Terms and Conditions | Breeze Freight
Breeze FREIGHT PTY LTD
STANDARD TRADING CONDITIONS OF CONTRACT
Effective OCT 2018
These Trading Conditions apply to all services (Services) provided by Breeze Freight Pty Ltd (ABN 53 629 636 148) (the Company).
You should read these Trading Conditions carefully.
We draw your particular attentions to a number of Conditions which give the Company material rights and liberties and/or reduce or exclude rights that you (the Customer) might otherwise have, but for the these Conditions. Such Conditions include the following:
Clause 20: The default interest rate on charges, payable by the Customer, is 2 per cent per month.
Clause 22: The Company’s right to sell the Customer’s Assets and Goods in the event of non-payment of amounts due.
Clause 31: Discharge of the Company’s liabilities if legal proceedings are not commenced and served on the Company within 6 months from delivery of the Goods (or within 12 months from when the Goods should have been delivered).
Clause 32: The Company’s exclusion of liability for loss or damage arising out of the provision of the Services to the Customer (whether caused by negligence or wilful default by the Company its servants, agents or any third party).
Clause 33: The Company’s exclusion of liability for any consequential damages, whether or not the Company had knowledge that such damage might be incurred.
Clause 34: The Company’s limitation of liability for loss or damage occurring during air carriage.
Clause 35: The Company’s limitation of liability for loss or damage occurring during sea carriage.
Clause 37: The Company’s limitation of liability for breach of any guarantees under the Competition and Consumer Act 2010 and the Australian Consumer Law.
STANDARD TRADING CONDITIONS OF CONTRACT
1. In these Conditions:
“Australian Consumer Law” means the law set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth) and any corresponding provisions of state or territory fair trading legislation or the Australian Securities and Investments Commission Act (2001) (Cth).
“Australian Consumer Law Guarantee” means a guarantee applying in respect of a supply of goods or services by virtue of Division 1 of Part 3-2 of the Australian Consumer Law.
“Carrier” means any operator who transports the Goods by road, rail, sea or air.
“Company” means Breeze Freight Pty Ltd (ABN 53 629 636 148) and the nominees, agents, sub-agents, assigns and employees of the Company.
“Conditions” means these Standard Trading Conditions of Contract. “Customer” means the person with whom this Contract is made.
“Dangerous Goods” means cargo which is volatile or explosive or which is or may become dangerous, inflammable or offensive (including radioactive materials) or which may become liable to damage any person or property whatsoever, or which is defined as dangerous goods by the Carrier
“Goods” means the cargo accepted by the Company together with any container, packaging or pallet(s) supplied by or on behalf of the Customer.
“GST” means the goods and services tax imposed by or under a GST Law.
“GST Law” means the same as in the A New Tax System (Goods and Services Tax) Act 1999.
”GST Rate” means the rate of GST under the GST Law.
”Insolvency Event” means any circumstance in which the Customer is unable to pay any amounts that have become due and payable and includes liquidation , official management, administration, compromise arrangement, merger, amalgamation, reconstruction, winding up, dissolution, deregistration, assignment for the benefit of creditors, scheme, composition or arrangement with creditors, insolvency, bankruptcy, or a similar procedure or, where applicable, changes in the constitution of any partnership or person, or death.
“Invoice” means the tax invoice under the GST Law.
“Personal Property Securities Act or PPSA” means the Personal Property Securities Act 2009 (Cth). “Services” mean the whole of the operations undertaken by the Company in respect of the Goods. “Subcontractor” includes any other person who pursuant to a contract or arrangement with any other person (whether or not the Company) provides or agrees to provide the Services or any part of the Services.
“Supply” means the same as in the GST Law.
“Taxable Supply” means any Supply under these Conditions in respect of which the Company is or may become liable to pay GST.
B. NATURE OF SERVICES
2. The Company is not a common carrier and accepts no liability as such. The Company reserves the right to accept or refuse the provision of Services in respect of the Goods at its sole discretion. All Services are provided by the Company subject only to these Conditions which prevail at all times over the conditions of contract of the Customer. In the event of and to the extent of any inconsistency between these Conditions and the conditions which are incorporated into the bill of lading, waybill, consignment note or other transport document issued by the Company, these Conditions prevail.
3. The Customer warrants that it is either the owner or the authorized agent of the person or persons owning or having any interest in the Goods or any part of the Goods and enters into this Contract on its own behalf or as authorized agent of that person or those persons. Further the Customer undertakes to indemnify the Company in respect of any liability whatsoever and howsoever arising (including without limiting the foregoing from negligence or breach of contract or willful act or default of the Company or others) in connection with the provision of the Services and/or the Goods to any person (other than the Customer) who claims to have, who has or may hereafter have any interest in the Goods or any part of the Goods.
4. The Customer warrants that it has complied with all laws and regulations relating to the nature, condition, packaging, handling, storage, documentation and carriage of the Goods and that the Goods are packed to withstand the ordinary risks of handling, storage and carriage, having regard to their nature and indemnifies the Company for all liability and for all costs incurred as a result of or arising out of a breach of this warranty. Further the Customer must provide to the Company all such assistance, information and documentation that may be necessary to enable the Company to comply with such laws and regulations.
5. All customs and/or excise duties, costs, fines or penalties which the Company becomes liable to pay for any reason whatsoever in respect of the Goods and any documentation relating to the Goods pursuant to any applicable laws or regulations (whether or not resulting from or arising out of the negligence of the Company) shall be paid by the Customer.
C. ACCEPTANCE OF CONDITIONS
6. Any instructions received by the Company from the Customer for the supply of services shall constitute acknowledgement by the Customer that it has received, understands and agrees to be bound by these Conditions and will be bound by these Conditions. Such instructions received by the Company from the Customer for the supply of services and/or any supply of goods shall also constitute authorisation for the Company to act on behalf of the Customer in accordance with these Conditions.
7. Any other party receiving delivery of goods or other services from the Company, including but not limited to receivers of goods, acknowledges and agrees to be bound by these Conditions and will be bound by these Conditions from the time it has received delivery of goods or other services from the Company. Such party shall be deemed a “Customer” for the purposes of these Conditions and shall have the same obligations as the Customer as set out in these Conditions.
8. The Company shall not be bound by any agreement purporting to waive or vary these Conditions unless such agreement to so waive or vary shall be in writing and signed by an executive officer of the Company.
D. CUSTOMER WARRANTIES AND INDEMNITY
9. The Customer (on behalf of itself, any shipper, consignor and any consignee) warrants to the Company that:
(a) it will provide all documents, information and assistance required by the Company to comply with the requirements of any government authorities in an accurate and timely fashion as required by those government authorities;
(b) it will observe all provisions of any government authority;
(c) it has complied with all laws and regulations of any government authority relating to the nature, condition, packaging, handling, storage and carriage of the Goods;
(d) the Goods are packed to withstand ordinary risks of handling storage and carriage, having regard to their nature;
(e) the Goods will not damage or cause loss to any shipping containers, other goods, or other equipment;
(f) the Goods and their carriage do not contravene any laws;
(g) the Customer is the legal owner of the Goods or legally entitled to authorise their carriage; and
(h)the Customer has complied with all requirements of AMSA Marine Order 42 (Carriage, stowage and securing of cargoes and containers) 2016 (MO 42), in particular in relation to verification of gross mass of cargo units and cargo carried in certain containers, and have provided all necessary information to the Company in compliance with MO 42 as requested from time to time by the Company.
10. Without limiting the effect of these Conditions, the Customer agrees to indemnify and keep indemnified the Company for any liabilities, losses, damages and costs incurred as a result of any breach by the Customr of any of the warranties set out in these Conditions.
E. DANGEROUS GOODS
11. (i) The Customer shall not tender for the provision of Services by the Company any Dangerous Goods without presenting to the Company a full description disclosing their nature and any information required by the Carrier and in any event the Customer shall be liable for all death, bodily injury, loss and/or damage thereby caused and shall indemnify the Company for such liability.
(ii) If, in the opinion of the Company or the Carrier, the Goods are or are liable to become of a dangerous, inflammable, explosive, volatile, offensive or a damaging nature, they may at any time be returned, destroyed, disposed of or abandoned or rendered harmless by the Company or the Carrier on the Company’s behalf without compensation to and at the cost of the Customer.
F. COMPANY LIABILITY
12. The Goods are at the risk of the Customer and not of the Company save for liability imposed upon the Carrier or the Company by any legislation or treaty, the Company shall not be responsible in tort, bailment, conversion, contract or any otherwise available action for any loss or damage however caused, arising from the Services, any consequential loss arising from the Services, or any failure to provide or delay in the provision of the Services, or for any loss arising from the actions of its servants or agents whether unintentional or deliberate. Any liability imposed upon the Company or Carrier by the customer shall be limited to the cost of services or the amount prescribed by such legislation or treaty. This Clause shall apply to all, and the consequences of all, such loss of or damage to or deterioration of the Goods or misdelivery or failure to deliver or delay in delivery of the Goods or failure to provide or delay in providing the Services whether or not the same occurs in the course of performance by or on behalf of the Company of the Contract or in events which are in the contemplation of the Company and/or the Customer or in events which are foreseeable by them or either of them or in events which could constitute a fundamental breach or a breach of a fundamental term of the Contract.
13. Where any handling, installation, removal, assembly or erection of any kind whatsoever is required to be undertaken by the Company, the Company shall not be liable for any death, injury, loss or damage which may result from or arise out of what the Company undertakes. Further the Customer shall indemnify the Company in respect of any such liability whether or not that liability arises from negligence or breach of contract or willful act or default of the Company or the Company’s servants, agents or Subcontractors.
14. (i) The Customer authorizes the Company to contract with the Carrier and any Subcontractor to subcontract on any terms the whole or part of the provision of the Services.
(ii) The Customer undertakes:
(a) that no claim or allegation shall be made, whether by the Customer or any other person who is or who may subsequently be interested in the provision of the Services and/or in the Goods, against any person (other than the Company) by whom (whether it is a Subcontractor, principal, employer, servant, agent or otherwise) the Services or any part of the Services are or is provided which imposes or attempts to impose upon such person any liability whatsoever and howsoever arising (including without limiting the foregoing from negligence or breach of contract or wilful act or default of the Company or others) in connection with the provision of the Services and/or the Goods and if such claim or allegation should nevertheless be made to indemnify the Company and the person against whom such claim or allegation is made against the consequences of such claim or allegation. For the purpose of this Clause 12(ii), the Company is or 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 and all such persons and each of them shall to this extent be or be deemed to be parties to this Contract; and
(b) to indemnify the Company against any claim or allegation made against it by any person in connection with any liability, arising out of or relating to the provision of the Services and/or the Goods.
15. Every exemption, limitation, condition and liberty in these Conditions and every right, exemption from liability, defense and immunity of whatsoever nature applicable to the Company or to which the Company is entitled in accordance with these Conditions shall also be available and shall extend to protect:
(i) all Subcontractors;
(ii) every servant or agent of the Company or of a Subcontractor;
(iii) every other person (other than the Company) by whom the Services or any part of the Services are or is provided; and
(iv) all persons who are or may be vicariously liable for the acts or omissions of any persons falling within paragraphs (i), (ii) or (iii) of this Clause 13:
and, for the purpose of this Clause 13, the Company is or shall be deemed to be acting as agent or trustee on behalf of and for the benefit of such persons and each of them and all such persons and each of them shall to this extent be or be deemed to be parties to this Contract.
H. SERVICE PROVISION DISCRETION
16. (i) The Customer authorizes any deviation from the usual manner in which the Services are provided which may in the absolute discretion of the Company be deemed reasonable or necessary in the circumstances.
(ii) If the Customer expressly or impliedly instructs the Company to use or it is expressly or impliedly agreed that the Company will use a particular method of providing the Services the Company will give priority to that method but its adoption remains at the sole discretion of the Company and the Customer authorizes the Company to provide the Services by another method.
17. Insurance will not be arranged by the Company except with the express written instructions of the Customer and then only at the Customer’s expense and on lodgement of a declaration as to value prior to acceptance of the Goods by the Company. The Company may recover any expenses incurred from the Customer for arranging such insurance.
18. The charges of the Company shall be considered earned as soon as the Goods are delivered to the Company and, except as required by law, none of those charges will be refunded. The Company may charge by weight, measurement or value and may at any time reweigh, re-measure or revalue or require the Goods to be reweighed, re-measured or revalued and charge proportional additional charges accordingly. Except as required by law, the Customer is and remains responsible to the Company for all its proper charges whether or not the Goods are delivered and/or the Services are provided as instructed and whether or not they are damaged.
19. The Customer will indemnify the Company for all charges and liabilities arising in connection with the use of any container or containers including repair costs, cleaning costs and/or detention charges. The Customer’s indemnity will include any reasonable costs, either administrative or legal, incurred by the Company in recovering from the Customer any amounts owing, pursuant to this s indemnity.
20. If any amounts payable under any agreement between the Company and the Customer (including, without limitation, charges payable for Services provided by the Company) are not paid within seven days of the due date, all amounts due to the Company by the Customer shall immediately and without further notice become due and payable. Furthermore in that event, 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 at the rate of 2 per cent per month on the amount outstanding calculated from the due date until payment is made in full. The Company may take any legal proceedings or take any action permitted under these Conditions to recover amounts owing pursuant to these Conditions and the Company may recover all legal costs incurred in doing so.
21. Every special instruction to the effect that charges shall be paid by a person other than the Customer shall be deemed to include a stipulation that if that nominated person does not pay those charges within seven (7) days of delivery or attempted delivery of the Goods, then the Customer shall pay those charges to the Company within seven (7) days of being notified of that person’s failure to pay.
K. LIEN ON GOODS
22. The Customer hereby grants to the Company, its servants and agents a general lien on any Goods and any documents relating to those Goods, and a right to sell the Goods and documents whether by public or private sale or auction without notice, for all sums payable by the Customer to the Company including freight, demurrage, container detention charges, container repair costs, container cleaning costs, 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 its servants or agents. In addition, the lien shall cover the costs and expenses of exercising the lien and of such a sale including reasonable legal fees. The lien and rights granted by this clause 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 in this clause. Where the proceeds of sale are not sufficient to cover all amounts payable to the Company, the Company is entitled to recover any deficit from the Customer. The Company sells or otherwise disposes of such Goods and any other documents as principal and not as agent and is not the trustee of the power of sale.
23. The Company’s right to a lien shall persist independently notwithstanding the existence of any other security interest in the Goods pursuant to the PPSA or any other legislation.
24. From the time the Company, or its servants or agents, receive the Goods into its custody, the Goods and all of the Customer’s present and future rights in relation to the Goods and any documents relating to those Goods, are subject to a continuing security interest in favour of the Company for the payment of all the amounts owed for freight, demurrage, container detention charges, duty, fines, penalties, salvage, average of any kind whatsoever and without limitation and for any at all debts, charges, expenses or any other sums due and owing by the Customer or the Customer’s principals, servants or agents. Further, the continuing security interest shall cover all the costs and expenses of exercising the lien, including the costs of a public or private sale or auction, including legal and administration costs.
25. For the purpose of these trading conditions the Company shall be deemed to have custody and possession of the Goods whether the Goods are in the actual physical custody and possession of the Company or any subcontractors, servants or agents, and whether or not the Company is in possession of any documents of title relating to the Goods. The Customer and the Company agree that the Company has possession of the Goods within the meaning of section 24 of the Personal Properties Securities Act 2009 even if the Goods are in possession of the Company’s subcontractor’s servants or agents.
26. The Customer acknowledges that the Company may, at the Customer’s cost, register its security interests granted by the Customer under these trading conditions, and all of the Customer’s present and future rights in relation to the Goods, on the Personal Property Securities Register established under PPSA.
27. The Customer will immediately inform the Company if an Insolvency Event occurs with respect to the Customer. The Customer shall not change its name or other details without first notifying the Company in writing with at least 14 days notice before such change takes effect.
28. The Customer will not:
(a) permit to subsist any other security interest in relation to the Goods which would rank ahead of the Company’s interests or;
(b) except in the normal course of business, sell, lease or dispose of, or permit the sale, lease or disposal of the Goods.
29. In addition to any rights that the Company has under the PPSA the Company shall have the right, as the Customer’s agent, at any time while any amount owing by the Customer to the Company under the Contract remains outstanding, to enter into the premises where the Goods are stored and remove them without being responsible for any damage caused in exercising this right. The Customer shall indemnify the Company for all such monies and all such costs, charges and expenses in repossessing the Goods.
30. The Customer and Company agree pursuant to section 115 of the PPSA to contract out of sections 95, 96, 120, 121, 123 and 125 and, to the extent permitted by law, Divisions 3 and 4 of the PPSA.
31. (i) Any claim for loss or damage must be notified in writing to the Company within seven (7) days of Delivery of the Goods or of the date upon which the Goods should have been delivered.
(ii) The Company shall be discharged from all liability whatsoever in connection with the services and/or the Goods if the Customer does not give written notice of damage or loss within seven (7) days of the delivery of the Goods or of the date upon which the Goods should have been delivered .
(iii) In any event the Company shall be discharged from all liability whatsoever in connection with the provision of the Services and/or the Goods unless suit is brought and notice given within twelve (12) months of the provision of the Services or delivery of the Goods or when the Services should have been provided or the Goods should have been delivered.
32. To the full extent permitted by law, the Company its subcontractors, servants and agents shall not be responsible for loss or damage of any kind whatsoever or howsoever arising out of the provision of its Services to the Customer (whether caused by negligence or wilful default by the Company its servants, agents or any third party). The Customer further agrees to indemnify the Company in respect of any claims made by any party, including but not limited to any sub-contractor or third party concerning the provision of Services by the Company.
33. The Company shall not be liable in any event for any special, incidental, or consequential damages, including, but not limited to, loss of profits, income, utility, interest, or loss of market, whether or not the Company had knowledge that such damage might be incurred.
34. The Company and Customer acknowledge that Goods moving by airfreight are subject to the applicable international treaties including the Convention for the Unification of Certain Rules relating to International Carriage by Air, signed in Montreal in 1999 (Montreal Convention). If Goods are lost or damaged while in the possession of the airline carrier, the airline carrier’s liability is limited to the maximum amounts of liability applicable at any time, as set out in the Montreal Convention with subsequent increases.. However, if any mandatory applicable laws provide for different limits of liability, those different limits will apply. The Customer’s recovery of any loss or damage is against the airline carrier and is limited in accordance with these 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 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 airline carrier.
35. The Company and Customer acknowledge that Goods moving by seafreight are subject to the applicable international treaties including the International Convention for the Unification of Certain Rules relating to Bill of Lading signed at Brussels on August 25, 1924 (the Hague Rules), or those rules as amended by the Protocol signed at Brussels on February 23, 1968 (the Hague Visby Rules) and the SDR Protocol (1979). However, if any mandatory applicable laws provide compulsorily for different limits of liability, those different limits will apply. The Customer’s recovery of any loss or damage is against the seafreight carrier and is limited in accordance with these 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 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 seafreight carrier.
36. (i) All the rights, immunities and limitations of liability in these Conditions shall continue to have their full force and effect in all circumstances and notwithstanding any breach of this Contract or of these Conditions by the Company or any other person entitled to the benefit of such provisions.
(ii) It is agreed that if any provision or any part of any provision of these Conditions is unenforceable such unenforceability shall not affect any other provision or any other part of such provision.
37. The liability of the Company arising out of any one incident not occurring during, and is not ancillary to, transport or storage for breach of any guarantees under the Competition and Consumer Act 2010 and the Australian Consumer Law, or comparable legislation in each of the States and Territories of Australia, or howsoever arising, is limited to any of the following as determined by the Company:
a) the supplying of the Services again; or
b) the payment of the cost of having the Services supplied again; or
c) or the value of the Goods the subject of these Trading Conditions at the time the Goods were received by the Company.
N. GUARANTEE BY DIRECTORS
38. If the Customer is a company, the directors of that company will guarantee the payment of all charges payable to the Company under these Conditions and indemnify and keep indemnified the Company against such charges. The Customer will ensure that its directors sign any other documents required by the Company to evidence and confirm such guarantee and indemnity.
O. GOVERNING LAW
39. These Conditions shall be governed by and construed in accordance with the laws of New South Wales and any dispute between the parties shall be referred to the exclusive jurisdiction of the courts of New South Wales or the Federal Court of Australia.
This Clause 40 applies if the Company is or may become liable to pay GST in relation to any Supply under these Conditions.
Unless otherwise stated, all charges quoted are exclusive of GST. In addition to such charges, the Customer must pay GST on the Taxable Supply to the Company of an amount equal to the GST
exclusive consideration multiplied by the GST Rate. 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. In all other respects, GST shall be payable by the Customer to the Company upon the same basis as the GST exclusive consideration is payable by the Customer under these Conditions.
The Company must issue an Invoice or Invoices to the Customer for the amount of GST referable to
the Taxable Supply. The Company must include in any such Invoice such particulars as are required by the GST Law in order that the Customer may obtain an input tax credit for the amount of GST payable on the Taxable Supply.
If any part of the consideration is referable to both a Taxable Supply and anything that is not a
Taxable Supply, the amount of GST payable by the Customer shall be determined by the Company and shall be the same amount of GST that would be payable if the Taxable Supply were the only Supply made to the Customer.
If the Customer makes default in the payment on the due date of any amount payable pursuant to
Clause 40 (ii) then without prejudice to any other remedies of the Company, the Customer shall pay
to the Company upon demand an amount equal to the amount of any damages or interest or
additional GST that may become payable by the Company arising out of the default of the Customer.
These terms and conditions must be read having regard to the provisions of the Trade Practices Act to the extent that those provisions are applicable to consumers as defined under section 4B of that Act…
These terms and conditions must be read having regard to the provisions of the Trade Practices Act to the extent that those provisions are applicable to consumers as defined under section 4B of that Act. These terms and conditions do not have the effect of excluding, restricting or modifying rights under that Act which cannot be excluded, restricted or modified by agreement.
1. All and any business undertaken Breeze Freight PTY LTD (hereinafter called “the Company”) is transacted subject to these conditions each of which shall be deemed to be incorporated in and to be a condition of any agreement between the Company and its customers. The Company only deals with goods subject to these conditions. The Company is not a common carrier and shall accept no liability as such;
(b) The Company in its sole and absolute discretion may refuse to deal with any goods without assigning any reason therefore.
2. Any instructions given to the Company may in the absolute discretion of the Company be complied with by the Company as agent for the customer as disclosed principal or by the Company as principal contractor by its own servants performing part or all of the relevant services or by the Company employing or instructing or entrusting the goods to others on such other conditions as they may stipulate to perform part or all of the services. The customer shall be bound by such other conditions and shall release the Company from liability and indemnify the Company against any claims arising out of their acceptance.
3. Customers entering into transactions of any kind with the Company expressly warrant that they are either the owners or the authorised agents of the owners of any and all goods or property the subject matter of the transaction. By entering into the transaction they accept these conditions for themselves and for all other parties on whose behalf they are acting and they warrant that they have authority so to do.
4. Subject to express instructions in writing given by the customer and by the Company, the Company reserves to itself complete freedom of choice of means route and procedure to be followed in the handling and transportation of goods. If in the Company’s opinion it is necessary or desirable in the customer’s interests to depart from any express instructions, the Company shall be at liberty to do so.
5.Except where the Company is instructed in writing to pack the goods the customer warrants that all goods have been properly and sufficiently packed and/or prepared.
6.The Company is entitled to retain and be paid all brokerages, commissions, allowances and other remunerations retained by or paid to Ship Forwarding Agents (or Freight Forwarders) and Insurance Brokers.
7. Quotations are given on the basis of immediate acceptance and subject to the right of withdrawal before acceptance and revision after acceptance. If any changes occur in the rates of customs, duty, freight, warehousing, insurance premiums or other charges applicable to the goods, quotations and charges shall be subject to revision accordingly with or without notice.
8. The customer, and the senders, owners and consignees of any goods and their agents, if any shall be deemed to be bound by and to warrant the accuracy of all descriptions, values and other particulars furnished to the Company for customs consular and other purposes and shall jointly and severally indemnify the Company against all losses, damages, expenses and fines arising from any inaccuracy or omission, even if such inaccuracy or omission is not due to any negligence, wilful act or omission.
9. The customer and the senders, owners and consignees and their agents, if any, shall be jointly and severally liable for any duty, tax, impost, excise, levy, penalty, deposit or outlay of whatsoever nature levied by any Government or the authorities at any port or place in connection with the goods and for any payments, fines, expenses, loss or damage incurred or sustained by the Company in connection therewith and shall indemnify the Company, its servants and agents from all claims by third parties howsoever arising in connection with the goods.
10. When goods are accepted or dealt with upon instructions to collect freight, duties, charges or other expenses from the consignee or any other person the customer shall remain responsible for the same if they are not paid by such consignee or other person.
11. The Customer shall be responsible for the timely return of any container to the person who owns or has a right to possession of the container in a clean and undamaged condition.
The Customer agrees to indemnify the Company against any claim, liability or expense, including detention or demurrage charges, which arise as a result of:
a failure to return the container, or
(b) a delay in the return of the container beyond the customary period allowed for container returns, or
(c) any damage to the container, or
(d) the container being returned in a dirty or contaminated condition,
regardless of who failed or delayed in the return of the container or where or by whom the
container was damaged, made dirty or contaminated.
12. The Customer shall indemnify the Company against any claim, liability or expense which
arises as a result of delay in loading or unloading of the Customer’s Goods, or any waiting time,
detention or demurrage for any truck or any other conveyance whatsoever.
13. (1) The Company’s charges to the customers including freight shall be deemed fully earned
on receipt of the goods by the Company and shall be paid and non-returnable in any event, cargo lost or not lost or a voyage or flights broken up or abandoned. If there shall be a forced interruption or abandonment of a voyage or flight at the port or airport of shipment or elsewhere, any forwarding of the goods or any part thereof shall be at the risk and expense of the customer and the senders, owners and consignees.
(2) All unpaid charges shall be paid in full and without any offset, counterclaim or deduction, in the currency of the place of receipt of the goods or at the Company’s option, in the currency of the place of delivery at the TT selling rate in effect on the day of payment. If the date determined above falls on a day which banks are closed for business, the rate ruling on the next succeeding business day shall govern.
(3) The Company’s charges including freight have been calculated on the basis of particulars furnished by, or on behalf of the customer. The Company may at any time open any container or any other package or unit in order to re-weigh, re-measure or re-value the contents and if the particulars furnished by or on behalf of the customer are incorrect, it is agreed that a sum equal to either five times the difference between the correct freight and the freight charged, or double the correct freight less the freight charged, whichever sum is smaller, shall be payable as liquidated damages to the Company.
14. No insurance will be effected except upon express instructions as to the risks to be insured against and the value or values to be declared in writing by the customer and all insurances effected by the Company subject to the usual exceptions and conditions of the policies of the insurance company or underwriters accepting the risk. The Company shall not be under any obligation to effect a separate insurance on each consignment but may declare it on any open or general policy. Should the insurers dispute their liability for any reason the insured shall have recourse against the insurers only and the Company shall not be under any responsibility or liability in relation thereto, notwithstanding that the premium upon the policy may not be at the same rate as that charged by the Company or paid to the Company by its customer.
15. The Company shall not be liable:
for loss of or damage to goods unless such loss or damage occurs whilst the goods are in the actual custody of the Company and under its actual control and unless such loss or damage is due to the wilful neglect or default of the Company or its own servants;
(b) for any delay in delivery, forwarding or transit or failure to deliver goods, any deterioration, contamination, evaporation or any consequential loss or loss of market however caused;
(c) for failure to follow instructions given to it by or on behalf of the customer whether or not such failure is wilful;
(d) for any damage or expense arising from or in any way connected with marks, numbers, brands, contents, quality or description of any goods;
(e) for loss or damage resulting from fire, water, explosion or theft whether caused by negligence of the Company’s servants or otherwise;
16. The Company shall not be liable under any circumstances for loss or damage resulting from or attributable to any quotation, statement, representation or information whether oral or in writing howsoever, wheresoever or to whomsoever made or given by or on behalf of the Company or by any servant, employee or agent of the Company as to the classification of the liability for or the amount, scale or rate of customs and/or excise duty or other impost, tax or rate applicable to any goods or property whatsoever.
(b) The Company does not accept responsibility or liability in relation to any decision taken or liability incurred on the basis of any such quotation, statement, representation or information.
17. Liability of the Company arising out of any one incident whether or not there has been any declaration of value of the goods, for breach of warranty implied into these terms and conditions by the Trade Practices Act 1974 or howsoever arising, is limited to any of the following as determined by the Company:
the supplying of the services again; or
(b) the payment of the cost of having the services supplied again; or
(c) the lesser of A$200.00 for loss of or damage to any such goods, packages or units or A$2.00 per kilogram of the gross weight for loss of or damage to any such goods, packages or units or A$20.00 per package or unit lost or damaged.
For the purposes of this clause the word “package” shall include the contents even if particulars have been provided or incorporated in any document of the Company.
18. The Company shall be discharged of all liability unless suit is brought in the proper forum and written notice thereof received by the Company within six months after delivery of the goods or the date when the goods should have been delivered. In the event that the said time period shall be found contrary to any Convention or law compulsorily applicable the period prescribed by such Convention or law shall then apply but in that circumstance only.
19. In the case of carriage by sea, the value will not be declared or inserted in the Bill of Lading for the purpose of extending the Ship owners’ liability under Article IV Rule 5 of Schedule 1 of the Carriage of Goods by Sea Act 1991 except upon express instructions given in writing by the customer.
(b) In the case of Carriage by Air, no optional declaration of value to increase the Air Carriers liability under the Carriage by Civil Aviation (Carrier’s Liability) Act 1959, Article 22(2) of Schedule 1 as amended by Schedule 2 will be made except upon express instructions given in writing by the customer;
(c) In all other cases where there is a choice of tariff rates according to the extent of the liability assumed by carriers warehousemen or others no declaration of value (where optional) will be made for the purposes of extending liability and goods will be forwarded or dealt with at owners risk or other minimum charges unless express instructions in writing to the contrary are given by the customer.
20. Instructions to collect payment on delivery (COD) in cash or otherwise are accepted by the Company upon the condition that the Company in the matter of such collection will be liable for the exercise of reasonable diligence and care only.
21.Perishable goods, which are not taken up immediately upon arrival or which are insufficiently addressed or marked or otherwise not identifiable may be sold or otherwise disposed of without any notice to the customer and payment or tender of the net proceeds of any sale after deduction of charges shall be equivalent to delivery. All charges and expenses arising in connection with the sale or disposal of the goods shall be paid by the customer.
22. Non-perishable goods which cannot be delivered either because they are insufficiently or incorrectly addressed or because they are not collected or accepted by the consignee 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 address which the customer gave to the Company on delivery of the goods. All charges and expenses arising in connection with the sale or return of the goods shall be paid by the customer. A communication from any agent or correspondent of the Company to the effect that the goods cannot be delivered for any reason shall be conclusive evidence of that fact.
23. Except under special arrangements previously made in writing the Company will not accept or deal with any noxious, dangerous, hazardous or inflammable or explosive goods or any goods likely to cause damage. Any person delivering such goods to the Company or causing the Company to handle or deal with any such goods (except under special arrangements previously made in writing) shall be liable for all loss or damage caused thereby and shall indemnify the Company against all penalties claims damages costs and expenses arising in connection therewith and the goods 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 so 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 cartage by road or rail in the States and Territories of Australia.
24. Except under special arrangements previously made in writing the Company will not accept bullion, coins, precious stones, jewellery, valuables, antiques, pictures, livestock or plants and the Company will not accept any liability whatever for any such goods except under special arrangements previously made in writing.
25.Pending forwarding and delivery goods may be warehoused or otherwise held at any place or places at the sole discretion of the Company at the customers or owner’s risk and expense.
26.All goods and documents relating to goods shall be subject to a particular and general lien for moneys due either in respect of such goods or any particular or general balance of other moneys due from the customer, the senders, owners or consignee to the Company. If any moneys due to the Company are not paid within one calendar month after notice has been given to the person from whom the moneys are due that such goods are detained, they may be sold by auction or otherwise at the sole discretion of the Company and at the expense of such person and the proceeds applied in or towards satisfaction of such particular and general lien.
27. By entering into any agreement to which these conditions apply, the customer on his own behalf and as agent of the owner, sender and consignee agrees and further offers to limit the liability of all servants, employees and agents of the Company in respect to the goods and subject to the agreement to the extent that each such servant, employee and agent shall be protected by and entitled to the full benefit of all provisions in these conditions excluding or restricting tortious liability of any kind;
(b) The offer hereinbefore referred to shall be accepted by the act of each such servant employee or agent in performing any function in relation to or affecting the goods the subject of the agreement;
(c) For the purposes of the foregoing provisions of this clause the Company is and shall be deemed to be acting as agent on behalf of and trustee for the benefit of all persons who are or become its servants employees or agents from time to time and all such persons shall to this extent be and be deemed to be parties to the agreement concerned.
28. In addition to and without prejudice to the foregoing Conditions the customer undertakes that it shall in any event indemnify the Company against all liabilities suffered or incurred by the Company arising directly or indirectly from or in connection with the customer’s instructions or their implementation or the goods including containers and in particular the customer shall indemnify the Company in respect of any liability it may be under to any servant, agent or sub-contractor, or any haulier, carrier, warehouseman, or other person whatsoever at any time involved with the goods arising out of any claim made directly or indirectly against any such party by the customer or by any sender, consignee or owner of the goods or by any person interested in the goods or by any other person whatsoever.
29. Without prejudice to any other Condition, the Company shall have the right to enforce any liability of the customer under these conditions or to recover any sums to be paid by the customer under these conditions not only against or from the customer but also if it thinks fit against or from the sender and/or owners and/or consignees of the goods.
30. The use of a customer’s own form shall in no way derogate from these conditions the whole of which shall, notwithstanding anything contained in any such form, constitute terms of the agreement so entered into. Any provision in any such form which is contrary to any provision of these Conditions shall to the extent of such inconsistency be inapplicable.
31. The goods shall be deemed to have been delivered as described unless notice of loss or of damage to the goods indicating the general nature of such loss or damage shall have been given in writing to the Company or to its representative at the place of delivery before or at the time of removal of the goods by a representative of the person entitled to delivery thereof or if the loss or damage be not apparent within three consecutive days thereafter.
32. No agent or employee of the Company has the Company’s authority to alter or vary these conditions.
33. All the rights, immunities and exemptions from liability in these terms and conditions shall continue to have their full force and affect in all circumstances and not withstanding any breach of this contract or of any of these terms and conditions by the Company or any other person entitled to the benefit of such provisions and irrespective of whether such may constitute a fundamental breach of contract or a breach of a fundamental term.
34. These conditions shall be governed by and construed in accordance with the laws of the State or Territory in which this contract was made.