CANADIAN CUSTOMS TERMS AND CONDITIONS OF SERVICE
SCHEDULE A
CANADIAN SOCIETY OF CUSTOMS BROKERS (12-2023)
STANDARD TRADING CONDITIONS
These are the Standard Trading Conditions which govern the business
practices of members of the Canadian Society of Customs Brokers (“CSCB”). By signing or otherwise
agreeing to, accepting and/or acting under the authority of the Agency
Agreement and Power of Attorney, each of Client and Customs Broker agrees to be
bound by the Agency Agreement and Power of Attorney, these Standard Trading
Conditions attached to the Agency Agreement and Power of Attorney, the CARM
Terms and Conditions for Pre-CARM GAA (“CARM Terms”) (applicable if the parties
have signed the pre-CARM GAA form), and the terms and conditions of the CARM
Client Portal, 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 CSCB form of 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
Client to appoint 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 (“CBSA”), 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/or export of goods
into and/or from Canada.
“CARM
Client Portal” means the electronic client portal for CBSA’s Assessment and
Revenue Management system, as amended from time to time.
“Client”
means that individual, partnership, association, entity or corporation at whose
request or on whose behalf, either directly or indirectly, Customs Broker
undertakes any business or provides advice, information or services, and/or who
is named as the Client or recipient of services in the Agency Agreement and
Power of Attorney or in the CARM Client Portal.
“Customs
Broker” means that individual, partnership, entity or corporation
licensed by the CBSA, other CGAD, or other authorized body, to engage in the
business of a customs broker and who is named as the Customs Broker, service
provider or entity with delegated authority in the Agency Agreement and Power
of Attorney or in the CARM Client Portal.
“Disbursements”
means any payment made by Customs Broker, on Client’s behalf, for any product
or service rendered in connection with the facilitation of the import and
export of goods, including any Government Charges, additional taxes, freight,
storage, penalties, interest, fines, and any other amounts, charges or
payments, including payments for goods on COD shipments, made by Customs Broker
on Client’s behalf.
“Disbursement
Fees” means those fees charged by Customs Broker to Client in
connection with arranging, facilitating, assisting with, making and/or managing
any Disbursements.
“Fees”
has the meaning set out in Section 2(a), and includes Disbursement Fees.
“Government
Authority” means any department or agency, or successor department or
agency thereof, of any government other than a CGAD having jurisdiction over
the import and/or export of goods into and/or from Canada.
“Government
Charges” means those duties, taxes, penalties, interest, fines,
expenses, fees, claims, liabilities or other charges or levies imposed by CGAD
or other applicable Government Authority in respect of imported or exported
goods including goods imported into Canada, exported from Canada or reported,
released and/or exported or to be reported, released and/or exported 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, all as amended from time to time.
“Losses”
means losses, damages, delays, costs, injuries, fees (including legal fees and
expenses), liabilities, expenses, actions, suits, proceedings, demands and
claims of any kind or nature whatsoever.
“Services”
means those customs broker services, from the list set out in Annex 1 and/or as
otherwise set out in the CARM Client Portal and/or requested by Client, which
Client requires and Customs Broker agrees to provide, or which are reasonably
required to be performed by Customs Broker as ancillary to the primary services
that it is performing for Client.
“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 Customs Broker may retain as its own
agent in connection with the Services, or part thereof, that Customs Broker
performs for Client.
2. Fees
and Disbursements
(a)
The fees for
Services shall be in accordance with the fee schedule as agreed upon between
Client and Customs Broker, as amended from time to time (“Fees”).
(b)
Client shall
promptly reimburse Customs Broker for all Disbursements incurred by Customs
Broker on Client’s behalf.
3. Invoicing and Payment
(a)
Customs Broker
shall issue invoices to Client for all Fees and Disbursements pertaining to the
Services.
(b)
Promptly upon
receipt of invoices hereunder, Client shall pay to Customs Broker, in cash or
by other immediately available and irrevocable funds delivery as agreed to by
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.
(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 Customs
Broker owes any amount to Client, Customs Broker may set-off that amount owing
to Client as against any amount Client owes to Customs Broker.
4. Advancement of Funds
(a)
Upon Customs
Broker’s request, Client shall, prior to Customs Broker’s release of any shipment
of goods imported by Client, promptly provide to Customs Broker sufficient
funds to enable Customs Broker to pay on Client’s behalf all Disbursements that
are estimated by Customs Broker to be payable in connection with such shipment.
(b)
If, at any
time, Customs Broker or a CGAD determines that additional funds are required
with respect to goods imported by Client, Client shall, upon demand of either
Customs Broker or a CGAD, promptly advance such additional funds to Customs
Broker.
(c)
If, after
payment of Disbursements by Customs Broker concerning the goods imported by
Client, any balance of funds remains outstanding to Client’s credit, Customs
Broker shall promptly return to Client any remaining balance of funds,
i. unless otherwise instructed by Client; or
ii. unless there are past due accounts owing by Client to Customs Broker in
which case Customs Broker may, on notice to Client, pay its outstanding Fees
and/or Disbursements (or part thereof) from the said remaining balance of
funds.
(d)
If Client fails
to advance funds to Customs Broker when requested by Customs Broker or a CGAD, Customs
Broker shall have no obligation to render or perform any Services for or on
behalf of Client, and Client shall be responsible, and reimburse, defend, indemnify
and hold harmless Customs Broker, for all Losses in connection therewith.
5. Client Duties and Responsibilities
(a)
Client shall,
at no charge to Customs Broker:
- promptly provide to Customs Broker (A) all information and
documentation related to Client’s import and export transactions, (B) full
delegated authority, visibility, user access, privileges (including in
each section and all components of each section) in the CARM Client Portal
necessary for Customs Broker to provide the Services and to act upon and
fulfill the authority and direction delegated to Customs Broker by Client,
whether within or outside of the CARM Client Portal, (C) all account
(including Client’s CARM Client Portal business account), profile, audit
and other reports, data, details, information, declarations and documents
of any rulings arising from filings by Client itself and/or by any third
parties for Client, (D) all information required to complete a CGAD’s
documentation and/or furnish required data to a CGAD or other applicable Government
Authorities, and (E) any other information and/or materials that may be
relevant or helpful to Customs Broker to perform the Services required by
Client, including for Customs Broker to deal with any rulings from CBSA,
manage and/or make filings or adjustments for Client, and to make
modifications (including database updates) for future transactions;
- promptly (A) review all documentation and/or data, (B) notify
Customs Broker in writing of any discrepancies, inaccuracies, errors or
omissions found therein, and (C) request corrections and/or adjustments in
writing, all within 60 days of the date of the occurrence of such
discrepancy, inaccuracy, error or omission, and/or required correction or
adjustment, with Client acknowledging and agreeing that Customs Broker
shall not be liable for performing any adjustments, accounting entries or
corrections, advance rulings, commercial accounting declarations or any
services related thereto, nor shall Customs Broker be liable for any
Losses, of whatever kind or nature and howsoever incurred or arising, as a
result of any of the foregoing, including any discrepancies, inaccuracies,
errors or omissions related to filings, rulings, commercial accounting
declarations and/or any adjustment or correction requests, or as a result
of Customs Broker’s delay or failure to notify Client of any informal
(i.e., nudges) or formal notices (i.e., compliance verification or
validation letters and directed compliance letters) or notifications posted
by CBSA in Client’s CARM Client Portal business account, including those
regarding actual or potential non-compliance, all of which remain Client`s
responsibility; all Losses and any damages of any kind, whether direct,
indirect, incidental, special or consequential, including with respect to
any gratis or “free of charge” services performed by Customs Broker, shall
be subject to the limitations of liability set out in these Standard
Trading Conditions; and
- reimburse, defend, indemnify and save harmless Customs Broker with
respect to each matter set out in this Article 5 and against any and all
Losses which result from or arise in connection with any discrepancies, inaccuracies,
mistakes or omissions in the information, documentation, access,
privileges and/or visibility (whether within or outside of the CARM Client
Portal) provided to Customs Broker by Client or its employees,
representatives and/or agents and relied upon by Customs Broker and/or its
own Sub-Agents.
(b)
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 Services of Customs
Broker; (ii) it has full power and authority to retain and appoint as agent and
attorney and authorize and instruct Customs Broker including as set out in the
Agency Agreement and Power of Attorney and/or in the CARM Client Portal; and
(iii) all information, documentation, declarations, access, privileges and/or
visibility (whether within or outside of the CARM Client Portal) provided to Customs
Broker is complete, true and accurate. Client acknowledges that Customs Broker
is relying on such information, documentation, declarations, access, privileges
and/or visibility (whether within or outside of the CARM Client Portal) to
provide the Services.
(c)
Client is
solely liable and responsible for each and all of the:
- Disbursements made by Customs Broker on Client’s behalf;
- Charges of any kind or nature whatsoever arising, levied or charged
in connection with the import and/or export of any goods, as Client is at
all times the importer/exporter (regardless of whose business number is
used, who any CGAD or other Government Authority identifies as the
importer of record, and/or any liability assessed by any CGAD or other
Government Authority);
- Acts of Customs Broker in the performance of the Services as agent
of and for Client; and
- Losses incurred or sustained by Customs Broker in relation to, or
arising from its provision of Services to Client, including paying any
amounts on Client’s behalf to any party and/or to Client’s account.
6. Customs Broker Duties and Responsibilities
(a)
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 Client is, and shall be kept, confidential by Customs Broker, its
Sub-Agents and service providers, other than legal counsel, if applicable, and
shall only be released to a 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 Client to
Customs Broker to release confidential information, or any part thereof, to
third parties.
(c)
Customs Broker
shall take all reasonable steps to provide the Services in accordance with Client’s
instructions, provided however, that if in Customs Broker’s judgment it is in Client’s
interest to depart from Client’s instructions, Customs Broker is hereby
instructed and directed to do so and shall be reimbursed, defended, indemnified
and saved harmless by Client for all Losses incurred in so doing.
(d)
Customs Broker
shall provide to Client in respect of each transaction or summary accounting
made on Client’s behalf a copy of the commercial accounting declaration and
data pertaining thereto.
(e)
Customs Broker
shall, subject to its set-off rights, promptly account to Client for funds, if
any, received by Customs Broker to the extent that these funds are:
- for the credit of Client from the Receiver General for Canada or
other applicable Government Authorities; or
- from Client by way of advances provided in Section 4 in excess of
the Disbursements payable in respect of Client or Client’s business; and
- not otherwise owed by Client to Customs Broker (i.e., as an example
only, where Customs Broker pays any amount to a Government Authority or a
CGAD on account of Customs Broker’s error, but the Government Authority or
the CGAD credits or pays Client, rather than Customs Broker, for such
amount).
(f)
Customs Broker
shall not be liable for any Losses resulting from or caused in any part by (i) Client’s
negligence, misconduct or breach or for anything which it may do or refrain
from doing, including Client’s failure to review or maintain its CARM Client Portal
business account or to respond to or comply with all notices and notifications
posted by CBSA therein; (ii) any act of God, unavoidable delay or event, supply
chain or delivery issues, prohibition, ban, restriction and/or emergency
measure imposed by applicable authorities, global health emergency, pandemic,
epidemic and/or outbreak of infectious or communicable diseases, any service or
access disruptions or failures regarding or affecting the CARM Client Portal or
any systems of any CGAD or other applicable Government Authorities, third party
hosting, operation, maintenance, system or portal issues, general service
interruptions, technical, access or other failures or inability to access the
internet, or other act or cause beyond Customs Broker’s reasonable control; or
(iii) Customs Broker’s failure to provide, or delay in providing, the Services
as a result of or due to the operation of the Applicable Laws (including those
related to the CARM Client Portal), or the applicable laws of any other country
that affects the Services, or a change in the policies of any CGAD or other
applicable Government Authorities. Each
event listed in (ii) or (iii) above is called a “Force Majeure Event”).
(g)
Customs Broker
shall use its commercially reasonable efforts, in accordance with industry
standards, to advise Client on matters referred to Customs Broker. Client (i)
acknowledges that Customs Broker has given no assurances, representations or
warranties to Client regarding the outcome of these matters, and (ii)
understands that there is no guarantee of any specific results from the
Services.
7. Limitations of Liability
(a)
Notwithstanding
any other provision of these Standard Trading Conditions, the Agency Agreement
and Power of Attorney, the CARM Terms, or the terms and conditions of, or any
delegation of authority or direction in, the CARM Client Portal, (A) neither
Customs Broker nor 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, the
CARM Terms, the CARM Client Portal, any Force Majeure Event or unavoidable
delay, or event beyond its reasonable control; and (B) Customs Broker shall not
be liable for any loss of profit, loss of revenue, loss of use or opportunity or
other like damages or losses, or damages arising in tort, whether or not known
or contemplated, in connection with any of the Services, these Standard Trading
Conditions, the Agency Agreement and Power of Attorney, the CARM Terms and/or
the CARM Client Portal.
(b)
Notwithstanding
any other provision of these Standard Trading Conditions, the Agency Agreement
and Power of Attorney, the CARM Terms, or the terms and conditions of, or any
delegation of authority or direction in, the CARM Client Portal, and regardless
of whether Customs Broker uses its own, or Client’s, business number for any of
the Services, Client expressly acknowledges and agrees that (A) Customs Broker
is not responsible for any aspect of the operation, hosting, maintenance and/or
functioning of the CARM Client Portal, or any aspect of health, revenue, product
liability, safety, security and/or other liability in connection with the CARM
Client Portal, any Services provided by Customs Broker and/or any goods dealt with
by Customs Broker, including any liabilities resulting from or assessed by any
CGAD or other Government Authority, and Customs Broker is not
liable in any way to the extent that Customs Broker is unable to access the
CARM Client Portal and/or to perform any of the Services due to the status of
the CARM Client Portal or any incomplete or inaccurate information, documents
or materials provided to Customs Broker by Client; (B) Client is at all times
the importer/exporter of and for the goods; (C) Customs Broker is acting at all
times as Client’s agent, for and on behalf of Client as the principal at and in
law, without any liability to Customs Broker; and (D) any Disbursements or
other amounts paid by Customs Broker (or its Sub-Agent) on Client’s behalf
and/or to Client’s account, shall be a debt due by Client to Customs Broker.
8. Termination
In the event that the Agency Agreement and
Power of Attorney is terminated and there are any outstanding matters pertaining
to Client for which Customs Broker has been engaged by Client and for which
Customs Broker remains liable to make payment and/or to complete and/or file
documentation (including any accounting, accounting entries and reports, and/or
commercial accounting declarations), the Agency Agreement and Power of Attorney
(with these Standard Trading Conditions and the CARM Terms (if the parties have
signed the pre-CARM GAA form)) shall continue in force with respect to such
matters until such matters are concluded and payment by Client to Customs
Broker of such funds as may be required to satisfy all outstanding payment and
other outstanding obligations and liabilities of (a) Customs Broker to a CGAD
and/or others and (b) Client to Customs Broker, a CGAD and/or others (including
all Fees and Disbursements), has been made by Client. Client acknowledges and
understands that the delegated authority and visibility granted by Client to
Customs Broker in the CARM Client Portal must remain active, in force and
effect, and not be terminated or caused/allowed to expire, until Customs Broker
has performed and completed all such matters.
9. Governing Law; General
These Standard Trading Conditions are
governed by the laws of the Province or Territory in Canada within which
Customs Broker has its principal place of business, and the federal laws of Canada
applicable therein, and 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 and the CARM Terms (if the parties
have signed the pre-CARM GAA form), enure to the benefit of and are binding
upon the parties and their respective executors, administrators, successors and
permitted assigns.
Where the parties 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.
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, unamended.
The words “include” and “including”
mean “including without any limitation or restriction”.
Customs Broker Services
Customs Broker will provide to Client import
and export services, and ancillary services related thereto, when requested by Client
and accepted by Customs Broker, including as delegated to Customs Broker within
the CARM Client Portal, which services may include, but are not limited to, any
of the following:
(i) setting up, managing and/or administering Client’s CARM Client Portal
business account;
(ii) facilitating and/or assisting with the process of Client obtaining or
posting a bond, financial security or other security, and/or monitoring the
sufficiency of same, on Client’s behalf;
(iii) applying for a business number for Client and/or on its behalf;
(iv) assisting Client in the preparation of information required by a CGAD
with respect to trade-related matters including the importation of goods into
Canada by Client and/or the exportation of goods from Canada by Client;
(v) presenting information, by any acceptable means, on behalf of Client to a
CGAD as required, to report, release and/or account for Client’s goods
including information as may be required for in-bond transportation within
Canada;
(vi) arranging for, managing, making and/or paying any requisite Government
Charges and/or Disbursements by or on behalf of Client and obtaining release of
goods from a CGAD;
(vii) making arrangements for delivery and transportation of goods;
(viii) assisting Client in preparing and presenting information required by
domestic and foreign jurisdictions including a CGAD and other applicable Government Authorities
with respect to trade-related matters and/or goods imported into or exported from
Canada by Client;
(ix) providing information and advice concerning Applicable Laws pertaining
to trade-related matters and/or the import into Canada and the export from
Canada of Client’s goods;
(x) providing advice on tariff classification, value for duty, origin and
any other relevant federal or provincial requirements relating to the import or
export of goods;
(xi) providing advice on federal and provincial tax implications, payment
options and any other tax requirements concerning Client’s imported goods;
(xii) providing advice concerning, and/or facilitating and assisting with,
Government Charges, refunds, credits, adjustments, payments, drawbacks and/or
remissions, advance rulings and matters related to classification, valuation
and origin, post-transaction/entry accounting corrections, classifications,
origin matters, valuation and other adjustments, as well as appeals of tariff
classification or value for duty decisions and/or other decisions of a CGAD;
(xiii) preparing and filing refunds, appeals, drawbacks and remission
applications, as well as advance ruling requests;
(xiv) assisting with or offering quality control audits to or for Client;
(xv) providing consulting, advice, information and assistance to Client on
matters pertaining to the seizure, detention, and forfeiture of goods;
(xvi) offering or providing a payment service, with or without any credit
service; and
(xvii) providing consulting, advice, information and assistance on all other
matters necessary and incidental to the foregoing Services, or other services
reasonably required to be performed by Customs Broker as ancillary to the
primary services that it is performing for Client;
in each case, all the foregoing at and
subject to the instructions of and on behalf of Client.