By instructing the Company to supply the Services, the Customer agrees to accept and be bound by the Company’s trading terms and conditions. All and any business undertaken by the Company shall be subject to the Company’s trading terms and conditions of contract which are as follows:
“Customer” shall mean the shipper (consignor), the receiver (consignee), the owner of the Goods, the bailor of the Goods or the person for whom any of the Services are arranged and/or performed.
“Goods” shall mean the chattels, articles or things tendered for by the Customer for the Services and shall include the container(s), unit load device(s) or other packaging containing the same and any other pallet(s) delivered with the same to the Company or Subcontractor by the Customer or for or on its behalf.
“Services” shall mean the carriage, transport, movement, packing, handling, storage/warehousing, customs clearance and/or any other service arranged or performed by the Company, pursuant to, or ancillary to, this contract with the Customer.
“Dangerous goods” shall mean such of the Goods as shall be, or become, in fact or at law noxious, dangerous, hazardous, explosive, radioactive, inflammable or capable by their nature of causing damage or injury to other goods, persons, plants or animals or to any thing including that in which theGoods are carried, handled or stored.
“Valuables” shall mean bullion, coins, precious stones, jewellery, antiques, or works of art.
“Perishable goods” shall mean Goods that shall be in fact or law liable to deteriorate in quality and/or value and shall include, but not be limited to, fruits, vegetables, dairy products, meat, etc.
“Subcontractor” shall mean and includeany person, firm or company (other than the Company) that arranges or performs the Services (or a part thereof).
“Carriage by Air Convention” – shall mean applicable legislation incorporating the Warsaw Convention (1929), the Warsaw Convention as Amended at the Hague (1955) and Warsaw supplementary protocols such as the “Guadalajara Convention”, Protocol of Montreal No. 4 or the Montreal Convention (1999).
Words importing the singular include the plural and vice versa and words importing any gender include all genders and words importing a person include firm, corporation or other entity where appropriate.
4. As agent or principal pursuant to clause 2(a) herein, the Customer hereby employs and authorises the Company to contract either in its own name or in the Customer’s name with any Subcontractor, and authorises any Subcontractor to contract the services of any other Subcontractor, for the performance of any of the Services agreed to be arranged or performed pursuant to, or ancillary to, this contract. Any such contract may be made on any terms of contract whatsoever used by the Subcontractor with whom the Company or Subcontractor may contract for such Service(s) including in every case terms which may limit or exclude liability in respect of the Service.In any event, the Company shall be entitled to the full benefits of all privileges, right and immunities available to any Subcontractor under such contract or compulsorily applicable law in respect of the Services provided. Any Subcontractor’s terms are available from the Company on request.
(a) that it is the owner of the Goods or otherwise has the authority of the owner or person having an interest in the Goods or any part thereof tosign the Company’s Letter of Instruction, other contractual document or otherwise accept and consign the goods upon and subject to these conditions.
(b) that the person releasing or delivering the Goods to the Company is authorisedto sign the Company’s Letter of Instruction, other contractual document or otherwise accept and agree to these conditions on the Customer’s behalf.
(c) the adequacy of packing, stowing and suitability of the Goods for the Services contracted and accuracy of all markings and brandings of the Goods, descriptions, values and other particulars furnished to the Company for the carriage, customs, consular and any other purposes and undertakes to indemnify the Company against all loss, damage, expenses and fines arising from any inadequacy, unsuitability, inaccuracy or omission in this respect.
(d) that the performance of any Service provided or arranged by the Company to effect the instructions of the Customer in respect of the Goods shall not be in breach of any law.
7 (a) Subject to the terms and conditions in this contract and mandatory applicable statute, convention or law, the Company shall not be liable for any loss or damage suffered by the Customer or any other person, howsoever caused or arising, whether:
(b) In all cases where liability cannot be excluded by this agreement because of mandatory applicable statute, convention or law, the liability of the Company is limited to the less of AUD$100.00 or the value of the Goods the subject of the agreement at the time the Goods were received by the Company.
(c) In all cases where liability cannot be limited or excluded by this agreement because of mandatory applicable statute, convention or law including any legislation making compulsorily applicable a Carriage by Air Convention, the Hague Rules, the Hague-Visby Rules, or the Hamburg Rules, or adaptations thereof, [such as the Australian Carriage of Goods by Sea Act (1991), the New Zealand Maritime Transport Act (1994), or the Carriage of Goods by Sea Act of the United States (1936) – all as amended from time to time], the provisions of the applicable statute, convention or law shall be deemed incorporated herein and any rights, immunities and/or defences therein shall be available to the Company. For the purpose of determining the extent of the Company’s liability for loss of or damage to the Goods under any mandatory applicable legislation, the value of the Goods lost or damaged is agreed to be the invoice cost value.
(d) In all cases where liability cannot be excluded or limited by this agreement for breach of any condition or warranty in respect of the Servicespursuant to statute or otherwise, the liability of the Company is limited to any one or more of the following as determined by the Company at its absolute discretion:
(e) Without limiting the generality of the foregoing, the Company shall in no circumstances be liable for loss or damage other than to the Goods, including direct, indirect or consequential loss or damage arising from the Services performed in respect of the Goods including loss of market, loss of profit or loss of contracts howsoever caused. The rights, immunities, defences and limits provided for in these conditions shall apply in any action against the Company for loss or damage whether the action be found in contract, bailment, tort or otherwise notwithstanding any breach of the contract or condition hereof by the Company.
(f) Further without limiting the generality of the foregoing, the Company shall not be liable for any loss or damage suffered by the Customer or any other person as a result of a failure or inability of the Company or Contractor to collect or receive C.O.D. payments from any consignees or their agents whether caused by the negligence of the Company’s servants, agents, employees, Contractors or otherwise.
(g) No declaration of value will be made for the purpose of extending liability and the Goods will be forwarded or dealt with at the Customer’s or owner’s risk unless express written instructions to the contrary are given by the Customer and accepted in writing by the Company and extra charge paid if required by the Company.
(h) It is hereby agreed between the Customer and the Company that the Customer’s right to compensation for any claim for loss or damage will only be maintained provided the following is strictly adhered to:
(i) Any claim for loss or damage must be lodged in writing to the Company within 7 days of delivery of the Goods or the date Services are completed, whichever date occurs first;
(ii) Any claim for loss/non-delivery of Goods must be notified in writing to the Company within 60 days from the date the Goods should have been delivered or the Services should have been completed, whichever date occurs first;
8. (a) Upon negotiation with the Customer in writing, the Company may agree to greater responsibility and liability than set out in the sub-paragraphs (a) to (g) of the above provision upon payment of additional charges by the Customer as required.Applicable rates for greater responsibility and liability are available upon request.
(b) The Company will arrange insurance on the Customer’s behalf on express instructions in writing by the Customer and only if the Company is licensed to do so pursuant to applicable Australian regulations. The Company shall be under no obligation to advice or choose the type of cover nor the terms of any policy for the Customer which will be arranged between the insurance company and the Customer. The Company shall not be under any obligation to effect separate insurance on each consignment but may declare it on any general policy. Should such insurers dispute liability for any reason, the Customer as the insured shall have no recourse against the Company whatsoever and any recourse by the Customer shall be against the insurer. Failing the Customer’s express instruction as aforesaid, the Customer should seek its own insurance cover.
9 (a) The Customer shall be responsible for the cost of, and arranging for, the loading and unloading of the Goods on and from the relevant transportation vehicle.
(b) In the event that there is a delay in the loading or unloading of the Goods by reason other than the default of the Company or Subcontractor, the Customer shall be liable for the Company’s expenses incurred by reason of the delay, including demurrage costs as notified by the Company orally or in writing from time to time or available upon request.
(c) The Customer shall provide adequate and suitable facilities and equipment for loading and unloading the Goods from the relevant transportation vehicle. The Customer also warrants that the Goods will be suitable for carriage in such vehicle.
(d) The Customer has the right to inspect the transportation vehicle before the loading of the Goods. Absent any inspection and complaint, the transportation vehicle will be deemed to be in adequate and suitable condition for the carriage of the Goods. Thereafter, the Customer shall have no rights against the Company with respect to the condition of the vehicle and the Company will have no liability in respect of any loss or damage caused by the inadequate or unsound condition of the vehicle.
(b) Without limiting the generality of the foregoing, the Customer shall remain responsible to the Company for all charges (C.O.D. or otherwise) paid by the Company to any of its agents, Subcontractors or any other party or authority.
(c) The Customer shall indemnify the Company in respect of any loss or damage arising from any inherent defect, quality or vice of the Goods.
(a) pay any duties, taxes, imposts, outlays, costs or charges in respect of the Goods and/or Services
(b) release or allow inspection of the Goods or any information and/or documents of the Customer, the Goods, the Services or relating theretoas required by authorities,
and the Customer shall indemnity the Companyin respect of any disbursement, expense, cost, loss, fine or damage incurred by the Company in doing so and releases the Company from any liability in connection therewith.
(b) The Customer agrees that it shall not defer or withhold payment or deduct any amount from the account of the Company by reason of any claim it alleges against the Company.
(c) The Customer agrees to pay the Company sums payable in respect of damages resulting from collision of two vessels – including a vessel on which the Goods were carried – pursuant to the Both to Blame Collision Clause as recommended by BIMCO at the time the Service is provided which is incorporated herein and applicable.
(d) The Customer agrees to give the Company cash deposit or other security as the Company may deem sufficient to cover estimated general average contribution which shall be adjusted according to the New York/Atwerp Rules. The Company shall be under no obligation to exercise any lien for general average contribution due to the Customer.
(e) The Customers shall pay the Company interest as liquidated damages at the Westpac Trading Bank overdraft rate plus 5% on overdue fees or charges invoiced. Provision of Credit by the Company to the Customer may be suspended by the Company at its own discretion if fees and charges invoiced are overdue or otherwise.
provided that the Company will notify the Customer and all other relevant personsof its intention to sell the goods in accordance with the requirements of mandatorily applicable legislation. If no such legislation applies, the Company will exercise its right to sell the goods or a portionthereof after a period of 7 days from the date which the Company notifies the Customer that it is exercising its rights of sale.
(i) sign any documents or provide further documents or information required by the Company to register a financing statement or financing change statement in respect of a security interest with the Personal Property Securities Register, register any other documents required by the PPSA or correct any such document(s).
(ii) indemnify the Company for all expenses incurred in attending to the steps outlined in (i) above and releasing any interests from the Register.
(iv) not register, nor permit to be registered, a financing statement or a financing change statement in relation to the Goods in favour of a third party without the prior written consent of the Company
(b) The Company and Customer agree that sections 96, 117 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
(c) The Customer hereby waives its rights to receive notices or statements under sections 95, 118, 121(4),123, 130, 132(3)(d), 132(4), 135 and 157 of the PPSA.
(d) The Customer waives its rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
(e) The Customer agrees to ratify unconditionally any actions taken by the Company pursuant to registration related requirements under the PPSA and as referred in clause 17(a) above.
(ii) Any such goods may be destroyed in the sole and absolute discretion of the Company or any other person in whose custody they may be at the relevant time. In the event that the goods are destroyed or otherwise dealt with as aforesaid, the Company shall bear no liability and the Customer shall indemnify the Company from and against all costs and expenses with respect thereto.
(b) The Customer undertakes that any of the goods referred to in (a) above (including their covering, packaging, containers and other carriage devices) shall be distinctly marked having regard to their nature. The Customer further undertakes that the Goods are packed in a manner adequate to withstand the ordinary risks of any Service having regard to their nature and in compliance with all laws and regulations which may be applicable with respect to any Service. The Customer shall indemnify the Company against all claims, losses, damages or expenses arising in consequence of any breach of this provision.
(c) The Customer’s compliance with (b) above in no way reduces or limits those rights afforded to the Company under (a) of this clause.
(b) If the nominated place of delivery shall be unattended or if delivery cannot otherwise be effected, the Company in its sole discretion may at its option either deposit the Goods at the nominated place or store the Goods at the risk and expense of the Customer, both of which will be deemed to be delivery of the Goods under this Contract.
(b) If the Goods are sold pursuant to Clause (a) above, the Company can use the proceeds of sale to discharge any fees and charges owed by the Customer, including the costs of sale. Any balance of any proceeds remaining following such discharge will be remitted to the Customer.
(b) A reference to any law includes a statutory modification, substitution or re-enactment of it.
(b) The use of the Customer’s own form is no derogation to these terms and conditions.