Terms & Conditions
TERMS & CONDITIONS OF SALE DEFINITIONS AND INTERPRETATION
In these terms and conditions, unless the context otherwise requires:
1.1 “the Company” includes its officers, employees, agents andsub-contractors;
1.2 “Goods” means any goods or items which are the subject of services provided by the Company to the Customer under any agreement between the Customer and the Company, and includes any packaging, pallet, container or other storage device supplied with the Goods by the Customer;
1.3 “Services” means the transport, carriage, handling, storage, customs clearance or other service performed or arranged by the Company pursuant to any agreement between the Customer and the Company;
1.4 “GST” means the goods and services tax imposed by the “A New Tax System (Goods and Services Tax) Act 1999” and related legislation;
1.5 the singular includes the plural and vice versa; words importing one gender include each other gender; and words importing corporations include natural persons and vice versa;
1.6 where any provision (or part thereof) of these terms and conditions is held by a Court to be void or unenforceable, that shall in no way affect or prejudice the validity or enforceability of any other term or condition herein;
1.7 clause headings in these terms and conditions are provided for convenience of reference only and shall not affect the interpretation of these terms and conditions;
1.8 these terms and conditions shall prevail over all conditions of the Customer’s purchase order, to the extent of any inconsistency, and exclude all conditions and warranties implied by statute, general law or custom to the maximum extent permitted by law; and
1.9 reference to any statute or subordinate legislation shall extend to any amendment, replacement, re-enactment, consolidation or subordinate legislation of the statute or subordinate legislation referred to.
SERVICES BY COMPANY
2.1 The Company carries on business as a customs broker, freight forwarding agent and third-party logistics operator. The Company is not a common carrier and will accept no liability as such. The Company may refuse at its sole and absolute discretion to accept any Goods for carriage without assigning any reason.
2.2 All Services are governed by these terms and conditions and by the terms and conditions contained in any relevant transport document including a bill of lading, air waybill or consignment note. The Customer acknowledges that such terms and conditions will be taken to be incorporated into every agreement made between the Company and the Customer for the provision of Services.
2.3 The Customer authorises the Company to contract (either in its own name or in the name of the Customer) with any sub-contractor or agent for the performance of the whole or any part of the Services. The Customer acknowledges that any such contract may be made upon any terms and subject to any conditions which the sub-contractor or agent may require, including in every case terms which may have the effect of limiting or excluding the liability of the sub-contractor or agent performing the Services, and that the Customer shall be bound by any such limitation or exclusion of liability.
3. Subject to express instructions in writing given by the Customer and accepted by the Company in writing, 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.
4. Except under special arrangements previously made in writing, the Company will not accept delivery of:
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livestock, plants or perishable goods of any kind; or
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bullion, coins, precious stones, jewelry, antiques or works of art and if any such item is delivered to the Company without prior special arrangement in writing then the Company shall have no responsibility whatsoever for the care, custody or disposal of such item.
5. 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 andexpense.
6. 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, it shall have no responsibility whatsoever for any failure to collect payment on delivery or for the consequences of any failure on the part of the Company to collect such payment on delivery.
INSURANCE
7. The Company shall not affect 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. 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 only and the Company shall have no liability or responsibility in relation to any such insurance policy.
QUOTATIONS AND CHARGES
8.1 Quotations are given on the basis of immediate acceptance and subject to the right of withdrawal or revision by the Company. 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 or without notice to the Customer.
8.2 The Company may charge by weight, measurement or value and may at any time re-weigh, re-measure or re-value the Goods (or request same) and charge additional fees accordingly.
9. Unless otherwise agreed in writing, the whole of the Company’s charges for the provision of the Services are payable in advance. If any charges are not paid by the Customer when due, then interest shall accrue on the amount unpaid calculated at the rate of 0.03288% per day down to the date of payment and shall be paid to the Company on demand.
10. 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.
11. 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, documents and other things (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 to its office address or placed in the Company’s post office box, if so addressed.
12. 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 7 of these conditions 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).
DESCRIPTIONS BY CUSTOMER
13. The Customer, the consignor and the consignee of the Goods, and their respective agents (if any) shall be bound by and be deemed to warrant the accuracy of all descriptions, values, markings and other particulars furnished by any one or more of them to the Company for customs, quarantine, consular and any other purposes and shall be liable for any duty, tax, impost, penalty or outlay of whatever nature levied by the authorities at any port or place for or in connection with the Goods and for any payment, fine, penalty, expense, loss or damage made, incurred or sustained by the Company in connection therewith, arising by reason of any in accuracy or omission of any such description, value, marking or other particular and to indemnify the Company against any such loss, damage, expense, fine, or penalty arising from any such inaccuracy or omission.
14.1 The Customer warrants that:
14.1.1 it has complied with all laws, regulations and codes relating to the nature, condition, labelling, packaging, handling, storage and carriage of the Goods;
14.1.2 the Goods are properly packed to withstand ordinary risks of handling, storage and carriage, having regard to their nature; and
14.1.3 the Goods are not noxious, dangerous, hazardous, inflammable, explosive or likely to cause damage.
14.2 In the event of a breach of the foregoing warranty the Customer shall be liable for any resulting loss or damage suffered by the Company and shall indemnify and keep indemnified the Company against all loss and damage incurred by the Company in connection therewith. In the event that the Goods are found to be noxious, dangerous, hazardous, inflammable, explosive or likely to cause damage 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 road or rail in the States and Territories of Australia.
14.3 The Customer further warrants to the Company that in entering into any agreement with the Company for the provision of Services the Customer has the full lawful authority of all persons who own or have an interest in the Goods.
DECLARATIONS OF VALUE
15.1 The Customer agrees that 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 Regulations 1998 except upon express instructions given by the Customer.
15.2 In the case of carriage by air, no option or declaration of value to increase the air-carrier’s liability under Article 22(2) of the First Schedule to the Civil Aviation (Carrier’s Liability) Act 1959, will be made except on express instructions given in writing by the Customer.
15.3 In all other cases where there is a choice of charges by carriers, warehousemen 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.
RELEASE AND INDEMNITY FOR COMPANY
16. The Customer releases and indemnifies the Company from and against all liability for claims by the Customer or by third parties arising out of the provision or purported provision of the Services whether founded on the alleged negligence, willful default or willful misconduct of any person (including the Company), or on an alleged breach of contract or bailment or on any other cause of action including (without limitation) any of the following liabilities:
16.1 liability to pay duty that would not have otherwise been payable or any penalties (including penalties imposed directly on the Company as a result of its reliance on incorrect information provided by the Customer or the consignor or consignee of the Goods, or their respective agents);
16.2 liability concerning the making of any statement, forecast, information or the giving of any advice in relation to the liability of the Customer to pay customs duty;
16.3 liability in respect of the loss, misdelivery, delay in delivery, non-delivery, contamination, evaporation, deterioration or damage to the Goods;
16.4 liability for loss or depreciation of market attributable to delay in forwarding the Goods or failure to carry out instructions of the Customer;
16.5 liability for loss, damage, expense or additional cost arising from or in any way connected with marks or brands on the Goods or the weight, numbers, content, quality, inherent vice or description of the Goods;
16.6 liability for loss or damage to the Goods resulting from theft, fraud or other criminal activity or from fire, explosion, flood or other accident;
16.7 liability for the loss or damage to any property or for the personal injury or death of any person; and
16.8 liability to pay customs duty or GST resulting from the loss or damage of Goods while in bond storage.
17. The Customer undertakes 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, employee 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, expense or damage that may be suffered as a result of such claims.
GOODS INSUFFICIENTLY ADDRESSED, ETC
18.1 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. 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.
18.2 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 not collected or 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 sale or return of the Goods shall be paid by the Customer. A communication from the Company or its agent to the effect that the Goods cannot be delivered for any reason shall be conclusive evidence of that fact.
18.3 In respect of Clauses 18.1 and 18.2 above, the Company sells or otherwise disposes of such Goods as principal and not as agent and is not trustee of the power of sale.
DAMAGED GOODS
19. If Goods are unloaded from any vessel or other means of conveyance 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.
CUSTOMER’S INSTRUCTIONS
20. Wherever it is necessary, for the purpose of these conditions or any other purpose whatever, 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 of 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 transactions 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.
21. The Company shall be under no obligation to make any declaration to, or to seek any special protection or cover from, the railways authority in any State or any airline or road transport authority in respect of any Goods falling within the definition of that body:
21.1 of dangerous or hazardous goods; or
21.2 of goods liable to be stored in the open unless written instructions to that effect are given to the Company by the Customer.
22. The Company shall have no obligation to take any action in respect of any Goods which 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.
LIMITED WARRANTY BY COMPANY
None of the conditions, warranties or other terms implied by Commonwealth, State or Territory laws (“the implied terms”) shall apply to any agreement between the Customer and the Company for the provision of Services except to the extent that the implied terms cannot be lawfully excluded.
23.1 The Company’s liability for breach of any provision of any such agreement or for breach of any of the implied terms which by force of law cannot be excluded from applying to any such agreement is limited at the option of the Company to:
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re-supplying services which have been found defective; or
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paying the cost of re-supplying services which have been found defective.
23.2 In no event or circumstance whatsoever shall the Company be liable to the Customer for any loss of profits, loss of anticipated savings, economic loss or interruption of business or for any indirect or consequential loss whether of the same or any other kind
23.3 which may arise out of or result from any negligence or default by the Company in the performance or observance of its obligations under any agreement between the Customer and the Company.
COMPANY’S LIEN
24.1 The Company shall have a special and general lien on the Goods and a right to sell the Goods whether by public or private sale or auction without notice, for freight, demurrage, detention charges, duty, fines, penalties, salvage, average of any kind whatsoever and without limitation and for any and all debts, charges, expenses or other sums due and owing by the Customer or the Customer’s principals, servants or agents. The lien shall extend to cover the costs and expenses of exercising the lien and such a sale including reasonable legal fees.
24.2 The lien and rights granted by this Clause 24 shall survive delivery of the Goods and the Company shall be entitled to retain the proceeds of sale of the Goods in respect of any outstanding amounts referred to above.
GOODS AND SERVICES TAX
25. Unless otherwise stated, all charges quoted are exclusive of GST. 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 which shall be payable at the same time as the GST exclusive consideration. The Company agrees to provide the Customer with a tax invoice to enable the Customer to claim input tax credits.
GOVERNING LAW AND JURISDICTION
26. Every agreement (wherever made) between the Customer and the Company for the provision of Services shall be governed by and construed according to the laws of Victoria and shall be subject to the non-exclusive jurisdiction of the Courts of that State.
EXTENT OF DEFENCES, EXEMPTIONS ETC
27.1 Every defense, exemption, limitation of liability, release, indemnity and immunity of whatever kind available to the Company by virtue of these terms and conditions shall also be available to and shall extend to protect all sub-contractors of the Company, all servants or agents of the Company’s sub-contractors and every other person by whom the Services or any part thereof are provided and all persons who are or may be vicariously liable for the acts or omissions of any persons mentioned earlier in this Clause. For the purposes of this Clause, the Company shall be deemed to be acting as agent or trustee on behalf of and for the benefit of all such persons and each of them shall to this extent be deemed to be parties to the agreement between the Customer and the Company.
27.2 All the defenses, exemptions, limitations of liability, releases, indemnities and immunities available to the Company and others by virtue of these terms and conditions shall have full effect in all circumstances including (without limitation) in the event of:
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any negligent act or omission; or
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any breach of contract; or
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any willful default or willful misconduct by or of the Company or any other person entitled to the benefit of such provisions and the Customer acknowledges that the force and effect of such provisions shall in no way be vitiated or abrogated by reason of any breach of any agreement between the Customer and the Company or the breach of any sub-contract entered into pursuant to any such agreement including in every case any fundamental breach of contract or breach of a fundamental term.
GENERAL
28.1 Unless written notification to the contrary is given by the Customer to the Company before any Services are provided to the Customer, the Customer expressly warrants and represents that all or any Services to be supplied by the Company and acquired by the Customer are so supplied and acquired for the purposes of a business, trade, profession or occupation carried on or engaged in by the Customer.
28.2 No agent or employee of the Company has the authority to waive or vary these terms and conditions unless such waiver or variation is approved in writing by the Company.