DEFINITIONS
AND INTERPRETATION
Definitions
In these Trading Conditions, the following
defined terms will have the following defined meanings:
"ABN"
means the Australian Business Number of the Customer pursuant to the GST Law;
"Airfreight
Convention" means either:
(a)
the
Convention for the Unification of Certain Rules for International Carriage by
Air signed at Montreal on 28 May 1999; or
(b)
the
Convention for the Unification of Certain Rules relating to International
Carriage by Air, signed at Warsaw on 12 October 1929; either unamended or
amended by the Hague Protocol 1955; at Guatemala City 1971, by the additional
Protocol No 3 of Montreal 1975 and/or by the additional Protocol No. 4 of
Montreal 1975;
whichever may be applicable;
"AQIS"
means the Australian Quarantine Inspection Service;
"Assets"
means all assets, Goods, documents and records of the Customer held by the
Company as part of the contractual terms and trading conditions for the
appointment of the Company, and include, without limitation, the Goods;
"ATD"
has the same meaning as "authority to deal" as defined in section 4 of
the Customs Act;
"ATO"
means the Australian Taxation Office;
"Authority"
means the authority and acknowledgement by which the Customer appointed the
Company to act on its behalf on the terms of the Authority and on the terms of
these Trading Conditions;
"Authorised
Signatory" means the party who signs the Authority on behalf of the
Customer;
"Business
Day" means any day that is not a Saturday or Sunday on which banks are
open for general banking business in New South Wales
"Carriage"
means carriage by vehicles and conveyances of all kind including acts in
furtherance of an act of carriage by another or a specific means, whether by
air, sea or land transport;
"Carrier"
means any party involved in the carriage of Goods whether by airfreight,
seafreight or land transport;
"Chain of Responsibility"
means any State, Territory or Commonwealth
legislation or regulations based on or adapted from the provisions of the National Transport Commission (Road
Transport Legislation - Compliance and Enforcement Bill) Regulations 2006
or National Transport Commission (Road
Transport Legislation - Compliance and Enforcement Regulations) Regulations
2006 as approved by each State and Territory Government;
"Company"
means ASEAN CARGO SERVICES PTY LTD
trading as WLG (Australia) Pty Limited ACN 002 739 657, as holder of
Customs Brokers Licence number 01661C and the nominees, agents, sub-agents
and employees of the Company;
"Competition
and Consumer Act" means the Competition
and Consumer Act 2010 (Cth);
"Consequential
Loss" means any loss or damage arising from a breach of contract or
agreement (including breach of the Service Agreement), tort, or any other basis
in law or equity including, but without limitation to, loss of profits, loss of
revenue, loss of production, loss or denial of opportunity, loss of access to
markets, loss of goodwill, indirect or remote or unforeseeable loss, loss of
business reputation, future reputation or publicity, or any similar loss which
was not contemplated by the parties at the time of entering the Service Agreement;
"Consumer
Contract" means a contract between the Company and the Customer for a
supply of Services to a Customer that is an individual whose acquisition of the
Services is wholly or predominantly for personal, domestic or household use or
consumption;
"Corporations
Act" means the Corporations Act
2001 (Cth);
"Customer"
means:
(a)
if
there is an Authority, the customer named in the Authority and will include all
employees, officers, agents and contractors of the Customer; or
(b)
if
there is no Authority, any entity that instructs the Company to perform the
Services;
"Customs"
means the Australian Customs and Border Protection Service and includes, where
applicable the Chief Executive Officer of the Australian Customs and Border
Protection Service;
"Customs
Act" means the Customs Act 1901
(as amended), and any succeeding Legislation and any regulations made pursuant
to the Customs Act;
"Customs
Duty" has the same meaning as "Duty" in the Customs Act;
"Customs
Related Law" has the same meaning as in Section 4B of the Customs Act;
"Dangerous
Goods" means cargo which is noxious, hazardous, inflammable, explosive
or offensive (including radioactive materials) or may become noxious,
hazardous, inflammable, explosive or offensive or radioactive or may become
liable to cause damage to any person or property whatsoever whether prescribed
by Laws or otherwise;
"Debts"
means all amounts owing by the Customer to the Company on any account
whatsoever;
"Depot
Licence" has the same meaning as "depot licence" as defined
in section 77F of the Customs Act;
"Excluded
Interest" means any of the interests set out in section 8 of the Personal
Property Securities Act or any interest that is not a Security Interest but
encumbers the Goods;
"Fees"
means the fees charged by the Company for provision of the Services;
"Goods"
are any goods or items which are the subject of the Services provided by the
Company to the Customer under this Service Agreement;
"Government
Authorities" means, without limitation, all Government departments and
agencies with responsibility for the import and export of goods, the collection
of revenue on the import and export of goods and the transport of those goods
to include, without limitation, Customs, AQIS, the ATO and the RSA;
"GST"
has the same meaning as under the GST Law and means the Goods and Services Tax
imposed under the GST Law;
"GST
Law" means the A New Tax System
(Goods and Services Tax) Act 1999;
"GST
Rate" means the rate of GST under the GST Law;
"Hague
Rules" means the International Convention for the Unification of
Certain Rules relating to Bills of Lading signed at Brussels on 25 August 1924,
or those rules as amended by the Protocol signed at Brussels on 23 February
1968 (the Hague Visby Rules) and the SDR Protocol (1979);
"Incoterms"
means Incoterms® 2010 issued by the
International Chamber of Commerce;
"Input
Tax Credit", "Supply",
"Taxable Supply", "Tax Invoice" means the same as in the GST Law;
"Laws"
means any laws, regulations or guidelines of the Commonwealth of Australia, any
of the States, Territories or Municipalities of Australia, or of any country
from which, through which or into which the Goods are carried and including,
without limitation all regulations, ordinances and directions made pursuant to
the Laws and any successor Laws;
"Licence" means any Depot Licence,
Warehouse Licence or any other licence issued by Customs;
"Parties" means the Company
and the Customer;
"Personal Property Securities Act"
means the Personal Property Securities
Act 2009 (Cth);
"OHS
Laws" means any occupational health and safety legislation,
regulations or guidelines, codes of conduct or policies of the Commonwealth of
Australia or any of the States, Territories or Municipalities of Australia;
"Privacy Laws" means the Privacy
Act 1988 (Cth), all associated regulations or
guidelines, and any other associated or relevant State or national privacy
legislation, regulations or guidelines;
"Reporting Obligations" means the
obligations of the Company to report the arrival, carriage and movement of
goods pursuant to the Customs Act or any Customs Related Law or as required by
any Government Authorities;
"Related Body Corporate" has the
same meaning as under the Corporations Act
"RSA" means those State and
Commonwealth Government Authorities in Australia responsible for road safety
and the laws governing the carriage of Goods by road;
"Security
Interest" has the same meaning as under the Personal Property
Securities Act;
"Service
Agreement" means:
(a)
these
Trading Conditions;
(b)
the
Authority;
(c)
any
customer credit application with the Company; and
(d)
any
fee quotation estimate or agreement,
as amended from time
to time, regardless of whether the Customer is given notice of any amendment;
"Services" means any performance of work by the Company for the Customer in
anyway connected with the Goods including, without limitation:
(a)
making
any reports, entries and declarations required by any Government Authorities;
(b)
quoting
the ABN as may be required under the GST Law;
(c)
providing
all necessary information and completing all necessary documentation and
reports for the purposes of any Government Authorities; and
(d)
entering
into contracts with Sub-contractors on behalf of the Customer to enable the
Carriage, import, export, storage or transportation of the Goods;
"Shipping Contract" means:
(a)
a
contract of marine salvage or towage; or
(b)
a
charterparty of a ship; or
(c)
a
contract for the carriage of goods by ship, which includes a reference to any
contract covered by a sea carriage document within the meaning of the amended
Hague Rules referred to in section 7(1) of the Carriage of Goods by Sea Act 1991 (Cth);
"Sub-contractor" means any third
party appointed by the Company to assist in the provision of the Services;
"Vessel" means any vessel, vehicle
or aircraft used to effect Carriage of the Goods, whether by sea, land or air;
"Warehouse
Licence" has the same meaning as "warehouse licence" as
defined in section 78 of the Customs Act;
2.
Interpretation
2.1
These
Trading Conditions and any collateral agreements made by the Company with the
Customer wherever made shall be governed and construed according to the laws of
New South Wales and shall be subject to the exclusive jurisdiction of the courts
of New South Wales and those courts
which can hear appeals from those courts.
2.2
If
these Trading Conditions are held to be subject to the laws of any jurisdiction
other than the Commonwealth of Australia and the State/Territory of New South Wales then these Trading Conditions
shall continue to apply and shall be void only to the extent that they are
inconsistent with or repugnant to those laws and no further.
2.3
Subject
to clause 25, all the rights,
immunities and limitations of liability contained herein shall continue to have
their full force and effect in all the circumstances notwithstanding any breach
of any term or condition hereof or any collateral agreement by the Company and
notwithstanding that the Services have been provided, the Goods delivered as
directed by the Customer or the Authority having expired or been terminated.
2.4
Unless
written notification to the contrary is given by the Customer to the Company at
or prior to entering into these Trading Conditions, the Customer expressly
warrants and represents that all or any Services to be supplied by the Company
and acquired by the Customer pursuant to this Service Agreement are so supplied
and acquired for the purposes of a business, trade, profession or occupation
carried on or engaged in by the Customer.
2.5
In
the interpretation of these Trading Conditions the singular includes the plural
and vice versa, and words importing corporations mean and include natural
persons and vice versa.
2.6
No
agent or employee of the Company has the authority to waive or vary these
Trading Conditions unless the Company approves such waiver or variation in
writing. Any forbearance by the Company
in enforcing the Trading Conditions does not constitute a waiver. If the Company waives a breach of a Trading
Condition, the waiver doers not operate as a waiver of another breach of the
same or any other Trading Condition or as a continuing waiver.
2.7
Where
any provision (or part thereof) of these Trading Conditions is held to be
illegal or unenforceable, it may be severed and shall in no way affect or
prejudice the enforceability of any other term or condition herein.
2.8
Where
there is an inconsistency between the terms and conditions of the Service
Agreement, the relevant documents shall be construed in the following
descending order of priority:
(a)
these
Trading Conditions;
(b)
the
Authority;
(c)
any
customer credit application;
(d)
any
fee quotation estimate or agreement
2.9
Reference
to any Laws or to any section or provision of any Laws includes any statutory
modifications, re-enactments, substitutions or replacements thereof and all
Laws issued thereunder.
2.10
Reference
to any Convention or any Article of any Convention includes any modifications,
substitutions or replacements thereof.
2.11
References
to clauses are references to clauses in these Trading Conditions.
2.12
Headings
have no effect on interpretation of the Trading Conditions.
2.13
These
Trading Conditions do not affect any rights the Customer has under the Competition and Consumer Act.
2.14
If
the Service Agreement between the Company and the Customer is a Consumer
Contract and is not a Shipping Contract:
(a)
clause 24 does not apply;
(b)
clause 25 applies; and
(c)
the
laws in force in the place in which the contract is made apply.
2.15
If
the Service Agreement between the Company and the Customer is not a Consumer
Contract and/or is a Shipping Contract:
(a)
clause 24 applies; and
(b)
clause 25 does not apply.
TRADING
CONDITIONS
3.
Nature
of Services
3.1
The
Company carries on business as a licensed customs broker under Part XI of the
Customs Act and forwarding agent. All
Services provided by the Company are governed solely by these Trading
Conditions which, shall prevail over the Customer’s terms and conditions and
any terms and conditions contained in any transport document including any bill
of lading, waybill or consignment note except to the extent provided for in
these Trading Conditions. The Company is
not a common carrier and will accept no liability as such.
3.2
The
Company may refuse at its sole and absolute discretion to accept any Goods for Carriage
without assigning any reason.
3.3
The
Customer acknowledges that where, terms of Carriage are limited pursuant to
Convention, statute, Law, bill of lading or airway bill, and the transport of
the goods extends or requires transport outside and beyond the terms provided
for in that Convention, statute, Law, bill of lading or airway bill then the
Customer may be required to enter into a further contractual agreement with the
forwarder or carrier regarding that portion of transport in order to limit
liability on behalf of the forwarder or carrier, or where the transport was
unforseen, the limitation of liability provisions in place for the foreseen
transport will extend to the unforeseen transport, even where that liability
provision does not envision transport of that kind.
4.
Acceptance
of Trading Conditions
The Authorised Signatory acknowledges
and agrees that it has received the Trading Conditions, understands the Trading
Conditions and by either signing the Authority or instructing the Company to
perform the Services, the Customer will be bound by the Trading Conditions.
5.
Communications
with the Company
5.1
Wherever
it is necessary, for the purpose of these Trading Conditions or any other
purpose whatsoever, for instructions to be given to the Company, such
instructions will be valid only if given in writing, acknowledged by the
Company in writing and given in sufficient time in all the circumstances for
the Company reasonably to be able to adopt the instructions. Standing or
general instructions, or instructions given late, even if received by the
Company without comment, shall not be binding upon the Company. If the Company adopts standing or general
instructions, or instructions given late, for one or more transaction for the
Customer or any other party, that does not in any way affect the validity of
those instructions in relation to any future transaction. No attempt by the Company to adopt late
instructions will constitute an acceptance by the Company or affect the
validity of those instructions.
5.2
Notwithstanding any prior dealings between the Company and
the Customer or any rule of law or equity or provision of any statute or
regulation to the contrary, or any contracts, documents and other matter
(including cash, cheques, bank drafts and other remittances) sent to the
Company through the post shall be deemed not to have been received by the
Company unless and until they are actually delivered to the Company at its
office address or placed in the Company's post office box, if so addressed.
6.
Ability
to Appoint Agents, Sub-contractors and Third Parties
Subject
to, and in accordance with, these Trading Conditions, the Company agrees and
the Customer hereby employs and authorises the Company as agent for the
Customer to contract either in its own name as principal or as agent for the
Customer with any Sub-contractor for the Carriage, movement, transport or
storage of the Goods or for the performance of all or any part of the Services
pursuant to or ancillary to these Trading Conditions. Any such contract may be made upon the terms
of contract used by the Sub-contractor with whom the Company may contract for
the Services and may be made upon the terms and subject to the conditions of
any special contract which the Sub-contractor may in any particular case
require, including in every case any term that the Sub-contractor may employ
any person, firm or company for performance of the Services so contracted for.
7.
Payment,
Recovery of Fees and GST
7.1
The Company is entitled to retain and be paid all
brokerages, commissions, allowances and other remunerations customarily
retained by or paid to shipping and forwarding agents and (where the Company
accepts specific instructions under clause 10 to effect
insurance) insurance brokers whether declared or otherwise and no such
brokerage, commission or allowance or other remuneration shall be payable or
allowable to the Customer or its principal (if any). The Company may charge by weight, measurement
or value and may at any time reweigh, remeasure or revalue the Goods (or
request the same) and charge additional fees accordingly.
7.2
Quotations
as to Fees and other charges are given on the basis of immediate acceptance and
subject to the right of withdrawal or revision by the Company. Quotations are valid only for the specified
weight and volume ranges quoted and for the designated services and standard of
services quoted. If any changes occur in
the rates of freight, insurance premiums, warehousing, statutory fees or any
other charges applicable to the Goods, quotations and charges are subject to
revision accordingly with notice or, if it is not reasonably practicable,
without notice to the Customer.
7.3
The
Company shall under no circumstances be precluded from raising a debit in
respect of any fee or disbursements lawfully due to it, notwithstanding that a
previous debit or debits (whether excluding or partly including the items now
sought to be charged) had been raised and whether or not any notice was given
that further debits were to follow.
7.4
This subclause
7.4 applies if the Company is or may become liable to pay GST
in relation to any Supply under these Trading Conditions.
(a)
Unless
otherwise stated, all charges quoted are exclusive of the GST imposed under the
GST Law.
(b)
The
Customer shall be responsible for payment of any GST liability in respect of
the Services as provided by the Company or by third parties or Sub-contractors
which shall be payable at the same time as the GST-exclusive consideration.
(c)
The
Customer must also pay GST on the Taxable Supply to the Company, calculated by
multiplying the GST exclusive consideration by the GST Rate.
(d)
GST
shall be payable by the Customer without any deduction or set-off for any other
amount at the same time as the GST exclusive consideration is payable.
(e)
The
Company agrees to provide the Customer with a Tax Invoice to enable the
Customer to claim an Input Tax Credit.
(f)
If
the Customer defaults in the payment on the due date of any amount payable
under subclause 7.4(b) then without
prejudice to any other remedies of the Company and upon demand by the Company,
the Customer shall pay to the Company an amount equal to the amount of any
damages or interest or additional GST that may become payable by the Company
due to the default of the Customer.
7.5
All
amounts due to the Company in Australia are payable in Australian dollars. The Company is entitled to charge a currency
conversion premium when converting receivables into Australian currency.
7.6
The Customer agrees that the Fees will be paid within 30 days
of the date of an invoice.
7.7
If any amounts payable or due under any agreement between
the Company and the Customer (including, without limitation, amounts payable
pursuant to
subclause 9.1 or
fees payable for Services provided by the Company) are not made within seven
days of the due date, the Customer will be in default and without limiting any
other rights of the Company, the Customer shall pay to the Company, by way of
liquidated damages, interest to be
calculated in accordance with the Hong Kong Shanghai Banking Corporation business
overdraft reference rate on the amount outstanding calculated from the due date
until payment is made in full. The
Company may take any legal proceedings to recover amounts owing pursuant to
these Trading Conditions.
7.8
The
Company reserves the right to offset any amounts receivable from the Customer
against any amounts payable to that Customer or any company affiliated with the
Customer or any Related Body Corporate of the Customer. This right exists irrespective of the date
the liability has been created or debt incurred with the Company.
7.9
The Company, its servants or agents shall have a special
and general lien on the Assets and a right to sell the Assets whether by public
or private sale or auction without notice, for Fees, freight, demurrage,
detention charges, duty, fines, penalties, salvage, average of any kind
whatsoever and without limitation, any and all Debts, charges, expenses or
other sums due and owing by the Customer or the Customer's principals, servants
or agents. In addition, the lien shall
cover the costs and expenses of exercising the lien including without
limitation, the costs of sale and reasonable legal fees. The lien and rights granted by this subclause 7.9
shall survive delivery of the Assets and the Company shall be entitled to
retain the proceeds of sale of the Assets in respect of any outstanding amounts
referred to in this clause. The Company
sells or otherwise disposes of such Assets pursuant to subclause 7.9
as principal and not as agent and is not the trustee of the power of sale.
7.10
Without limiting the generality of subclause 7.9,
the Customer acknowledges that the Company shall have a Security Interest which
attaches over any Assets which are the subject of the Services and in the
Company's possession. The Customer
acknowledges and consents to the registration and perfection of the interest
set out this subclause
7.10 for the purposes of the Personal Property Securities Act.
7.11
The Customer warrants that it has rights in the Goods and
the power to transfer rights in the Goods to the Company.
7.12
The Customer acknowledges that it must sign the Authority
and if it does not sign the Authority it must adopt or accept these Trading
Conditions by conduct.
7.13
The Customer must not grant any other person a Security
Interest in respect of the Goods.
7.14
The Customer must not allow an Excluded Interest to exist
over the Goods.
7.15
The Parties agree and acknowledge that the enforcement
provisions referred to in section 115 of the Personal Property Securities Act
are excluded to the maximum extent permitted by law.
8.
Warranties
by the Customer
8.1
The
Customer (on behalf of itself, the consignor and the consignee) warrants to the
Company that:
(a)
it
is either the owner of the Goods, or the authorised agent of the owner of the
Goods with authority to bind the owner to act or otherwise have authority to
arrange the Services under the Service Agreement;
(b)
it
has not granted any other person a Security Interest in respect of the Goods;
(c)
it
has not allowed an Excluded Interest to exist over the Goods and an Excluded
Interest does not exist over the Goods;
(d)
it
will provide all documents, information and assistance required by the Company
to comply with the requirements of the Government Authorities in an accurate
and timely fashion as required by those Government Authorities;
(e)
it
will retain all documents or records in the manner required by the Government
Authorities;
(f)
it
will observe all requirements of any Government Authorities;
(g)
it
will maintain as confidential the terms of the Authority and these Trading
Conditions;
(h)
it
has complied with all Laws and regulations of any Government Authorities
relating to the nature, condition, packaging, handling, storage and Carriage of
the Goods including all Laws prescribed by the RSA;
(i)
the
Goods are packed to withstand ordinary risks of handling storage and Carriage,
having regard to their nature;
(j)
the
Goods are not Dangerous Goods;
(k)
the
Goods and their Carriage do not contravene any Laws;
(l)
it
will comply at all times with all Privacy Laws in relation to the Service
Agreement, the Goods and the Services at all times and will notify the Company of
any issues or requirements under such laws in relation to the Service Agreement,
the Goods or Services of which the company should be aware; and
(m)
it
will comply at all times with all OHS Laws in relation to the Service Agreement,
the Goods and the Services, and will notify the Company of any issues or
requirements under such laws in relation to the Service Agreement, the Goods or
the Services of which the Company should be aware, or which may affect the
Company's ability to comply either with the OHS Laws.
8.2
The Customer acknowledges that a breach or failure to
observe all or any of the warranties in subclause 8.1 could lead to
penalties or damages to the Customer and also to the Company and the Customer
agrees to provide the indemnity to the Company on account of such penalties or
damages pursuant to clause
9.
9.1
Without
limiting the effect of these Trading Conditions, the Customer agrees to
indemnify and keep indemnified the Company for:
(a)
any
loss or damage directly or indirectly caused by the Goods or by breach of these
Trading Conditions by the Customer;
(b)
amounts
of Customs Duty, GST and other payments made to Government Authorities by the
Company on behalf of the Customer;
(c)
any
penalties payable by the Company (whether pursuant to a court order or pursuant
to an Infringement Notice) due to the Customer:
(1)
providing
information that is incorrect or misleading;
(2)
omitting
to provide material information required to the Government Authorities;
(3)
providing
information in a manner which does not enable the Company to comply with the
requirements of the Government Authorities for reporting in prescribed periods;
and/or
(4)
failing
to provide information or documentation requested by the Company;
(d)
penalties
associated with the failure by the Customer to maintain or provide its
documents or records in the manner and at the time contemplated by the
Government Authorities;
(e)
penalties
associated with providing misleading or deceptive information regarding the
status of Goods, whether pursuant to the Competition and Consumer Act or other
legislation;
(f)
penalties
imposed by any RSA for any breach of the Laws governing to the Carriage of
goods by road;
(g)
damages
payable by the Company from the failure of the Customer to return any container
or transport equipment involved in Carriage in the time required by the
contract between the Company and the supplier or owner of that container or
other transport equipment;
(h)
demurrage
or other charge for detention or failure to return items provided by the
Company pursuant to contracts with other parties;
(i)
liabilities
or costs incurred by the Company on behalf of the Customer associated with the
Services including, without limitation, amounts paid to carriers of goods for
the Carriage of Goods or cleaning of containers (whether Sub-Contractors or
otherwise and amounts incurred by the Company in exercising its rights pursuant
to these Trading Conditions);
(j)
damages
payable by the Company arising from or contributed to by errors or
misrepresentations by the Customer;
(k)
losses
or damage incurred by the Company due to a breach by the Customer of any of the
warranties in subclause 8.1;
(l)
all
expenses directly or indirectly incurred arising out of or in connection with
the entry of an officer of any Government Authorities or other authorised
person on the premises of the Company for the purpose of exercising any powers
pursuant to the requirements of any Government Authorities and/or inspecting,
examining, making copies of, taking extracts of documents on the premises to
the extent that the exercise of the powers is related to the Services;
(m)
any
Customs Duty, GST or other charge assessed against the Company in relation to
the Goods or Services;
(n)
any
charges levied by Government Authorities for examination and treatment of the
Goods;
(o)
any
costs or charges incurred by the Company as a result of or in connection with a
direction or request from Customs in relation to the Goods or Services;
(p)
any
costs or charges incurred by the Company as a result of or in connection with a
suspension or cancellation by Customs of an ATD in relation to the Goods or
Services;
(q)
any
costs or charges incurred by the Company as a result of or in connection with any
variation by Customs of conditions of Licences or the addition by Customs of
new conditions on Licences in relation to the Goods or Services;
(r)
any
costs, charges or penalties incurred by the Company as a result of or in
connection with any breaches of any Licences in relation to the Goods or
Services;
(s)
any
costs or charges incurred by the Company as a result of or in connection with
any suspension or cancellation of Licences by Customs in relation to the Goods
or Services;
(t)
any
costs or charges incurred by the Company pursuant to subclause 20.3, 20.4 and 20.5; and
(u)
any
costs or charges incurred in recovering any amounts payable to the Company
(including, without limitation, costs of legal proceedings).
9.2
The Customer agrees to pay any amounts claimed pursuant to
the indemnity in subclause
9.1 within 7 days of demand by the Company.
9.3
The nature of the indemnity provided pursuant to subclause 9.1
will include, without limitation, all penalties, liabilities, all losses
(including indirect and Consequential Loss)
and damages assessed against the Company and its officers and employees,
together with all legal costs incurred by the Company (calculated on a
solicitor/client basis). The indemnity
shall continue in force and effect whether or not the Goods have been pillaged,
stolen, lost, damaged or destroyed.
9.4
The Company may execute all or any of its rights pursuant
to clause
7 to recover any amounts owing pursuant to this clause 9.
9.5
There is no need for the Company to suffer or incur any
losses, costs, damages, liabilities, judgments, penalties or expenses before
requiring payment from the Customer.
10.
Insurance
The Company shall not effect
insurance on the Goods except upon receipt of express instructions given in
writing by the Customer and the Customer's written declaration as to the value
of the Goods. All such insurances
effected by the Company are subject to the usual exceptions and conditions of
the policies of the insurer or underwriter taking the risk. At the discretion of the Company such
insurance may name the Customer or owner as insured. In the event of any
dispute in regard to liability under any such insurance policy for any reason
whatsoever the Customer or other insured shall have recourse against the
insurer or underwriter only and the Company shall have no liability or
responsibility in relation to any such insurance policy.
11.
Storage
and Transport
11.1
Subject to express instructions in writing given by the
Customer and accepted by the Company in writing (and without limiting the
generality of clause
6), the Company reserves to itself complete freedom to
decide upon the means, route and procedure to be followed in the handling,
storage and transportation of the Goods and is entitled and authorised to
engage Sub-contractors to perform all or any of the functions required of the
Company upon such terms and conditions as the Company in its absolute
discretion may deem appropriate.
11.2
The Customer agrees that:
(a)
the
value of the Goods shall not be declared or inserted in a Bill of Lading or a
sea carriage document for the purpose of extending a ship or carrier's
liability under the Carriage of Goods by
Sea Act 1991 and Carriage of Goods by
Sea Regulations 1998 except upon
express instructions given by the Customer;
(b)
in
the case of Carriage by air, no option or declaration of value to increase
air-carrier's liability under:
(1)
Article
22 of Schedule 1A to the Civil Aviation
(Carrier's Liability) Act 1959; or
(2)
Article
22(2) of Schedule 1, 2, 4 or 5 to the Civil
Aviation (Carrier's Liability) Act 1959;
will be made except
on express instruction given in writing by the Customer;
(c)
in
the case of Carriage by land, or any Carriage ancillary to the Carriage
mentioned above and not expressly provided for under any contract within these
Trading Conditions, under Convention or under any statute or Law, the Customer
agrees that the value of the Goods shall not be declared or inserted into a
contractual document or as part of the trading terms for the purpose of
extending the forwarder or Carrier’s liability under any circumstance except
upon express conditions agreed to in writing by the Carrier or forwarder who
expressly elect to waive that right;
(d)
in
all other cases where there is a choice of charges by Carriers, warehousemen,
stevedores or others according to the extent of the liability assumed by the Carriers,
warehousemen, stevedores or others, no declaration of value (where optional)
will be made for the purpose of extending liability, and the Goods will be
forwarded or dealt with at the Customer's risk for minimum charges, unless express
instructions in writing to the contrary are given by the Customer;
(e)
the
Company shall have no obligation to take any action in respect of any Goods
that may be recognisable as belonging to the Customer unless it has received
suitable instructions relating to such Goods together with all necessary
documents. In particular, the Company
shall not be obliged to notify the Customer of the existence or whereabouts of
the Goods or to examine them or to take any other steps for their
identification, protection or preservation or for the preservation of any claim
by the Customer or any other party against the Carrier, insurer or any third
party; and
(f)
all
Goods moved by air are subject to volumetric conversion on the basis of one
kilo being the equivalent of six thousand cubic centimetres. Goods moved by other means are subject to
volumetric conversion on the basis of relevant industry standards or as
modified by the Carrier’s standard trading conditions.
12.
Perishable,
Non-deliverable, Uncollected, Hazardous and Damaged Goods
12.1
Where
the Goods are perishable and are not taken up immediately upon arrival or are
insufficiently or incorrectly addressed or marked or otherwise not
identifiable, they may be sold or otherwise disposed of with or without notice
to the Customer, consignor, owner or consignee of the Goods and payment or
tender of the net proceeds of any sale after deduction of all costs, expenses
and charges incurred by the Company in effecting such sale or disposal shall be
equivalent to delivery.
12.2
Where
the Goods are non-perishable and cannot be delivered either because they are
insufficiently or incorrectly addressed or marked or otherwise not identifiable
or because they are uncollected or not accepted by the consignee they may be
sold or returned at the Company's option at any time after the expiration of 21
days from a notice in writing sent to the Customer at the address which the
Customer gave to the Company on delivery of the Goods. All costs, charges and expenses incurred by
the Company and arising in connection with the storage, sale or return of the
Goods shall be paid by the Customer and may be deducted from the proceeds of
the sale of the Goods.
12.3
Where
the Goods are stored by the Company for the Customer and they are uncollected for
whatever reason they may be sold or returned at the Company's option at any
time after the expiration of 21 days from a notice in writing sent to the
Customer at the address which the Customer gave to the Company on delivery of
the Goods. All costs, charges and
expenses incurred by the Company and arising in connection with the storage, sale
or return of the Goods shall be paid by the Customer and may be deducted from
the proceeds of the sale of the Goods.
12.4
In respect of subclauses 12.1, 12.2 and 12.3,
the Company sells or otherwise disposes of such Goods as principal and not as
agent and is not trustee of the power of sale.
12.5
In the event that any sale of Goods pursuant to subclauses 12.1,
12.2 and 12.3 does not provide sufficient proceeds to discharge all
liability of the Customer to the Company, the Customer acknowledges that it is
not released from the remainder of the liability to the Company merely by sale
of the Goods.
13.
Destruction
of Dangerous Goods
In the event that the Goods are found
to be Dangerous Goods they may be destroyed or otherwise dealt with at the sole
discretion of the Company or any other person in whose custody they may be at
the relevant time. If such Goods are
accepted under arrangements previously made in writing they may nevertheless be
destroyed or otherwise dealt with if they become dangerous to other goods or
property. The expression "goods
likely to cause damage" includes goods likely to harbour or encourage
vermin or other pests and all such goods as fall within the definition of
hazardous and dangerous goods in the legislation governing carriage by rail in
the States and Territories of Australia.
14.
Inspection
The Company may
without liability open any package or other container which the Goods are
placed or carried to inspect the Goods either to determine their nature or
condition or to determine their ownership or destination.
15.
Delivery
15.1
The Company is authorised to deliver the Goods at the
address given to it by the Customer.
15.2
The Company is deemed to have satisfied its delivery
obligations under the Service Agreement if the Company delivers the Goods to
the address given by the Customer and obtains from a person at that address a
receipt or a signed delivery docket.
15.3
In the event of the consignee refusing to take delivery, or
not being about to take delivery of the Goods, or the Goods being unable to be
delivered for any other reason, the Company is authorised to at the Company's
absolute discretion and at the Customer's sole expense and risk and without
liability to the Company, deal with the Goods as the Company thinks fit
including storing or disposing of the Goods or returning them to the Customer
or the person entitled to collect the Goods.
16.
Railway
Declaration
The Company shall be
under no obligation to make any declaration to, or to seek any special
protection or cover from, the Department of Railways, railways authority or
provider of railways in any State or any airline or road transport authority in
respect of any Goods falling within the definition of that body:
(a)
of
dangerous or hazardous goods; or
(b)
of
goods liable to be stored in the open,
unless written
instructions to that effect are given to the Company by the Customer.
17.
Pillaged
Goods
If the Goods are
landed from any vessel in a damaged or pillaged condition and an examination
might be held or other action taken by the Company in respect thereof, no
responsibility attaches to the Company for any failure to hold such examination
or take such other action unless the Company has been given sufficient notice
to enable it to arrange for such examination or for the taking of such other
action as the case may be.
18.
Storage
of Goods pending delivery
18.1
Without limiting the effect of clause 11,
pending forwarding and delivery, the Goods may be warehoused or otherwise held
at any place or places at the sole discretion of the Company at the Customer's
risk and expense.
18.2
In circumstances were the Company stores the Goods, the
Company may, by notice in writing, require that the Customer remove the Goods
for any reason whatsoever within 7 days from receipt of a notice delivered to the
address which the Customer gave to the Company on delivery of the Goods. If the Customer fails to do so, the Company
may remove the Goods and store them in such a manner and in such a place as the
Company thinks appropriate at the Customer's expense and risk.
19.
COD
Goods
The Company may in its absolute
discretion refuse instructions to collect on delivery (COD) in cash or
otherwise. Where the Company does accept
such instructions its only obligation to the Customer is to use reasonable
diligence and care in such collection.
20.
Limitation
of Liability, Force Majeure and Indemnity from Liability to Third Parties
20.1
Without limiting the effect of clause 9
but subject to subclause
25.7 (where it applies), to the full extent permitted by law,
the Company its servants and agents shall not be responsible for loss or damage
of any kind whatsoever arising out of the provision of its Services to the
Customer (whether caused by negligence or wilful default by the Company its
servants or agents) and the Customer agrees to indemnify the Company in respect
of any claims made by Sub-contractors or third parties concerning the provision
of Services by the Company and the following matters are expressly covered by
this limitation of liability:
(a)
any
liability to pay amounts to Government Authorities (including, without
limitation, customs duty or GST) that would not have otherwise been payable or
any penalties (including penalties imposed directly on the Company, its
servants or agents as a result of their reliance on incorrect information
provided by the Customer, consignor or consignee of the Goods, or their
respective agents whether imposed by court or Infringement Notice);
(b)
any
liability concerning the making of any statement, forecast, information or
giving advice in relation to the liability of the Customer to pay any amounts
owing to any Government Authorities;
(c)
any
liability in respect of the loss, misdelivery, deterioration, non-delivery,
contamination, evaporation or damage to the Goods or consequential loss arising
as a result however caused;
(d)
any
loss or depreciation of market value attributable to delay in forwarding the
Goods or failure to carry out instructions of the Customer;
(e)
loss,
damage, expense or additional cost arising from or in any way connected with
marks or brands on, weight, numbers, content, quality, description of the
Goods;
(f)
loss
or damage resulting from fire, water, explosion or theft;
(g)
loss,
damage or delay occasioned by examination of the Goods by any of the Government
Authorities;
(h)
loss,
damage or delay occasioned by treatment of the Goods by any of the Government
Authorities (including without limitation, any fumigation or decontamination or
other treatment by AQIS);
(i)
any
costs incurred by the Company on behalf of the Customer to any other person in
relation to the Carriage of the Goods; and
(j)
any
losses, liabilities, costs or charges incurred by the Company as a result of or
in connection with a direction or request from Customs in relation to the Goods
or Services;
(k)
any
losses, liabilities, costs or charges incurred by the Company as a result of or
in connection with a suspension or cancellation by Customs of an ATD in
relation to the Goods or Services;
(l)
any
losses, liabilities, costs or charges incurred by the Company as a result of or
in connection with any variation by Customs of conditions of Licences or the
addition by Customs of new conditions on Licences in relation to the Goods or
Services;
(m)
any
losses, liabilities, costs, charges or penalties incurred by the Company as a
result of or in connection with any breaches of any Licences in relation to the
Goods or Services;
(n)
any
losses, liabilities, costs or charges incurred by the Company as a result of or
in connection with any suspension or cancellation of Licences by Customs in
relation to the Goods or Services; and
(o)
loss,
damage or delay occasioned by delay in the Carriage of the Goods or handling of
the Goods in the course of the Carriage of the Goods.
20.2
The
Company shall not be liable in any event for any Consequential Loss whether or
not the Company had knowledge that such damage might be incurred.
20.3
The
Company and Customer acknowledge that Goods moving by airfreight are subject to
the applicable Airfreight Convention. The
Customer’s recovery of loss or damage, if any, is against the airline carrier
and is limited in accordance with the Airfreight Convention or any other
Conventions that may be applicable. In
the event of any loss or damage suffered by the Customer whilst the Goods are
in the possession of the airline carrier, the Company will seek to recover on
behalf of the Customer from the principal airline carrier amounts payable under
the aforementioned Conventions as they are applicable. The Customer will indemnify, defend and hold
the Company harmless against any claims for loss or damage to their Goods
incurred whilst they were in the possession of the airline carrier.
20.4
The
Company and Customer acknowledge that Goods moving by seafreight are subject to
the applicable international treaties including the Hague Rules. The Customer’s right to recovery of loss or
damage, if any, is against the seafreight Carrier and is limited in accordance
with the Hague Rules or any other Conventions that may be applicable. In the event of any loss or damage suffered
by the Customer whilst the Goods are in the possession of the seafreight Carrier,
the Company will seek to recover on behalf of the Customer from the carrier
amounts payable by the Hague Rules as they are applicable. The Customer will indemnify, defend and hold
the Company harmless against any claims for loss or damage to their goods
incurred whilst they were in the possession of the seafreight Carrier.
20.5
The
Company and Customer acknowledge that Goods moving by airfreight or seafreight
may necessarily involve a part of transport undertaken by other means in order
to comply with the terms of Carriage under the Service Agreement or any
contract between the parties. Where this
is so, and no international treaty is applicable which covers the additional
transport, the Customer’s recovery of loss or damage, if any, is against the
carrier and is limited in accordance with the Convention applicable for the
majority of the transport, even where that Convention does not envisage liability
of the kind of transport concerned. In
the event of any loss or damage suffered by the Customer whilst the Goods are
in the possession of a third party Carrier, the Company will seek to recover on
behalf of the Customer from the third party Carrier amounts payable by these
Conventions as they are applicable. The
Customer will indemnify, defend and hold the Company harmless against any
claims for loss or damage to their Goods incurred whilst they were in the
possession of the third party Carrier where such Carriage was necessary in
order to comply with the terms of the Service Agreement.
20.6
The
Company shall not be liable to the Customer for any breach or failure to
performs its obligations under these Trading Conditions or any damage or loss
to Goods resulting from one of the following:
(a)
perils,
dangers and accidents of the sea or other navigable waters;
(b)
act
of God;
(c)
act
of war;
(d)
act
of terrorism;
(e)
act
of public enemies;
(f)
arrest
or restraint of princes, rulers or people, or seizure under legal process;
(g)
strikes
or lock-outs or stoppage or restraint of labour from whatever cause, whether
partial or general;
(h)
riots
and civil commotions;
(i)
saving
or attempting to save life or property at sea; or
(j)
any
other cause arising beyond the reasonable control of the Company, without the
actual fault or privity of the Company and without the actual fault or privity
of the agents or servants of the Company.
20.7
If the occurrence of any event contemplated in subclause 20.6
causes a delay of over 5 Business Days in any obligation of the Company, then
the provision of Services may be terminated by notice in writing by either
party to the other party. However, all
costs, charges and expenses already incurred by the Company prior to the
termination or arising in connection with the disposal or return of the Goods
shall be paid by the Customer.
20.8
Any
claim made against the Company, its servants or sub-agents is limited to the
full extent permitted by Law. To the
extent that the liability of the Company is limited by any Convention, statute,
Law or contract, and that limitation exceeds the limitation of liability
pursuant to these Trading Conditions then the liability pursuant to that
Convention, statute, Law or contract shall apply.
20.9
If
the Customer is not acquiring the Services wholly or predominately for
personal, domestic or household use or consumption, the Company's liability to
the Customer for a breach of any non-excludable warranty, condition or
guarantee is limited, at the Company's option, to supplying the Services again,
or the cost of supplying the Services again.
21.
Notification
of Liability
Any claim for loss or damage must be
notified in writing to the Company within seven days of delivery of the Goods
or of the date upon which the Goods should have been delivered.
22.
Guarantee,
Undertaking and Indemnity by Directors and Shareholders
22.2
For the purposes of subclause 22.1,
the Customer will ensure that its directors and shareholders will sign any
other documents required by the Company to evidence and confirm any guarantee,
undertaking and indemnity in the form annexed to these Trading Conditions.
23.
Intellectual
Property
The Customer acknowledges that the Company
shall retain all copyright and other intellectual property in any documents or
things created by the Company in the course of providing its Services pursuant
to these Trading Conditions.
24.
Non-consumer
provisions
24.1
This clause
24 only applies where the Service Agreement between the
Company and the Customer is not a Consumer Contract and/or is a Shipping
Contract.
24.2
The Customer must not assign the Customer's rights or
transfer the Customer's obligations under the Service Agreement without the
Company's prior written consent. The
Company may assign the Company's rights and obligation under the Service
Agreement without the Customer's consent.
24.3
No modification amendments or other variation of the
Trading Conditions shall be valid and binding on the Company unless made in
writing and duly executed by and on behalf of the Company.
24.4
The Company reserves complete freedom to decide the manner
or procedure to be adopted for any or all of the various acts that will be
necessary for the completion of the Services. That discretion will be varied only by
instructions delivered by the Customer to the Company in writing and
acknowledged by the Company in writing in sufficient time before the
performance of any service to reasonably allow the Company to adopt the manner
of performing the service required by the special instructions. THE COMPANY SHALL HAVE NO LIABILITY OR
RESPONSIBILITY BY VIRTUE OF THE FACT THAT THERE MAY BE A CHANGE IN THE RATES OF
DUTY, WHARFAGE, FREIGHT, RAILAGE OR CARTAGE, OR ANY OTHER TARIFF BEFORE OR
AFTER THE PERFORMANCE BY THE COMPANY OR ANY ACT INVOLVING A LESS FAVOURABLE
RATE OR TARIFF, OR BY VIRTUE OF THE FACT THAT A SAVING MAY HAVE BEEN EFFECTED
IN SOME OTHER WAY HAD ANY ACT BEEN PERFORMED AT A DIFFERENT TIME AND WHETHER
ITS PERFORMANCE OF ANY OF THE ACTS AFORESAID IS DELAYED OR PRECIPITATED THROUGH
THE NEGLIGENCE OF THE COMPANY OR ITS SERVANTS OR AGENTS OR HOWEVER CAUSED.
24.5
Any term in these Trading Conditions which limits the
Company's liability will also extend and apply to any Sub-contractor, agent or
nominee. For the purpose of this subclause 24.5,
the Company is deemed to be acting as agent or trustee for the Company's
agents, employees, nominees and Sub-contractors and each of those persons shall
be deemed to be a party to these Trading Conditions.
24.6
The Customer undertakes that no claim or allegation will be
made, whether by the Customer or any other person, against the Company's
agents, employees or Sub-contractors and if such claim or allegation is made
for the consequence thereof. It is
agreed that this release and indemnity operates irrespective of how the claim
or allegation arises including negligence or out of events which may constitute
a fundamental breach of contract or a breach of a fundamental term of a
contract.
24.7
The Company shall be discharged from all liability
whatsoever in connection with the Services and/or the Goods unless proceedings
are served within nine months from delivery of the Goods (or from when they
should have been delivered).
24.8
The indemnity provided in subclause 9.3,
shall not be affected in any way if such pillaging, stealing, loss, damage or
destruction has occurred or been brought about wholly or in part by the negligence
or the alleged negligence or any default, omission, neglect or default or any
breach of duty of obligation of the Company, its servants or agents.
24.9
The
Customer undertakes and warrants that neither it, nor any other party that has
an interest in the Goods or Services, shall bring any claims against any party
that has provided all or any part of the Services (including any
Sub-contractor, principal, employer, employee, nominee or agent of the Company)
and where any such claims are made by the Customer or any other interested
party, the Customer undertakes to indemnify all parties against whom the claims
are made (including the Company) against any loss and damage that may be
suffered as a result of such claims.
24.10
In all cases where these Trading Conditions, statute,
international Convention or otherwise do not exclude the liability of the
Company, the liability of the Company whatsoever and howsoever caused shall be
limited to whichever is the lesser between the value of the Goods the subject
of the Service Agreement at the time the Goods were delivered to the Company or
Australian $200.
24.11
The
Company shall not be liable in any event for any Consequential Loss whether or
not the Company had knowledge that such damage might be incurred.
25.
Consumer
provisions
25.1
This clause
25 only applies where the Service Agreement between the
Company and the Customer is a Consumer Contract and is not a Shipping Contract.
25.2
Neither Party may assign the other Party's rights or
transfer its obligations under the Service Agreement without the other Party's
prior written consent, which must not be unreasonably withheld.
25.3
No modification amendments or other variation of the
Trading Conditions shall be valid and binding on the Parties unless made in
writing and duly executed by and on behalf of both Parties.
25.4
The Company, acting reasonably, reserves to the right to
decide the manner or procedure to be adopted for any or all of the various acts
that will be necessary for the completion of the Services. THE COMPANY SHALL HAVE NO LIABILITY OR
RESPONSIBILITY BY VIRTUE OF THE FACT THAT THERE MAY BE A CHANGE IN THE RATES OF
DUTY, WHARFAGE, FREIGHT, RAILAGE OR CARTAGE, OR ANY OTHER TARIFF BEFORE OR
AFTER THE PERFORMANCE BY THE COMPANY OR ANY ACT INVOLVING A LESS FAVOURABLE
RATE OR TARIFF, OR BY VIRTUE OF THE FACT THAT A SAVING MAY HAVE BEEN EFFECTED
IN SOME OTHER WAY HAD ANY ACT BEEN PERFORMED AT A DIFFERENT TIME.
25.5
Where the Company accepts instructions to deliver on a COD
basis pursuant to clause
19, THE COMPANY IS NOT LIABLE FOR ANY LOSS OR DAMAGE ARISING
FROM SUCH INSTRUCTIONS OR SUCH COLLECTION, EXCEPT TO THE EXTENT THAT THE LOSS
OR DAMAGE WAS CAUSED BY THE COMPANY.
25.6
The
Company shall not be liable in any event for any Consequential Loss unless the
Company had knowledge that such damage might be incurred.
25.7
Clause 20.1 will not apply to
the extent that:
(a)
the
Company directly caused loss or damage; or
(b)
the
loss or damage was caused by negligence or wilful default by the Company, its
servants or agents.