Malca-Amit Express

Terms and Conditions of Service

Customer, by becoming an approved user/account of MA Express Shipping Service requests Malca-Amit Canada Inc., with a principal office at 27 Queen Street East, Suite 702, Toronto, Ontario, M5C 2M6, Canada to perform the following Services, and signifies its acceptance of these Terms and Conditions of Service (hereafter: "Agreement"):

  1. Definitions

    Definitions of terms used in this Agreement are as follows:

    1. "Malca-Amit" refers to Malca-Amit Canada, Inc. and any of their respective agents and/or subcontractors, or affiliated companies. Malca-Amit is a private, contract carrier and not a common carrier, nor an Insurer of Customer‘s Property and the services being provided under this Agreement by Malca-Amit and/or its agent's or sub contractor(s) are of a special and individualized nature, conforming to the needs and requirements of Customer for the secure delivery of its Property.
    2. "Customer" refers to the company and/or individual who has been approved to use MA-Express Shipping Service, in written or electronic form by Malca-Amit, and includes Customer's designated agents, servants and employees.
    3. "Property" refers to polished and/or cut diamonds, semi-precious stones, jewelry and watches.
    4. "Courier" shall mean FedEx, UPS, DHL, or other courier company.
    5. "Shipping Box" refers to the oversized outer container or box that is approved by the Courier servicing the destination of the Shipment.
    6. "Shipment" or "Parcel" shall mean an item or items of Property properly packed and sealed in a Shipping Box that is collected at any one place at any one time, which is, or are consigned for delivery to a single consignee at a single location or destination. An "item" shall mean any package, parcel, container or receptacle of any kind used to hold the Property that is packed and securely sealed within a Shipping Box.
    7. "MAEX-Shipment" refers to any Shipment handled by Malca-Amit under this Agreement, including but not limited to "MAEX-Remote Shipment" and "MAEX PickUp Shipment", as more fully described in Section 2.
    8. "Destination", "Consignee" "Addressee" and "Recipient" refers to the recipient at a location designated by Customer as the completion point of the service that Malca-Amit is providing to Customer for each MAEX-Shipment handled under this Agreement.
    9. "Manifest" refers to the "MA-Express Service - Shipping Manifest" which is a document that forms an integral part of this Agreement and is provided by Malca-Amit in written form or as a shipment order form on the Malca-Amit Express Website ("MAEX-Website"), where available (subject to the Website's Terms of Use), that is to be completed by Customer providing details and instructions, including selection of MAEX Service desired, for the forwarding/handling of each MAEX Shipment under this Agreement.
    10. "MAEX Shipping Rules" refers to the "MAEX Shipping Rules and Restrictions" contained on the Manifest and on the MAEX-Website where available (subject to Website terms of use), and form an integral part of this Agreement.
    11. "MAEX Shipping Number" refers to the number issued or assigned by Malca-Amit and submitted to Customer in writing, either by facsimile, electronic mail through the internet ("email") or internet transmission through MAEX–Website (where available) which shall confirm acceptance of the MAEX-Shipment for the service selected, subject to this Agreement and the MAEX Shipping Rules.

  2. MAEX Services and Responsibilities

    Any MAEX-Service performed by or on behalf of Malca-Amit is undertaken pursuant and subject to the terms and conditions set forth herein and any document or MAEX-Website terms (where available) that forms an integral part of this Agreement, including but not limited to MAEX Shipping Rules.

    1. MAEX-Remote Service is available only for the forwarding of distinctively and securely sealed Parcel(s) said to contain Property by a Courier approved by Malca-Amit that is (are) delivered to the Courier by Customer, properly pre-labeled as required by MAEX Shipping Rules, for carriage by the Courier ("MAEX Remote Shipment"), subject to the following conditions:

      1. Malca-Amit agrees to accept liability for the forwarding of a MAEX Remote Shipment, from the time the MAEX-Shipment is accepted and received by the Courier, evidenced by a signed receipt from the Courier, until the MAEX-Shipment is delivered to the designated Recipient, subject to the MAEX Shipping Rules and the other conditions of this Agreement.
      2. Malca-Amit's responsibility for the MAEX Remote Shipment shall not commence until the Courier issues a valid written or electronic evidence of the acceptance of the Shipment ("Receipt") and Malca-Amit has issued or assigned a MAEX-Shipping Number as detailed herein. If no such Receipt and MAEX-Shipping Number has been issued/assigned, then Malca-Amit shall bear no liability for loss of or damage to any such MAEX Remote Shipment.

    2. MAEX PickUp Service is available for the forwarding of distinctively and securely sealed Parcel(s) properly pre-labeled as required by MAEX Shipping Rules, said to contain Property that is (are) received by Malca-Amit for delivery to and onward carriage by a Courier approved by Malca-Amit ("MAEX PickUp Shipment"), subject to the following conditions:

      Malca-Amit agrees to accept liability for the forwarding of a MAEX PickUp Shipment from the time the MAEX-Shipment is accepted and received by Malca-Amit as evidenced by issuance of a signed receipt from Malca-Amit, until the MAEX-Shipment is delivered to the designated Recipient by an approved Courier, subject to the MAEX-Shipping Rules and the other conditions of this Agreement.

    3. It is noted and agreed by the Parties that Malca-Amit has no responsibility to ascertain and is unable to verify the contents of any MAEX-Shipment and assumes no liability for any shortage claimed to any Shipment contained within a distinctively sealed and secured Shipping Box that is delivered in a sealed condition without any signs of tampering.
    4. Malca-Amit's liability for any MAEX Shipment shall terminate when the MAEX Shipment has been signed for at destination or other Courier location by the Recipient or apparent representative (i.e. concierge, doorman, front desk clerk, security guard, residential occupant or other functionary at the designated address). Notwithstanding the foregoing, in the event a MAEX Shipment is delivered at destination based upon Release Signature on file with a Courier by Recipient or Recipient's delivery address (meaning no signature is obtained at destination), the Shipment shall be deemed delivered without being signed for by Recipient or its apparent representative and Malca-Amit's liability shall terminate upon deposit of the MAEX Shipment at the Recipient's address or at any other location authorized by Recipient with the Courier.
    5. Use of any MA-Express Service constitutes acceptance of these Terms and Conditions and the MAEX Shipping Rules by Customer, its agents, servants, employees and representatives.
    6. Malca-Amit may in its absolute discretion choose to perform the services or any part of the services by its own employees or agents or by sub-contractors or Courier. Every employee, agent or sub-contractor, performing services relating to the MAEX-Shipment is entitled to the benefit of every limitation and defense to which Malca-Amit is entitled under this Agreement.

  3. Customer Representations and Warranties; Indemnification

    CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT BY SIGNING THIS AGREEMENT, ALL OF THE FOLLOWING REPRESENTATIONS AND CONDITIONS ("WARRANTIES"), MUST BE MET AND/OR UNDERTAKEN BY THE CUSTOMER AS A CONDITION PRECEDENT TO ANY LIABILITY OF MALCA-AMIT UNDER THIS AGREEMENT FOR LOSS OF OR DAMAGE TO THE SHIPMENT:

    1. Customer is authorized to accept this Agreement not only for himself, but also as agent for, and on behalf of, (i) each company identified as being affiliated with Customer in paragraph 1 (b); and (ii) all other persons or entities who are or may become interested in the Property included in any MAEX-Shipment forwarded under this Agreement.
    2. Customer and any other party interested in the Property is bound by the terms of this Agreement and the MAEX-Shipping Rules and the Customer warrants that he is either the owner, or the authorized agent of the owner of the Property said to be contained in the MAEX-Shipment.

    3. That, prior to any MAEX Shipment leaving Customer's premises or control, Customer expressly warrants to undertake the following:

      1. To submit a Manifest to Malca-Amit detailing the MAEX Shipment and MAEX Service selected by the following methods, where available:

        1. Through Malca-Amit's Website by completing all required fields in the MAEX Shipment order website form and to electronically confirm each shipment details and service selected as required by the website form by a representative authorized to use Malca-Amit Website; or
        2. By transmission of a fully completed written Manifest form signed by an authorized representative of Customer to the designated Malca-Amit fax or email addresses, detailing each MAEX Shipment and MAEX Service selected; Customer further warrants that (a) the written Manifest detailing the MAEX Shipment (s) intended for shipment on any one day, will be received by Malca-Amit on the same day of shipping; and (b) not to surrender possession or control of any MAEX Remote Shipment detailed in the Manifest to a approved Courier prior to receiving a MAEX-Shipping Number, which shall constitute Malca-Amit's acceptance of liability for such MAEX Remote Shipment under this Agreement. Malca-Amit's Maximum Liability for any loss/damage to a MAEX Remote Shipment listed on the Manifest which are not confirmed by Malca-Amit as stated above, shall be limited to the actual damage sustained or $100.00, whichever is less; and
      2. To declare to Malca-Amit the actual value of the Property that has been placed in any one MAEX-Shipment and to maintain a complete value record of all Property said to be contained in a MAEX-Shipment. Customer expressly warrants that the aggregate value of Property placed in any one MAEX-Shipment shall not exceed the MAXIMUM SHIPMENT LIMIT applicable to the place of departure or destination, whichever is less, as set forth in the latest "MA-EXPRESS Rate & Destination Schedule", available for inspection at the office of Malca-Amit or where available, on the Malca-Amit Website ("Maximum Liability Limit").
    4. That the designated recipient of the MAEX-Shipment on the Shipping documents completed by Customer shall be available to accept delivery at designated destination at the anticipated date of delivery.
    5. Where applicable, to keep the original receipts issued by the Courier or Malca-Amit.
    6. That the Property said to be contained in any single MAEX-Shipment shall only consist of the following commodities: Polished and/or cut diamonds, semi-precious stones, jewelry and watches.
    7. That Customer, its agents, servants and/or employees shall only surrender possession or control of MAEX Shipments to either (i) a Courier approved by Malca-Amit for MAEX Remote Shipments; or (ii) to Malca-Amit for MAEX PickUp Shipments. The most current list of approved Couriers is available for inspection at the office of Malca-Amit or, where available, at MAEX-Website.
    8. That the Property is properly packed and sealed in a Shipping Box and all shipping documents are properly prepared/addressed in accordance with the MAEX-Shipping Rules and these terms and conditions.
    9. That Customer will never conceal or misrepresent any fact or circumstance concerning the Property or any MAEX-Shipment.
    10. That Customer shall not submit to Malca-Amit or approved Courier any MAEX-Shipment for transportation, the transportation, of which is, or would be, in violation of, or prohibited by, any applicable international laws or treaties or federal state, provincial, municipal or local laws, or may be dangerous or corrosive or may cause damage of any type to other property, life or health.
    11. That Customer will secure all necessary permits, franchises, licenses or other authorizations required to lawfully effect the exportation or importation of the Property to be transported between countries under this Agreement.
    12. Customer expressly warrants and agrees to retain ultimate responsibility and liability for all taxes, freight, duties, charges and other expenses, as well as any penalties, relating to the MAEX-Shipment and/or the Property said to be contained therein. Malca-Amit may, in its sole discretion, pay any customs duties or other charges relating to the MAEX-Shipment and Customer shall reimburse and hold harmless Malca-Amit for any amount so paid together with reasonable expenses, including attorneys' fees, incurred by Malca-Amit in connection with defending a claim or legal action and obtaining reimbursement from the Customer.
    13. Customer is responsible for verifying the correctness of any document prepared or issued in connection with the transportation of any MAEX-Shipment by the Courier, including but not limited to any supporting documentation (i.e., invoices, custom clearance authorizations or similar documents).
    14. That none of the activities or operations requested by the Customer under this Agreement, are in any way linked to money laundering or terrorist activities. That Customer shall provide whatever further information may reasonably be required by Malca-Amit, the Courier, or any governmental or quasi governmental organisation with respect to the MAEX-Shipment or any party interested in the Property. MAEX-Shipments may be subject to security controls by Courier, air carriers and government entities, and Malca-Amit will submit to all required security controls. On behalf of Customer and/or the Consignee, and all others with an interest in the MAEX-Shipment, Customer consents to a search of any MAEX-Shipment if and as required by any Courier, air carrier or government entity. Customer understands and agrees to Malca-Amit maintaining copies of shipping documents, as may be required by and in accordance with applicable laws.
    15. The Customer understands that civil and criminal penalties may be imposed, including forfeiture and sale of the shipment, for making false or fraudulent statements relating to the Property or any person who has or may have an interest in the Property or for the violation of certain applicable laws.
    16. Customer agrees to hold harmless and indemnify Malca-Amit and/or its agent(s) or sub contractor(s) from any and all damages, losses, expenses (including attorney fees), penalties, fines, liabilities or claims made at any time, or presented in any manner by any person or entity, with respect to and/or resulting directly or indirectly from the breach of any term(s) of this Agreement by Customer, including but not limited to the foregoing representations, warranties and undertakings.
    17. If any of the above warranties are breached, Malca-Amit's Liability, if any, for the loss of or damage to any MAEX-Shipment is limited to US$100.00 per Shipment, even if a higher value is declared to Malca-Amit.

  4. Malca-Amit's Liability for Loss of or Damage to MAEX-Shipment

    1. Malca-Amit's MAXIMUM liability for loss of or damage to a MAEX-Shipment ("Maximum Liability")shall be the lesser of the following:

      1. the actual value of the Property lost or damaged, or
      2. the value of the Shipment as declared by the Customer to Malca-Amit for liability purposes, or
      3. The "MAXIMUM SHIPMENT LIMIT" which is applicable to the place of departure or destination of the Shipment, whichever is less, as set forth in the latest MA EXPRESS Rate & Destination Schedule, available for inspection at the office of Malca-Amit or where available, the MAEX-Website.
    2. It is expressly understood and agreed that in the event Customer declares a MAEX-Shipment value exceeding the Maximum Shipment Limit then, any liability above the Maximum Shipment Limit, shall be the AT THE SOLE RISK AND PERIL of Customer and MALCA-AMIT's MAXIMUM LIABILITY shall not exceed the applicable MAXIMUM SHIPMENT LIMIT.
    3. Customer agrees to INDEMNIFY and HOLD Malca-Amit and/or its agent(s) or sub contractor(s) HARMLESS from any claim relating to loss of or damage to a Shipment in excess of MAXIMUM SHIPMENT LIMIT, including but not limited to taxes, VAT, judgment and reasonable defence/legal costs.
    4. If Customer fails to declare less than the full actual value, Malca-Amit will be liable only for loss up to, but not exceeding, the declared value in the same proportion that the declared value bears to the full actual value of the Property included in the MAEX-Shipment.

    5. If Customer fails to declare a value for any MAEX-Shipment the value of such MAEX-Shipment for the purpose of establishing Malca-Amit's MAXIMUM LIABILITY for the MAEX-Shipment shall only be the lesser of:

      1. The total of all shipment charges payable by the Customer relating to the affected MAEX-Shipment , or
      2. US$100.00.

  5. Exclusions from Malca-Amit's Liability

    Malca-Amit shall under no circumstances be liable for loss of or damage to a MAEX-Shipment damage, liability or expense directly or indirectly caused, contributed to or occasioned by, happening through, resulting or arising from or in consequence of any of the following:

    1. direct or indirect consequential loss or damage, to the MAEX-Shipment, including but not limited to loss of profits, revenue, business opportunity or reputation, whether or not caused by Malca-Amit's fault or neglect and whether or not Malca-Amit had knowledge that such loss or damage might be incurred; or
    2. (i) non-performance or delay; or (ii) shortage or mysterious disappearance or unexplained loss from or damage to the contents within any Shipment pertaining to this Agreement; or
    3. any loss or damage on any MAEX-Shipment of illegal or prohibited items; or
    4. any loss or damage of any kind whatsoever arising from the negligence or willful misconduct of the Customer, its employees or agents; or
    5. any loss or damage of any kind whatsoever to the MAEX-Shipment or its contents resulting from: (i) ordinary leakage, ordinary loss in weight or volume, shrinkage, or ordinary wear and tear; or (ii) inherent vice, defect or nature of the MAEX-Shipment or its contents; or
    6. any loss or damage sustained to a MAEX-Shipment and/or parcel, which is occasioned and/or caused by breach of, or the failure of the Customer, its agents, employees, and/or servants to comply with or fulfill any of its obligations and/or warranties under this Agreement and/or the MAEX Shipping Rules to the extent such breach or failure interferes directly or indirectly, with performance of Malca-Amit's obligations; or
    7. incorrect or insufficient description or valuation of the Property, whereby Malca-Amit's liability is reduced or extinguished; or
    8. war, civil war, revolution, rebellion, insurrection, or civil strife arising there from, or any hostile act by or against a belligerent power; or
    9. capture, seizure, arrest, restraint or detainment, arising from risks described in the preceding sentence, and the consequences thereof or any attempt thereat; or
    10. derelict mines, torpedoes, bombs or other derelict weapons of war; or
    11. (i) ionizing radiation from or contamination by radioactivity from any nuclear fuel or from any nuclear waste or from the combustion of nuclear fuel; or (ii) the radioactive, toxic, explosive or other hazardous or contaminating properties of any nuclear installation, reactor or other nuclear assembly or nuclear component thereof; or (iii) any weapon or device employing atomic or nuclear fission and/or fusion or other like reaction or radioactive force or matter; or (vi) the radioactive, toxic, explosive or other hazardous or contaminating properties of any radioactive matter. The exclusion in this sub-clause does not extend to radioactive isotopes, other than nuclear fuel, when such isotopes are being prepared, carried, stored, or used for commercial, agricultural, medical, scientific or other similar peaceful purposes; or (v) any chemical, biological, bio-chemical or electromagnetic weapon; or
    12. directly or indirectly caused by or contributed to by or arising from the use or operation, as a means for inflicting harm, of any computer, computer system, computer software program, malicious code, computer virus or process or any other electronic system; or
    13. confiscation, seizure, appropriation, expropriation, requisition for title of use or willful destruction of the Shipment, or portion thereof, by/or under the order of any Government (whether civil, military or de facto) and/or public authority.

  6. Reporting of Claims for Loss

    1. Customer under no circumstances is to submit any claim in writing to the Courier. All notice of claim is to be in writing and must be received by Malca-Amit within twenty-four (24) hours after discovery of any loss or damage but in no event more than fourteen (14) days from the date the MAEX-Shipment was delivered or should have been delivered.
    2. The Customer hereby authorizes Malca-Amit or its designated representatives to handle any and all matters relating to a claim for loss and/or damage for a MAEX-Shipment forwarded under this Agreement with the responsible Courier and shall execute any documentation required to effectuate this authorization.
    3. A lawsuit must be brought against Malca-Amit within six (6) months after either Malca-Amit or the Courier, as the case may be, received the MAEX-Shipment at place of departure. If such notice of claim is not provided, and/or lawsuit is not commenced within time specified, then any claim for loss or damage relating to the affected MAEX-Shipment shall be deemed waived and Malca-Amit shall not be obligated to honor such claim for loss or damage. It is specifically understood that Malca-Amit is neither an insurer nor an insurance intermediary nor an insurance broker hereunder.

  7. Consideration

    Invoices and remittance of payment to Malca-Amit due for services performed under this Agreement are payable within thirty (30) days from the date the invoice is issued.

  8. Agreement

    1. This Agreement shall remain in full force and effect for one year from the date hereof, and thereafter from year to year, subject to the right of either Party to terminate same at any given time by giving the other party 3 days written notice of the intention to terminate the Agreement. It is understood that such notification shall not relieve any Party from completing its duties and obligations as stated in this Agreement commenced or incurred prior and up to the date of termination. Notwithstanding the foregoing, Malca-Amit reserves the right to terminate or limit the availability of MA-Express Service from or to destinations at any time, upon written notice to Customer.
    2. This Agreement, the Manifest, MAEX Shipping Rules or any Endorsements, Exhibits or Schedules attached hereto, either published in written form or at MAEX-Website, where available, are hereby incorporated by reference as part of these Terms and Conditions of Service, and together comprise the complete and exclusive agreement between the Parties, and can only be modified or amended in writing, signed by both parties hereto or by electronic acceptance via use of the MAEX-Website, where available.

  9. Waiver

    The failure to insist upon strict compliance by either Party with respect to any of the terms or conditions hereto shall not be deemed a waiver or relinquishment of any such term or condition, nor shall any failure to exercise any right or power hereunder at any one or more times be deemed a waiver or relinquishment of such right or power at any other time or times.

  10. Severability

    If any provision contained or referred to herein is declared by a competent court to be contrary to applicable law or otherwise invalid or unenforceable, the validity and enforceability of the remaining provisions contained or referred to herein shall not be affected thereby and shall remain in full force and effect.

  11. Law and Jurisdiction

    The laws and competent courts of the state or country in which the Customer executed this contract to the exclusion of the laws of any other state or country, shall govern the validity of this contract, the construction of its terms and the interpretation of the rights and duties of the parties hereto. The competent courts of said state or country shall have exclusive jurisdiction to the exclusion of all other courts, to determine any claim, dispute or disagreement arising under or in connection with this contract, whether raised by way of claim, counter-claim, third-party claim, interpleader or in any other manner whatsoever. Customer and Malca-Amit hereby knowingly, voluntarily and intentionally waive the right either may have to a trial by jury in respect of any litigation based hereon, or arising out of, under or in connection with this contract or any course of conduct, course of dealing, statements, whether verbal or written, or action of or by either party. This provision is a material inducement for the parties to enter into this contract.