property including Shipper and its affiliates as Loss Payees;

e. Umbrella/Excess Liability in the amount of not less than one million dollars (C$1,000,000) at least as broad as and written on an excess basis over scheduled underlying primary Commercial General Liability and Commercial Auto Liability policies; and

f. Any other insurance required by Applicable Laws where Services of the Carriers are performed.

g. Broker shall use commercially reasonable efforts to ensure that Carriers maintain workers compensation coverage in accordance with Applicable Laws, or in the case of any Carrier that is exempt from a statutory requirement for such coverage, that it holds Employer’s Liability insurance providing coverage for claims or actions for bodily injury suffered by such Carrier’s workers with limits of at least C$1,000,000 per employee and per accident, with a waiver of subrogation against Shipper.

11. Hazardous Materials / Dangerous Goods. Shipper must comply with all Applicable Laws relating to the transportation of dangerous goods as defined in the Transportation of Dangerous Goods Act, 1992 (Canada). Shipper is obligated to inform Broker immediately if any such shipments constitute hazardous materials, dangerous goods or hazardous residues. Shipper shall defend, indemnify and hold Broker harmless from any penalties, liabilities, damages, costs and expenses of any kind, including reasonable legal fees, incurred by Broker or any Carrier, arising directly out of Shipper’s failure to comply with Applicable Laws relating to hazardous materials, dangerous goods or hazardous residues, or arising in connection with any audits, inspections or enforcement orders issued by governmental agencies in connection with dangerous goods tendered by Shipper.

12. Indemnification of Broker. Shipper shall defend, indemnify and hold Broker, along with its employees, agents, and Carriers (together, the “Indemnified Parties”) harmless against any claims, actions, damages and causes of action arising out of or relating to:

a. Shipper’s or Shipper’s customer’s negligent or other tortious acts or omissions;

b. Arising out of or relating to Shipper’s breach of these Terms and Conditions; or

c. Shipper’s violation of Applicable Laws.

Shipper must indemnify the Indemnified Parties from any attempts to subrogate to them by Shipper’s insurance carrier, or any other party. The obligation to defend shall include payment of all reasonable costs of defense, including legal fees, incurred by the Indemnified Parties.

13. Independent Contractor.

a. It is understood and agreed that the relationship between Shipper and Broker is that of independent contractor. None of these Terms and Conditions, or any act or omission of either Party shall be construed for any purpose to express or imply a joint venture, partnership, principal/agent, fiduciary, or employer/employee relationship between the Parties. Broker and Carrier shall each provide the sole supervision and shall have exclusive control over the operations of its employees, contractors, subcontractors, agents, as well as all vehicles and equipment used to perform its transportation services hereunder. Shipper has no right to discipline or direct the performance of any driver and/or employees, contractors, subcontractors, or agents of Broker or Carrier. Shipper is not and will not be responsible for any debts, liabilities, or obligations incurred by Broker or Carrier in the performance of its business. It is the intent of the Parties that Broker is, shall be, and will remain an independent contractor and nothing contained herein shall be construed to be inconsistent with that relationship. Broker represents and agrees that at no time and for no purpose shall it represent to any Party that it is anything other than an independent contractor in its relationship to Shipper.

b. It is understood and agreed that the relationship between Broker and Carrier is that of independent contractor. None of these Terms and Conditions, or any act or omission of either party shall be construed for any purpose to express or imply a joint venture, partnership, principal/agent, fiduciary, or employer/employee relationship between Broker and Carrier. Carrier shall provide the sole supervision and shall have exclusive control over the operations of its employees, contractors, subcontractors, agents, as well as all vehicles and equipment used to perform its transportation services hereunder. Broker has no right to discipline or direct the performance of any driver and/or employees, contractors, subcontractors, or agents of Carrier. Broker is not and will not be responsible for any debts, liabilities, or obligations incurred by Carrier in the performance of its business. It is understood by the Parties that Carrier is, shall be, and will remain an independent contractor and nothing contained herein shall be construed to be inconsistent with that relationship.

14. Non-Exclusive Agreement. Shipper and Broker acknowledge and agree that the Terms and Conditions do not bind the respective parties to exclusive services to each other. Either party may enter into similar agreements with other carriers, brokers, or freight forwarders. Additionally, Shipper makes no representation or commitment as to volume or revenue and Broker makes no representation or commitment as to available capacity.

15. Confidential Information.

a. The Parties acknowledge that material and information which each party may acquire about the other, including services, volume, customers, pricing, procedures and processes are considered by the Parties to be proprietary and confidential. Both Parties agrees that all such information acquired hereunder shall be held in confidence, and shall not reveal or use any such information. Both Parties shall disclose such information or material only to those who have reasonable need to know the same in connection with the performance of the Services, and agree to protect the information with the same degree of care that it employs for the protection of its own confidential and proprietary information of a similar nature, but not less than reasonable care.

b. Neither Party shall have any obligation to preserve the confidentiality of any such information to the limited extent that it: (i) is in the public domain or generally available to the public; (ii) was in the possession of or disclosed to the Party prior to the date hereof, free of any obligation to keep the same confidential; (iii) is lawfully acquired by the Party from a third Party under no obligation of confidentiality to the other Party; or (iv) is required to be disclosed by law or court order; provided, however, that the disclosing Party shall give prompt written notice thereof to the other Party.

c. In the event of violation of this Confidentiality paragraph, the Parties agree that the remedy at law, including monetary damages, may be inadequate and that the Parties shall be entitled, in addition to any other remedy they may have, to an injunction restraining the violating Party from further violation of these Terms and Conditions in which case the prevailing Party shall be liable for all costs and expenses incurred, including but not limited to reasonable legal fees.

16. Non-Solicitation.

a. Shipper agrees not to solicit any Carriers it first came into contact with as a result of a load tendered to Broker for a period of twenty-four (24) months following the date of the last tender to Broker transported by the Carrier. For avoidance of doubt, solicit shall include as a load tender, RFP/Bid, or other offer of freight by Shipper to Carrier. If Shipper can demonstrate that it tendered no fewer than ten (10) shipments to Carrier in the twelve (12) months prior to Shipper’s first tender to Broker where the same Carrier was utilized, then that Carrier shall be exempt from this Section 16. If Shipper violates the provisions of this section, Shipper agrees to pay Broker, as liquidated damages, twenty percent (20%) of the gross amount paid to each Carrier on each shipment that violates the provisions of this section for a period of twelve (12) months following the date of the last tender to Broker transported by the Carrier.

b. Shipper agrees not to solicit, recruit, or offer employment to any of Broker’s employees for a period of twelve (12) months following the date of the last tender to Broker.

17. Disputes; Governing Law; Venue. The Terms and Conditions shall be construed in accordance with and governed by the laws of the Province of Ontario and the federal laws of Canada applicable therein, without consideration to the principles of conflict of law. The Parties agree that the Courts of Ontario shall have exclusive jurisdiction to any questions, issues or disputes arising out of the performance (or non-performance as the case may be) of either or both of the Parties under these Terms and Conditions. Notwithstanding the foregoing, the Parties may mutually agree in writing to submit any such disagreement or dispute to binding arbitration. The Parties agree that this paragraph is reasonable due to the commercial circumstances of the proposed relationship and therefore waive any defense or objection to such exclusive jurisdiction based on forum non-conveniens or similar grounds.

CJ LOGISTICS CANADA ACCESSORIAL SCHEDULE