Standard Terms and Trading Conditions
BTi Logistics Pty Ltd ABN: 755 522 512 488
17-23 Business Park Drive, Ravenhall, Vic 3023

Contents

  1. Definitions and interpretation 1
  2. Nature of Services 9
  3. Power of attorney 10
  4. Acceptance of Trading Conditions 11
  5. Communications with the Company 11
  6. Ability to appoint agents, Sub-contractors and third parties 11
  7. Payment, recovery of Fees and GST 12
  8. Personal property securities 14
  9. Warranties by the Customer 14
  10. Indemnity by the Customer 16
  11. Insurance 18
  12. Storage and transport 19
  13. Perishable, non-deliverable, uncollected, hazardous and damaged Goods 20
  14. Destruction of Dangerous Goods 20
  15. Inspection 21
  16. Delivery 21
  17. Railway declaration 21
  18. Pillaged Goods 21
  19. Storage of Goods pending delivery 21
  20. COD Goods 22
  21. Limitation of liability, force majeure and indemnity from liability to third parties 22
  22. Notification of liability 25
  23. Guarantee, undertaking and indemnity by directors and shareholders 25
  24. Intellectual property 25
  25. Non-Consumer Contract and Non-Small Business Contract provisions 26
  26. Consumer Contract or Small Business Contract provisions 27

 

BTi Logistics Pty Ltd ABN: 755 522 512 488 (the Company)

These contractual conditions apply to all services provided by BTi Logistics Pty Ltd ABN: 755 522 512 488 These Trading Conditions include provisions that entirely change, reduce or exclude rights that you (the Customer) might otherwise have.

The Company acknowledges its obligations. In compliance with those obligations the Company informs the Customer that these Trading Conditions contain certain clauses which do not apply in circumstances where these Trading Conditions constitute a Small Business Contract or Consumer Contract within the meaning of the Australian Consumer Law. These clauses as well as the applicable Consumer Contract and Small Business Contract clauses are clearly identified in these Trading Conditions.

Further, the Company recommends that a Consumer or Small Business seeks independent legal advice in relation to these Trading Conditions.

 

1.             Definitions and interpretation

1.1           Definitions

In these Trading Conditions, the following defined terms will have the following defined meanings:

ABF means the Australian Border Force as defined in the Australian Border Force Act and includes, where applicable, the Department of Home Affairs, the Australian Border Force Commissioner and the Comptroller-General of Customs;

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;

Assets means all assets, Goods, documents and records of the Customer held by or in the possession or control of the Company (whether or not as part of the arrangement under these Trading Conditions or the Service Agreement) and includes, without limitation, the Goods and shipping documents, including, without limitation, bills of lading, insurance policies, commercial invoices and certificates as to weight, quality or other attributes;

ATD has the same meaning as authority to deal as defined in section 4 of the Customs Act;

ATO means the Australian Taxation Office;

Australian Border Force Act means the Australian Border Force Act 2015;

Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth);

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 and as required under section 181 of the Customs Act;

Authorised Signatory means the party who signs the Authority on behalf of the Customer;

Biosecurity Act means the Biosecurity Act 2015 (Cth) and any succeeding Legislation and any regulations made pursuant to the Biosecurity Act;

Business Day means any day that is not a Saturday or Sunday on which banks are open for general banking business in [Insert City, Insert State or Territory];

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 has the same meaning as in the Heavy Vehicle National Law, constituted in the Heavy Vehicle National Law Act 2012 (Qld), the Road Traffic (Vehicles) Act 2012 (WA) and the Road Traffic (Administration) Act 2008 (WA) or such other legislation as may be enacted by a State or Territory Government for the purpose of giving effect to the Council of Australian Governments’ Intergovernmental Agreement on Heavy Vehicle Regulatory Reform dated 25 February 2010;

COD means cash on delivery;

Company means BTi Logistics Pty Ltd ABN: 755 522 512 488 (the Company) as holder of Customs Brokers Licence number 00889C and the nominees, agents, sub-agents and employees of the Company;

Competition and Consumer Act means the Competition and Consumer Act 2010 (Cth) as amended from time to time;

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 bargain, loss of access to markets, loss of goodwill, indirect or remote or unforeseeable loss, loss of business reputation, future reputation or publicity, wasted expenditure, any loss or gain for which restitution damages is capable of being awarded, 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, in the manner provided for under Subsection 23(3) of the Competition and Consumer Act;

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, the shipper, the consignor, the receiver, the consignee the owner of the Goods, the bailor of the Goods or the person for whom any of the Services are performed;

Customs means the Department of Home Affairs and its departments including the ABF;

Customs Act means the Customs Act 1901 (as amended from time to time), and any succeeding Legislation and any regulations made pursuant to the Customs Act;

Customs Broker’s Licence means any licence granted by Customs to a party to operate as a licensed customs broker pursuant to Part XI of 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 Goods or articles or substances of which Goods are comprised which are capable of posing a risk to health, safety, property or the environment and fall within one or more of the UN classifications of dangerous goods or are otherwise liable to cause damage to any person or property whatsoever;

Debts means all amounts owing by the Customer to the Company on any account whatsoever;

Department of Agriculture means the Commonwealth Department responsible for the Agriculture portfolio including the previous Australian Quarantine and Inspection Service and the Department of Agriculture and Water Resources;

Department of Home Affairs means the Department of Home Affairs and its departments including the ABF, the Australian Border Force Commissioner and the Comptroller-General of Customs;

Department of Infrastructure, Regional Development and Cities means the Commonwealth Department responsible for the Infrastructure, Regional Development and Cities portfolio or, if such Department changes name, the Commonwealth Department responsible for the provision of railways at that time.

Depot Licence has the same meaning as depot licence as defined in section 77F of the Customs Act;

Director of Biosecurity has the same meaning as defined in the Biosecurity Act;

Excluded Interest means any of the interests set out in section 8 of the PPSA or any interest that is not a Security Interest but encumbers the Goods;

Exposed Goods Order has the same meaning as defined in subsection 159(3) of the Biosecurity Act;

EU GDPR means the European Union General Data Protection Regulation and includes any other associated or relevant European legislation, regulations or guidelines;

Fees means the fees charged by the Company for provision of the Services, including any disbursements or other charges, levies or other costs incurred in performing the Services and passed on to the Customer;

Goods shall mean the chattels, articles or things tendered for carriage or bailment or other services by the Customer and shall include the container or containers, unit load devices or other packaging containing the same and any other pallet or pallets delivered with the same to the Company;

Government Authorities means, without limitation, all Government departments and agencies, in Australia or in any other country, with responsibility for the import and export of goods, the collection of revenue on the import and export of goods, and the transport and movement of those goods to include, without limitation, the ABF, the Department of Home Affairs the Australian Maritime Safety Authority, the Department of Infrastructure, Regional Development and Cities, the Department of Agriculture, the ATO and the RSA;

Government Rulings means any advice, ruling, decision or precedent provided or published by the ABF or any Government Authorities, including without limitation a Customs Tariff Classification Advice, Valuation Advice, Country of Origin Advice or Tariff Precedent;

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);

Heavy Vehicle National Law means the Heavy Vehicle National Law Act 2012 (Qld) as enacted in the Queensland Parliament and adopted by the States and Territories, including any Regulations made under that Act and any other legislation enacted by the Commonwealth, a State or a Territory for the purpose of giving effect to the Heavy Vehicle National Law or the Council of Australian Governments’ Intergovernmental Agreement on Heavy Vehicle Regulatory Reform dated 25 February 2010;

High-Value Goods has the same meaning as defined in section 9 of the Biosecurity Act;

Incoterms means Incoterms® 2020 issued by the International Chamber of Commerce;

Infringement Notice means a notice issued by a Government Authority, including without limitation, a penalty notice or an infringement notice, issued in respect of an offence or an alleged offence, by which a penalty is imposed without the need for a court appearance;

Input Tax Credit has the same meaning as Input Tax Credit 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.

Intellectual Property means all intellectual property, including each of the following, whether registered or not, and arising under Australian or any other law; any licence or other right to use or grant the use of any of the following; and any application or right to be registered as proprietor or user of any of the following:

  • any business name;
  • any trade or service mark;
  • any patent, invention or discovery;
  • any copyright;
  • any circuit layout or computer software;
  • any design;
  • any trade secret, know-how or confidential information;
  • any moral rights; or
  • any right that is similar to any of the above.

Laws means any International Conventions, treaties or domestic 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 Customs Broker’s Licence, Depot Licence, Warehouse Licence or any other licence issued by Customs or other Government Authority;

Modern Slavery Laws means any Commonwealth, State or Territory legislation or regulations based on or adopted from the provisions of the Modern Slavery Bill 2018 as approved by the Commonwealth or each State, the Modern Slavery Act 2018 (NSW) and any regulations, ordinances and directions made pursuant to the Modern Slavery Laws and any successors to the Modern Slavery Laws;

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;

Parties means the Company and the Customer;

PPSA means the Personal Property Securities Act 2009 (Cth);

Product Emission Standards means the Product Emissions Standards Act 2017 (Cth) and any regulations or guidelines made pursuant to that Act as amended from time to time;

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;

Protected Person has the same meaning as defined in subsection 644(6) of the Biosecurity Act;

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 or which the Company, at its sole discretion, considers to be necessary to comply with the conditions or obligations of its Licences;

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 regulation of heavy vehicles and Chain of Responsibility legislation and the Heavy Vehicle National Law and the laws governing the carriage of goods by road;

Security Interest has the same meaning as under the PPSA;

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)            carriage of the Goods; *

(b)            Advice or information provided in connection with the Services; *

(c)            Customs clearance;

(d)            Delivery services; *

(e)            Warehousing or storage services*

(f)             making any reports, entries and declarations required by any Government Authorities;

(g)            quoting the ABN as may be required under the GST Law;

(h)            providing all necessary information and completing all necessary documentation and reports for the purposes of any Government Authorities; and

(i)              entering into contracts with Sub-contractors on behalf of the Customer to enable the Carriage, import, export, storage or transportation of the Goods;

Shipper means a legal entity or person named on the bill of lading or sea waybill or equivalent multimodal transport document as shipper and/or who (or in whose name or on whose behalf) a contract of carriage has been concluded with a shipping company or any other definition of ‘shipper’ as set out in any Laws or as determined by any Government Authorities;

Shipping Contract means:

1.              a contract of marine salvage or towage;

(j)              a charter party of a ship; or

(k)            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);

Small Business Contract has the meaning given to that term in the Australian Consumer Law;

Sub-contractor means:

(i)              any third party appointed by the Company to assist in the provision of the Services; and

(l)              any person, firm or company which is now or hereafter a servant, agent, employee or subcontractor of any other persons or entities referred to in subclause (a) of this definition;

Supply has the same meaning of Supply under the GST Law;

Tax Invoice has the same meaning as Tax Invoice under the GST Law;

Taxable Supply has the same meaning as Taxable Supply under the GST Law;

Trading Conditions means these BTi Logistics Pty Ltd. Standard Terms and Trading Conditions;

Vessel means any vessel, vehicle or aircraft used to effect Carriage of the Goods, whether by sea, land or air; and

Warehouse Licence has the same meaning as warehouse licence as defined in section 78 of the Customs Act;

 

1.2           Interpretation

(a)            These Trading Conditions, the Service Agreement and any collateral agreements made by the Company with the Customer wherever made shall be governed and construed according to the laws of Victoria Australia and shall be subject to the exclusive jurisdiction of the courts of Victoria Australia and those courts which can hear appeals from those courts.

(b)            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 Victoria Australia 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.

(c)            Subject to clause 26, 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.

(d)            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.

(e)            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.

(f)             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 does not operate as a waiver of another breach of the same or any other Trading Condition or as a continuing waiver.

(g)            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.

(h)            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:

(i)              these Trading Conditions;

(ii)             the Authority;

(iii)           any customer credit application; and

(iv)           any fee quotation estimate or agreement.

(i)              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.

(j)              Reference to any Convention or any Article of any Convention includes any modifications, substitutions or replacements thereof.

(k)            References to clauses and subclauses are references to clauses and subclauses in these Trading Conditions.

(l)              Headings have no effect on interpretation of the Trading Conditions.

(m)           These Trading Conditions do not affect any rights the Customer has under the Competition and Consumer Act.

(n)            If the Service Agreement between the Company and the Customer is a Consumer Contract or a Small Business Contract and is not a Shipping Contract:

(i)              clause 25 does not apply;

(ii)             clause 26 applies; and

(iii)           the laws in force in the place in which the contract is made apply.

(o)            If the Service Agreement between the Company and the Customer is a Shipping Contract or is otherwise not a Consumer Contract or Small Business Contract:

(i)              clause 25 applies; and

(ii)             clause 26 does not apply.

 

1.3           Application

(a)            These Trading Conditions:

(i)              apply to all services provided by the Company; and

(ii)             prevail over:

(A)           any terms and conditions provided by the Customer in respect of the subject matter of these Trading Conditions;

(B)           any terms and conditions contained in any transport document, including any bill of lading, waybill, or consignment note

(together, the Previous Terms), except to the extent expressly provided for in these Trading Conditions.

(b)             Any Previous Terms are excluded by the parties and any previous offer contained in any Previous Terms is rejected by the Company.

(c)            Subject to subclause 1.3(d), the provisions of any other terms and conditions provided by the Company relating to the subject matter of these Trading Conditions (Other Company Terms) are incorporated into these Trading Conditions as if they were set out in full in these Trading Conditions.

(d)            If there is any conflict or inconsistency between these Trading Conditions, the Previous Terms and any Other Company Terms, these Trading Conditions prevail to the extent necessary to resolve such conflict or inconsistency.

 

Trading Conditions

2.             Nature of Services

(a)            The Company carries on business as a Customs Broker under Part XI of the Customs Act and forwarding agent. The Company is not a common carrier and will accept no liability as such. All Services provided by the Company are governed solely by these Trading Conditions which, shall prevail over any terms and conditions of the Customer 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.

(b)            The Company reserves the right to open and weigh all packages and containers and do any other thing necessary in order to inspect all Goods at its discretion and at the Customer’s expense.

(c)            The Company may refuse at its sole and absolute discretion to accept any Goods for Carriage without assigning any reason.

(d)            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 unforeseen, 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.

(e)            The Customer acknowledges and agrees that the Company, its agents, employees and contractors are obliged to comply with certain conditions and Laws in respect of Licences in relation to the Goods or Services and none of the Company, its agents, employees or contractors are in breach of these Trading Conditions or in their obligations to the Customer in complying with such conditions or Laws.

(f)             Without limiting the generality of subclause 2(e), the Customer further acknowledges and agrees that:

(i)              the Company’s Reporting Obligations may require the Company, its agents, employees and contractors to disclose a breach or possible breach of any Customs Related Law to any Government Authority;

(ii)             none of the Company, its agents, employees and contractors will have any liability to the Customer or any other party arising from compliance with its Reporting Obligations or the conditions of its licences; and

(iii)           the Customer must indemnify and keep indemnified the Company, its agents, employees and contractors from all costs and liabilities they incur in relation to their Reporting Obligations in respect of the Services or in relation to the Goods , including all legal costs which include, without limitation any legal costs incurred in determining whether a Reporting Obligation has arisen.

(g)            The Customer acknowledges that the Company complies with its obligations under the EU GDPR.

(h)            The Company is committed to ensuring as far as is reasonably practicable that any carriage of goods by road performed as part of the Services is performed safely and in accordance with the Heavy Vehicle National Law and its CoR provisions. This commitment extends to eliminating, or where elimination is not possible, minimising safety risks and the risk of damage to road infrastructure.  The Company will not comply with any directive or instruction by the Customer that might have the effect of contributing to a breach of the Heavy Vehicle National Law or preventing the Company from taking all steps that it considers to be necessary to prevent any breach of the Heavy Vehicle National Law or to otherwise comply with the duties of care under the Heavy Vehicle National Law.

(i)              The Company has a policy of compliance with its CoR obligations which is subject to regular audit and requires its sub-contractors to also have in place a policy of CoR which is subject to audit and review. In the event of a breach of CoR obligations by the Customer, the Company may cease the provision of further services and may withhold any payment for services where the Customer is a contractor to the Company.

(j)              The Company will not comply with any directive or instruction by the Customer that may cause a driver to exceed a speed limit or to drive while fatigued or in breach of a work or rest requirement under the Heavy Vehicle National Law.

(k)            The Customer agrees that the Company may treat or otherwise deal with the Goods as directed or required by the Department of Agriculture in relation to any biosecurity or other risks.

 

3.             Power of attorney

(a)            Subject to the effect of subclause 3(b) of these Trading Conditions, by agreeing to these Trading Conditions the Customer, constitutes and appoints the Company as its lawful attorney with full irrevocable power and authority to take any and all action and to execute any and all documents and instruments, in the name of and on behalf of the Customer, as may be required or for the purpose of carrying out the terms of this agreement.

(b)            Notwithstanding that the Customer appoints the Company as its attorney, the power and authority vested in the attorney is effective if and when the Customer fails to comply with a request within the required time or in the event of a default of the Customer.

(c)            The Customer acknowledges that the Company will not be liable for any loss or penalty incurred by the Customer as a result of:

(i)              any delay by an attorney in exercising their powers; or

(ii)             an attorney not exercising its powers.

(d)            The Customer indemnifies and will keep indemnified the Company against any reasonable loss or costs it suffers or incurs in exercising powers under this power of attorney.

 

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

(a)            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.

(b)            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

(a)            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 11 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.

(b)            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.

(c)            If any changes occur in the rates of freight, insurance premiums, warehousing, statutory fees or any other charges applicable to the Goods or associated with the Services, quotations and Fees are subject to revision accordingly with notice or, if it is not reasonably practicable, without notice to the Customer.

Without limiting the generality of subclause 7(c) if a change in law, regulation, statutory instrument, or Government Ruling or of any requirement of a Government Authority causes an increase in the costs associated with performance of the Service by the Company, including without limitation, through the introduction of fees, levies, charges, duties or tax, the Company is entitled to recover such additional costs incurred by it and the Fees are subject to revision accordingly with notice or, if it is not reasonably practicable, without notice to the Customer.

(d)            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.

(e)            This subclause 7(e) applies if the Company is or may become liable to pay GST in relation to any Supply under these Trading Conditions:

(i)              unless otherwise stated, all charges quoted are exclusive of the GST imposed under the GST Law;

(ii)             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;

(iii)           the Customer must also pay GST on the Taxable Supply to the Company, calculated by multiplying the GST exclusive consideration by the GST Rate;

(iv)           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;

(v)            the Company agrees to provide the Customer with a Tax Invoice to enable the Customer to claim an Input Tax Credit; and

(vi)           if the Customer defaults in the payment on the due date of any amount payable under subclause 7(e)(ii) 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.

(f)             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.

(g)            The Customer agrees that the Fees will be paid within 14 days of the date of an invoice statement or as otherwise determined by the Company.

(h)            If any amounts payable or due under any agreement between the Company and the Customer (including, without limitation, amounts payable pursuant to subclause 10(a) 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 National Australia Bank 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.

(i)              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.

(j)              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.  

(k)            The lien and rights granted by subclause 7(j) 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 subclause 7(k). The Company sells or otherwise disposes of such Assets pursuant to subclause 7(j) as principal and not as agent and is not the trustee of the power of sale.

 

8.             Personal property securities

(a)            Without limiting the generality of subclauses 7(j) – 7(k), 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 in this subclause 8(a) for the purposes of the PPSA.

(b)            The Customer warrants that it has rights in the Assets and the power to transfer rights in the Assets to the Company.

(c)            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.

(d)            The Customer warrants that it has not, and that it will not grant any other Authority in respect of the Services which the Company has been granted Authority.

(e)            The Customer must not grant any other person a Security Interest in respect of the Assets.

(f)             The Customer must not allow an Excluded Interest to exist over the Goods.

(g)            To the maximum extent permitted by law, if the PPSA applies, the Customer irrevocably waives any rights the Customer may have to:

(i)              receive notices or statements under sections 95, 121(4), 125, 130, 132(3)(d), 132(4) and 135 of the PPSA;

(ii)             redeem the Assets under section 142 of the PPSA;

(iii)           reinstate these Trading Conditions under section 153 of the PPSA; and

(iv)           receive a verification statement (as defined in the PPSA).

(h)            The Customer agrees to do anything (such as obtaining consents, signing and producing documents, producing receipts and getting documents completed and signed) which the Company asks and considers necessary for the purposes of:

(i)              ensuring that a Security Interest is created under these Trading Conditions is enforceable, perfected and otherwise effective; or

(ii)             enabling the Company to apply for any registration, or give any notification, in connection with a Security Interest created under these Trading Conditions so that the Security Interest has the priority required by the Company, including anything the Company reasonably asks the Customer to do in connection with the PPSA.

(i)              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.

 

9.             Warranties by the Customer

(a)            The Customer (on behalf of itself, the consignor and the consignee) warrants to the Company that:

(i)              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;

(ii)             it has not granted any other person a Security Interest in respect of the Assets;

(iii)           it has not allowed an Excluded Interest to exist over the Goods and an Excluded Interest does not exist over the Assets;

(iv)           it will maintain appropriate insurance in respect of the Goods and will not do anything which might void any insurance policy held by the Customer or the Company;

(v)            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;

(vi)           it will retain all documents or records in the manner required by the Government Authorities;

(vii)          it will observe all requirements of any Government Authorities;

(viii)         it will maintain as confidential the terms of the Authority and these Trading Conditions;

(ix)           it has complied with all Laws and regulations of any Government Authorities relating to the nature, condition, packaging, handling, storage, weight and Carriage of the Goods including all Laws prescribed by the RSA and the Heavy Vehicle National Law;

(x)            the Goods are packed to withstand ordinary risks of handling storage and Carriage, having regard to their nature;

(xi)           the Goods are not Dangerous Goods except to the extent that the Parties have agreed in writing to the carriage of Dangerous Goods;

(xii)          the Goods comply with all relevant requirements pursuant to the Product Emissions Standards;

(xiii)         the Goods and their Carriage do not contravene any Laws or the Modern Slavery Laws;

(xiv)         it will comply at all times with all Privacy 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 Services of which the company should be aware; and

(xv)          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 with all OHS Laws.

(b)            The Customer acknowledges that a breach or failure to observe all or any of the warranties in subclause 9(a) 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 10.

 

10.          Indemnity by the Customer

(a)            Without limiting the effect of these Trading Conditions, the Customer agrees to indemnify and keep indemnified the Company for:

(i)              any loss or damage directly or indirectly caused by the Goods or by breach of these Trading Conditions by the Customer;

(ii)             amounts of Customs Duty, GST and other payments made to Government Authorities by the Company on behalf of the Customer;

(iii)           any penalties payable by the Company (whether pursuant to a court order or pursuant to an Infringement Notice) due to the Customer:

(A)           providing information that is incorrect or misleading;

(B)           omitting to provide material information required to the Government Authorities;

(C)           omitting to provide information required by the Company to properly carry out the Services and/or comply with the conditions of any Licences;

(D)           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

(E)           failing to provide information or documentation requested by the Company;

(iv)           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;

(v)            penalties associated with any omission of information required to be provided to any Government Authorities;

(vi)           penalties associated with making or causing to be made, statements which are false or misleading to Government Authorities, except to the extent that such statements were made by the Company in the knowledge that such statements were false or misleading;

(vii)          penalties associated with providing misleading or deceptive information regarding the status of Goods, whether pursuant to the Competition and Consumer Act or other legislation;

(viii)         penalties associated with providing invalid or otherwise inadequate Certificates of Origin as required under any relevant Free Trade Agreement;

(ix)           penalties imposed by any RSA for any breach of the Laws governing the Carriage of goods by road or any breach, act or omission arising out of or pursuant to the Chain of Responsibility obligations or the Heavy Vehicle National Law;

(x)            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;

(xi)           demurrage or other charge for detention or failure to return items provided by the Company pursuant to contracts with other parties;

(xii)          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);

(xiii)         damages payable by the Company arising from or contributed to by errors or misrepresentations by the Customer;

(xiv)         losses or damage incurred by the Company due to a breach by the Customer of any of the warranties in subclause 9(a);

(xv)          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;

(xvi)         any Customs Duty, GST or other charge assessed against the Company in relation to the Goods or Services;

(xvii)        any charges levied by Government Authorities or other costs incurred by the Company for examination and treatment of the Goods;

(xviii)      any costs, charges or fees, including legal fees, incurred in obtaining any Customs Advices whether or not the Company directed or requested the Customer to obtain the Customs Advices;

(xix)         any costs, charges or fees, including legal fees reasonably incurred by the Company in obtaining any Customs Advices on behalf of the Customer if, at its sole discretion, the Company considers it reasonably necessary to do so;

(xx)          any costs or charges incurred by the Company as a result of or in connection with a direction or request from any Government Authority in relation to the Goods or Services;

(xxi)         any costs or charges incurred by the Company as a result of or in connection with a suspension or cancellation by any Government Authority of an ATD in relation to the Goods or Services;

(xxii)        any costs or charges incurred by the Company as a result of or in connection with any variation by any Government Authority of conditions of Licences or the addition by any Government Authority of new conditions on Licences in relation to the Goods or Services;

(xxiii)      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;

(xxiv)      any costs or charges incurred by the Company as a result of or in connection with any suspension or cancellation of Licences by any Government Authority in relation to the Goods or Services;

(xxv)       any costs or charges incurred by the Company as a result of or in connection with the Company complying with any conditions or Laws in respect of any Licences in relation to the Goods or Services;

(xxvi)      any costs or charges incurred by the Company pursuant to subclauses 21(c), 21(d) and 21(e);

(xxvii)     any costs, charges or penalties associated with the Company being deemed to be the Shipper in any arrangements for the transport or movement of the Goods for the Customer whether payable to a Government Authority or otherwise; and

(xxviii)    any costs, charges or penalties associated with the Company deemed to be the Owner of the Goods;

(xxix)      any costs or charges incurred in recovering any amounts payable to the Company (including, without limitation, costs of legal proceedings).

(b)            The Customer agrees to pay any amounts claimed pursuant to the indemnity in subclause 10(a) within 7 days of demand by the Company.

(c)            The nature of the indemnity provided pursuant to subclause 10(a) 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.

(d)            For the purposes of clause 10 the Customer agrees that the Company may take whatever actions as are necessary for the Company to comply with the terms of its Licences including, without limitation, complying with its Reporting Obligations.

(e)            For the purposes of subclause 10(d) the Customer agrees that the Company may take such actions as are necessary to comply with the terms of its Licences whether or not any breach or suspected breach exists in relation to or connection with the Goods or Services provided by the Company.

(f)             Without limiting anything in subclause 10(e) the Customer indemnifies the Company against any penalties, interest, tax or additional duty that is payable as a result of the Company providing information or making statements to any Government Authority as are necessary for the Company to comply with the terms of its Licences or Customs Related Laws.

(g)            The Company may execute all or any of its rights pursuant to clause 7 to recover any amounts owing pursuant to this clause 10.

(h)            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.

11.          Insurance

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. 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.

 

12.          Storage and transport

(a)            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.

(b)            The Customer agrees that:

(i)              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;

(ii)             in the case of Carriage by air, no option or declaration of value to increase air-carrier’s liability under:

(A)           Article 22 of Schedule 1A to the Civil Aviation (Carrier’s Liability) Act 1959; or

(B)           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;

(iii)           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;

(iv)           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;

(v)            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

(vi)           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.

 

13.          Perishable, non-deliverable, uncollected, hazardous and damaged Goods

(a)            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.

(b)            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.

(c)            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.

(d)            In respect of subclauses 13(a), 13(b) and 13(c), the Company sells or otherwise disposes of such Goods as principal and not as agent and is not trustee of the power of sale.

(e)            In the event that any sale of Goods pursuant to subclauses 13(a), 13(b) and 13(c) 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.

 

14.          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 and OHS laws.

 

15.          Inspection

The Company may without liability open any package or other container which the Goods are placed or carried to inspect or weigh the Goods either to determine their weight, nature or condition or to determine their ownership or destination.

 

16.          Delivery

(a)            The Company is authorised to deliver the Goods at the address given to it by the Customer.

(b)            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.

(c)            In the event of the consignee refusing to take delivery as contemplated in subclause 16(b), or not being able 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.

 

17.          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 Infrastructure and Regional Development and Cities, railways authority or provider of railways in any State or any airline or road transport authority in respect of any Goods which fit that body’s description of:

(a)            dangerous or hazardous goods; or

(b)            goods liable to be stored in the open, unless written instructions to that effect are given to the Company by the Customer.

 

18.          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.

 

19.          Storage of Goods pending delivery

(a)            Without limiting the effect of clause 12, 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.

(b)            In circumstances where the Company stores the Goods, the Company may, by notice in writing, require that the Customer remove the Goods for any reason whatsoever within seven 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.

 

20.          COD Goods

The Company may in its absolute discretion refuse instructions to collect Goods on delivery on COD terms 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.

 

21.          Limitation of liability, force majeure and indemnity from liability to third parties

(a)            Without limiting the effect of clause 10 but subject to subclause 26(g) (where it applies), and subject to clause 26, 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:

(i)              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;

(ii)             any liability incurred (including any penalties imposed directly on the Company, its servants or agents) as a result of or in connection with any finding that Certificates of Origin produced pursuant to a relevant Free Trade Agreement are invalid;

(iii)           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;

(iv)           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;

(v)            any loss or depreciation of market value attributable to delay in forwarding the Goods or failure to carry out instructions of the Customer;

(vi)           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;

(vii)          loss or damage resulting from fire, water, explosion or theft;

(viii)         loss, damage or delay occasioned by examination of the Goods by any of the Government Authorities;

(ix)           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 the Department of Agriculture);

(x)            any costs incurred by the Company on behalf of the Customer to any other person in relation to the Carriage of the Goods;

(xi)           any losses, liabilities, costs or charges incurred by the Company as a result of or in connection with a direction or request from any Government Authority in relation to the Goods or Services;

(xii)          any losses, liabilities, costs or charges incurred by the Company as a result of or in connection with a suspension or cancellation by any Government Authority of an ATD in relation to the Goods or Services;

(xiii)         any losses, liabilities, costs or charges incurred by the Company as a result of or in connection with any variation by any Government Authority of conditions of Licences or the addition by any Government Authority of new conditions on Licences in relation to the Goods or Services;

(xiv)         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;

(xv)          any losses, liabilities, costs, charges or penalties incurred by the Company as a result of or in connection with the Company complying with any conditions or Laws in respect of any Licences in relation to the Goods or Services;

(xvi)         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

(xvii)        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.

(b)            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.

(c)            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.

(d)            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.

(e)            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.

(f)             The Company shall not be liable to the Customer for any breach or failure to perform its obligations under these Trading Conditions or any damage or loss to Goods resulting from one of the following:

(i)              perils, dangers and accidents of the sea or other navigable waters;

(ii)             act of God;

(iii)           act of war;

(iv)           act of terrorism;

(v)            act of public enemies;

(vi)           pandemic, epidemic or other major public health emergency;

(vii)          arrest or restraint of princes, rulers or people, or seizure under legal process;

(viii)         strikes or lock-outs or stoppage or restraint of labour from whatever cause, whether partial or general;

(ix)           riots and civil commotions;

(x)            saving or attempting to save life or property at sea; or

(xi)           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.

(g)            If the occurrence of any event contemplated in subclause 21(f) 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.

(h)            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.

(i)              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.

 

22.          Notification of liability

(a)            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.

(b)            If no claim for loss or damage is made within seven days of delivery of the Goods then the Customer is deemed to have accepted the Goods and to the fullest extent permitted by law, waives any claim for loss or damage against the Company in respect of the Services.

 

23.          Guarantee, undertaking and indemnity by directors and shareholders

(a)            If the Customer is a company, the directors and shareholders of that company will guarantee the Debts, undertake to perform the obligations of the Customer and indemnify and keep indemnified the Company against the Debts.

(b)            For the purposes of subclause 23(a), 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.

 

24.          Intellectual property

  • The Customer acknowledges that the Company shall retain all Intellectual Property in any documents or things created by the Company in the course of providing its Services pursuant to these Trading Conditions;
  • Without limiting the effect of subclause 24(a) the Customer acknowledges and agrees that the Company shall retain all results of any research, enquiries or investigations undertaken by it in the course of providing the Services and is not obliged to provide those results to the Customer.

 

25.          Non-Consumer Contract and Non-Small Business Contract provisions

(a)            This clause 25 only applies where the Service Agreement between the Company and the Customer:

(i)              is a Shipping Contract; or

(ii)             is otherwise not a Consumer Contract or Small Business Contract.

(b)            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.

(c)            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.

(d)            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.

(e)            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 25(e), the Company is deemed to be acting as agent or trustee for the Company’s agents, employees, nominees and Subcontractors and each of those persons shall be deemed to be a party to these Trading Conditions.

(f)             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.

(g)            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).

(h)            The indemnity provided in subclause 10(c), 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.

(i)              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.

(j)              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.

(k)            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.

 

26.          Consumer Contract or Small Business Contract provisions

(a)            This clause 26 only applies to the extent that the Service Agreement between the Company and the Customer:

(i)               is a Consumer Contract or a Small Business Contract; and

(ii)             is not a Shipping Contract.

(b)            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.

(c)            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.

(d)             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.

(e)             Where the Company accepts instructions to deliver on a COD basis pursuant to clause 20, 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.

(f)             The Company shall not be liable in any event for any Consequential Loss unless the Company had knowledge that such damage might be incurred.

(g)            Subclause 21(a) will not apply to the extent that:

(i)              the Company directly caused loss or damage; or

(ii)             the loss or damage was caused by negligence or wilful default by the Company, its servants or agents.