Terms and Conditions

1. Introduction

1.1. The following contains the general terms and conditions of contract (“Terms”) under which Canada Cartage Diversified ULC, Sonar Transport ULC, Direct Integrated Transport ULC and their affiliates (each herein referred to as “Service Provider”) provide transportation services to a “Customer.” To the extent the Service Provider and a Customer have entered into a binding written agreement for the provision of services, such agreement shall supersede the Terms. In tendering a shipment for service, the Customer agrees that the Terms will apply. The Terms are effective on the date set forth above and are subject to change without notice. The Terms are published periodically electronically on the Service Provider’s website at www.canadacartage.com/terms-conditions/ and are available at all Service Provider offices in printed form.

2. Definitions

2.1. “Business Day” means any day other than Sunday or a statutory or civic holiday (Federal and / or Provincial);

2.2. “Parties” means, collectively, Service Provider and the Customer and “Party” means either one of them as the context requires;

2.3. “Person” means a natural person, firm, trust, partnership, association, corporation, syndicate, government or governmental board or agency;

2.4. “Points of Delivery” means such destinations for delivery of product as the Customer designates from time to time, including without limitation, the locations owned or operated by the Customer’s customers in Canada and the United States;

2.5. “Points of Supply” means such locations for Product pickup as the Customer designates from time to time;

2.6. “Product” means such commodities that the Customer designates and Service Provider agrees to transport from time to time; and

2.7. “Service” means the transportation services requested by Customer and provided by Service Provider.

3. Transportation Services

3.1. Service Provider shall in general provide the equipment, facilities and personnel necessary to provide the Services.

3.2. Service Provider agrees to use commercially reasonable efforts to provide Service in a safe, timely, economical and professional manner.

3.3. The Customer shall provide Service Provider with access to its information and reporting systems to the extent required in connection with loading and unloading at Customer sites.

3.4. The Customer shall provide Service Provider with sufficient security capabilities to allow safe ingress and egress of Service Provider’s personnel (including its subcontractors, agents and authorized representatives) and equipment.

3.5. The Customer shall provide sufficient operator orientation and training to support safe access, unloading, loading and egress of all personnel and equipment at the Customer sites.

4. Subcontractors

4.1. Service Provider agrees that, in the event it engages subcontractors to perform Services hereunder, it will be a term and condition of such subcontract agreement that the subcontractors agree to comply with all the provisions of this Agreement; provided however that such engagement of any subcontractors shall not relieve Service Provider of its responsibilities to the Customer hereunder for the portion of the Service subcontracted to the subcontractor and for the purposes of this Agreement such engagement shall be considered as if Service Provider itself were performing the service. No contractual relationship shall be implied between any subcontractor and the Customer.

5. Equipment and Personnel

5.1. Service Provider shall ensure that the drivers are licensed and qualified in the safe handling of the Product. Service Provider will use its reasonable best efforts to ensure that at all times the drivers maintain a clean and orderly appearance and extend politeness and courtesy to the Customer’s suppliers, employees, agents and customers.

5.2. Service Provider agrees to use its reasonable best efforts to keep all equipment dedicated to the Customer’s Service in mechanically sound operating condition and presentable in appearance.

6. Compensation and Invoicing

6.1. In consideration of the Service, the Customer shall compensate Service Provider in accordance with the “Rate Schedule” agreed to by Service Provider and Customer. Such Rate Schedule may include a Fuel Surcharge.

6.2. Service Provider shall invoice the Customer for all charges due and owing on a weekly basis. Customer agrees to pay the invoices as submitted, without deduction or hold back, within thirty (30) days after receipt. Overdue amounts will be subject to an interest charge of two percent (2%) per month. Any dispute as to the amount of the invoice shall be promptly resolved by Service Provider and the Customer. Claims for loss or damage to Product shall not be deducted from invoices, but shall be handled separately. All invoices to be paid in Canadian Funds.

6.3. Payment of an invoice shall not prejudice the right of the Customer to protest or question the correctness thereof; provided however, that all statements rendered to the Customer shall be conclusively presumed to be true and correct three (3) months following the submission thereof unless within the said three (3) month period the Customer takes written exception thereto and submits a claim to Service Provider for adjustment. (The Customer, upon advanced written notice to Service Provider, shall have the right to audit Service Provider’s records during normal business hours solely to confirm the correctness of any invoice).

6.4. In relation to all Product and documents relating to the Product which come into Service Provider’s possession or control, Service Provider shall have a particular lien and general right of detention upon each of the Products and documents for all amounts owing to Service Provider, whether those amounts were incurred to Service Provider before, during or after the Products or documents came into Service Provider’s possession or control, or relate to other Products or documents. If any amount due to Service Provider is not paid within one calendar month after notice has been given to the Customer that such Products are being detained, the Products and the documents that relate to the Products may be sold at public or private sale without advertising or in such other manner as deemed appropriate by Service Provider, with such sale being at the expense of Customer. The net proceeds of such sale may be applied in or towards satisfaction of the indebtedness to Service Provider, and Service Provider will not be liable for any deficiencies or reduction in value received on the sale of the Products and Customer shall not be relieved from any liability, other than to the extent of the net proceeds realized from the sale, due to the sale of the Products.

7. Compliance

7.1. Service Provider shall ensure that:

7.1.1. all licenses and permits required to provide the Service are obtained and maintained and that all applicable statutes, laws, rules and regulations are complied with;

7.1.2. all charges, fees and assessments payable to any governmental or regulatory authority having jurisdiction are paid; and

7.1.3. all transportation and customs regulations as well as insurance requirements applicable to all jurisdictions in which the Customer provides its Service are complied with.

7.2. The Customer’s method(s) of load securement shall meet or exceed the performance criteria set out in the North American Cargo securement Standard. Aside from failure of load securement due to an at fault collision on the Service Provider’s part, Service Provider shall not be liable for loss, damage, and/or injury resulting from the failure of load securement devices. Service Provider, where possible, shall confirm load securement is in place at the most rearward section of the load prior to accepting the load, however whether or not Service Provider confirms load securement, Service Provider does not make assumption or guarantees as to its effectiveness or performance.

7.3. In the event the equipment used in the provision of the Service sustains loss or damage while at Customer’s facilities, the Customer shall provide full cooperation to Service Provider in identifying responsible party(ies).

8. Confidentiality

8.1. The Parties agree that all data and information provided or to be provided in connection with the Services shall be kept confidential by the Party receiving such data and information, and the receiving Party shall neither disclose such data and information to any third party without first obtaining the written consent of the disclosing Party, nor use such data and information for any purpose other than that relating to the provision of Service herein. All data and information shall remain the property of the Party providing such data and information. It is understood and agreed that the Rate Schedule is and shall remain the property of Service Provider and, as such, shall be subject to the provisions of this Section.

9. Non-Solicitation

9.1. The Parties agree that they will not, during the period in which Services are provided and for a period of (1) year following, directly or indirectly, whether for themselves or any other Person, or other entity affiliated with the other Party, without the prior written consent of the other Party: (i) employ or engage or contract; (ii) solicit for employment engagement or contract; (iii) encourage to leave their employment or engagement; or (iv) encourage to terminate their contract any employee, consultant or independent contractor, who was involved in the Service provided to the Customer.

10. Documentation

10.1. The Customer will provide Service Provider with specific instructions for each Point of Supply and Delivery.

10.2. Service Provider shall utilize such forms as the Customer may reasonably require with respect to the Service, including the loading, transportation and unloading of Product. Service Provider shall use its reasonable best efforts to complete and submit all Product transfer information, Bills of Lading and customs documentation in a timely and accurate manner in forms and formats specified by the Customer and applicable authorities. The Customer is required to provide accurate shipment weight to Service Provider by way of disclosure on the face of each Bill of Lading. Violations/convictions received by Service Provider resulting from inaccurate shipment weight provided by the Customer, shall be financially assumed by the Customer. Service Provider shall accept all other weight violations directly attributed to its negligent performance and conduct.

10.3. The Customer represents that the Product is in good condition and the load secure and Service Provider shall ensure that the shipping receipt prepared at the Points of Supply to acknowledge acceptance of the goods tendered for delivery is signed.

10.4. Service Provider will ensure that all equipment contains the necessary documentation to comply with regulations pertaining to the transportation of the Product.

11. Product Ownership

11.1. Except as set forth in Section 6.4, title to the Product shall at all times remain with the Customer.

12. Indemnification

12.1. Each Party shall indemnify, defend and hold the other Party harmless from all losses, damages, expenses (including reasonable attorney’s fees), actions and claims for injury or death to persons and damage to property (including the property of the Customer or its employees but excluding the Product) asserted against other such Party by any person (including, without limitation, Service Provider’s and the Customer’s employees) arising out of or resulting from the performance of this Agreement or its subcontractors, agents, or employees except to the extent (but only to the extent) caused by the actions of the other party, its agents or employees.

13. Liabilities and Claims for Product Loss

13.1. Service Provider shall be liable to Customer for loss, damage or injury to the Product while the Product is in its custody, possession or control except to the extent and only to the extent of such loss, damage or injury results from (i) acts of God, the public enemy or public authority, (ii) inherent vice or nature of the Product, or (iii) the acts of the Customer, shipper, or Customer’s agent(s). Notwithstanding the foregoing, Customer shall be liable for loss, damage or injury to the Product as well as Service Provider’s trailer to the extent such Product and trailer is under Customer’s custody, possession or control.

13.2. The measurement of the loss, damage or injury to Product shall be the Standard Legal Limit of Liability of $2.00/lb ($4.41/kg) unless otherwise stated on the operative Bill of Lading, in which case damage shall be based upon Wholesale Invoice Cost. Where the Customer has indicated a Declared Value on the Bill of Lading (or other Shipping Document completed by the Customer or Customer’s agent), the amount of any loss or damage (as determined by an Independent Adjuster appointed by the insurer) for which Service Provider shall be liable shall not exceed the amount of the Declared Value. In the event that the Product or any part therefore is deemed not repairable, the control and disposal of the salvage items will be handled by Service Provider or its agent(s).

13.3. Service Provider shall not be liable for loss, damage or delay to any Product carried under the Bill of Lading unless notice thereof setting out particulars of the origin, destination and date of shipment of the Product and the estimated amount claimed in respect of such loss, damage or delay is given in writing to Service Provider within sixty (60) days after delivery of the Product or, in the case of failure to make delivery, within nine months from the date of shipment. The final statement of the claim must be filed with Service Provider within nine (9) months from the date of shipment, together with a copy of the paid freight bill/invoice.

13.4. Under no circumstances will Service Provider be liable for consequential damages.

14. Insurance

14.1. Service Provider shall ensure that the following insurance with respect to the Services is procured and maintained:

14.1.1. Commercial General Liability, including the standard Insurance Service Office Broad Form Endorsement, with not less than a $2,000,000.00 (Canadian $) combined single limit for bodily injury or death to persons and property damage on an occurrence form, naming the Customer as an additional insured;

14.1.2. Automobile Liability Insurance covering all owned, leased, hired or borrowed vehicles and employers non-owned liability with not less than a $2,000,000.00 (Canadian $) combined single limit for bodily injury or death to persons and property damage on an occurrence form, naming the Customer as an additional insured;

14.1.3. Motor Carrier’s Cargo Insurance coverage in an amount not less than $250,000 (Canadian $) per vehicle; and

14.1.4. Any additional insurance coverage or any increases in any of the foregoing amounts as required by applicable Canadian or Provincial law, rule or regulation or by the Provincial Transportation Regulatory Body or as the Customer may from time-to-time reasonably require.

14.2. Upon written request by the Customer, Service Provider shall provide, or cause to be provided, to the Customer a certificate(s) of insurance evidencing the foregoing coverage.

15. Force Majeure

15.1. If either Party shall be prevented or delayed from performing any of its obligations hereunder by reason of any Act of God, strike, threat or imminent strike, walkout, labour disruptions, fire, war, insurrection or mob violence, requirement or regulation of government or governmental authority or unavoidable casualty, or any act or event which is beyond the reasonable control of a Party, then, and in any such event, such failure to perform shall not be deemed a breach of the Terms or the basis of any claim for damage hereunder. Performance of any of the obligations of the Party so prevented or delayed shall be suspended during such period of disability and the Party so delayed shall use reasonable diligence either through itself or of an affiliate or subsidiary to remove such causes of disability as may occur from time to time. The inability of a Party to obtain funds shall not be deemed as a force majeure under this clause. If a Party is affected by force majeure prompt notice shall be provided to the other Party to be confirmed in writing. The Party affected shall use all reasonable efforts to rectify the cause. The Customer has the right to secure transportation elsewhere during the periods of force majeure. In no event shall a Party hereto be liable for any indirect, consequential or special damages in respect of any such delay. Service Provider’s decision not to deliver to a location that is the subject of a labour disruption shall be deemed to be an event of force majeure hereunder.

16. Mediation

16.1. If a dispute arises between the Parties relating to the Terms or the provision of Services, the Parties agree to use the following procedure prior to any Party pursuing other available remedies:

16.1.1. a meeting shall be held between the Parties promptly after the dispute has arisen at which time the Parties will attempt in good faith to negotiate a resolution of the dispute;

16.1.2. if, within 30 days after such meeting, the Parties have not succeeded in negotiating a resolution of the dispute, the dispute shall be submitted to mediation;

16.1.3. the Parties will jointly appoint the mediator and will bear equally the costs of the mediation;

16.1.4. the Parties agree to participate in good faith in the mediation and related negotiations for a period of 30 days; and

16.1.5. if the Parties are not successful in resolving the dispute through the mediation, then a Party may commence litigation proceedings.

17. General

17.1. The Terms shall be governed by the laws of the province of Ontario.

17.2. The failure of any Party to exercise any right granted hereunder shall not impair or be deemed to be a waiver of such Party’s privilege of exercising such right at any subsequent time or times, except where specifically stated.

17.3. Service Provider is an independent contractor and nothing herein is intended to constitute Service Provider as an agent, partner or employee of the Customer. Service Provider has no authority to assume or to create any obligation or liability, express or implied, on behalf of or in the name of the Customer, unless provided for herein.

17.4. No provision of the Terms shall be deemed to be waived as a result of the failure of any party hereto to require the performance of any term or condition or by other course of conduct. To be effective, a waiver must be in writing, signed by each of the parties hereto and must state specifically that it is intended to constitute a waiver of a term or breach of the Terms. The waiver by any party hereto of any term or breach of the Terms shall not prevent a subsequent enforcement of such term or any other term and shall not be deemed to be a waiver of any subsequent breach.