Terms and Conditions:
Tradewin™ Canada Terms and Conditions of Service
All global logistic consulting services (the "Services") provided to the "Customer", will be handled by Tradewin Canada, a division of Expeditors Canada Inc. ("Tradewin") on the following terms and conditions, unless a separate duly executed consulting agreement is issued by Tradewin, in which event any conflict between the two shall be resolved by reference to the terms of the separate agreement. No agent or employee of Tradewin shall have any other authority to alter or waive any of the provisions of the terms and conditions set forth below.
- Customer Obligations Regarding Documents. The Customer will furnish to Tradewin in a timely manner all information and documents necessary or useful to provide the Services. The Customer warrants the accuracy and completeness of all documents and information furnished to Tradewin.
- Third Parties. Tradewin is authorized to deliver Services by selecting and engaging other contractors ("Third Parties") to provide some or all of the Services. Tradewin will use reasonable care in the selection of Third Parties.
- Indemnification by Customer. Notwithstanding any other provisions of this Agreement, because Customer is engaged in activities over which Tradewin has no control, the Customer will indemnify, defend and hold harmless Tradewin, its officers, employees and agents from any and all liability, loss, damages, claims, liens, costs and expenses, including attorneys' fees, arising from a third party claim against Tradewin to the extent that such third party claim is based on a breach of this Agreement by Customer or the negligent acts or omissions of the Customer, its officers, employees, and agents.
- Indemnification by Tradewin. Tradewin shall indemnify Customer for any claims, losses, damages and expenses that arise from the (i) death or injury to persons or (ii) property damage of third parties that are a result of the negligent acts of Tradewin when performing its obligations under this Agreement.
- Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, MULTIPLE OR PUNITIVE DAMAGES. TRADEWIN'S AGGREGATE LIABILITY IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID BY CUSTOMER IN THE LAST THREE (3) MONTH PERIOD FOR THE PARTICULAR PROJECT IN WHICH THE DAMAGES AROSE. IN NO EVENT SHALL TRADEWIN BE LIABLE FOR ANY ACT, OMISSION OR DEFAULT IN CONNECTION WITH THE SERVICES, UNLESS A WRITTEN STATEMENT AND PROOF OF CLAIM THEREFORE ("CLAIM") IS PRESENTED TO TRADEWIN WITHIN SIXTY (60) DAYS FROM DATE OF DISCOVERY OF THE CLAIM. NO SUIT TO RECOVER FOR ANY CLAIM OR DEMAND HEREUNDER SHALL IN ANY EVENT BE MAINTAINED AGAINST TRADEWIN UNLESS INSTITUTED WITHIN TWELVE (12) MONTHS AFTER COMPLETION OF SERVICE. TRADEWIN IS NOT LIABLE FOR THE CONSEQUENCES OF ANY ACTION TAKEN, OR FINES OR PENALTIES ASSESSED, BY ANY GOVERNMENTAL AGENCY AGAINST CUSTOMER.
- Customer Obligations Regarding Compliance with Laws. It is the Customer's responsibility to know and comply with the laws and regulations of all governmental agencies. Unless explicitly agreed in writing to the contrary: (a) Customer is solely responsible for compliance with the most current laws, regulations and interpretations, and (b) Customer is solely responsible for furnishing any required bonds to Customs. Except for Tradewin divisions which specialize in reclaim entries, Tradewin does not sell or otherwise provide Customer with Customs Bonds. Customer acknowledges that because of changes in the law, Services rendered by Tradewin may not be suitable for future use by Customer without updating. The Customer recognizes that governmental laws, regulations and interpretations are subject to change from time to time. Unless explicitly agreed in writing and signed by Tradewin and the Customer, Tradewin shall have no ongoing obligation to update the Services.
- Payment. Tradewin will prepare invoices that will be paid by the Customer in the ordinary course of business. Unless otherwise set forth in the attached proposal, Tradewin will invoice Customer monthly for fees due for the Services and payment is due within 30 days of the invoice date. The Customer agrees to keep its account current. In any referral for collection or other action against the Customer related to monies due Tradewin, the Customer agrees to pay the expenses of collection and/or litigation, including reasonable attorney fees, plus 1.5% interest per month.
- Confidentiality. "Confidential Information" includes all written information furnished or made available directly or indirectly by one party to the other which is marked confidential, restricted, proprietary or with a similar designation, or information that by its nature would be considered confidential. The parties agree that any Confidential Information provided under this Agreement must be maintained in strict confidence. Each party agrees to protect the Confidential Information of the other party in a manner consistent with the protections used to protect its own Confidential Information, but in no event less than a reasonable standard of care. If either party becomes aware of any actual or possible unauthorized use or disclosure of any Confidential Information, that party must notify the other party.
- Proprietary Rights. In the course of providing the Services, Tradewin may use its proprietary technology, programs, processes, report formats and other materials (the "Proprietary Materials"). Tradewin retains all intellectual property rights, including any patents, copyrights, trade secrets, trademarks, trade names, or other intellectual property, in the Proprietary Materials and no license rights are granted under this Agreement. Customer may not reproduce, publish, modify, disassemble, decompile, reverse engineer, or create derivative works of the Proprietary Materials.
- Governing Law. This Agreement is governed by and construed in all respects in accordance with the internal substantive laws of the Province of Ontario and the federal laws of Canada applicable therein, without regard to the conflict of law principles of such Province. The Customer attorns to the exclusive jurisdiction of the courts of the Province of Ontario, and agrees that all claims and proceedings by the Customer shall be brought only in Toronto.
- General. This Agreement can be modified or amended only by written agreement signed by the parties. If any provision of this Agreement is held to be illegal, invalid or unenforceable under present or future laws effective during the Term, the provision will be fully severable and this Agreement will be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a part of this Agreement and the remaining provisions will remain in full force and effect. The waiver or failure of either party to exercise in any respect any right provided for in this Agreement is not a waiver of any further right under this Agreement. This Agreement and the attached proposal contain the complete agreement between the parties concerning the subject matter and supersede all prior communications between the parties relating to the Services.