These Trading Conditions apply to all Services provided by Across the Ocean Shipping Pty Ltd [ACN 162 529 035) (the Company) and include provisions that entirely change, reduce or exclude rights that the Customer (you) might otherwise have.
These Trading Conditions contain clauses which will not apply in circumstances where these Trading Conditions constitute a Small Business Contract or Consumer Contract, as defined in the Australian Consumer Law. These clauses, in addition to the applicable Small Business Contract and Consumer Contract are clearly identified in these Trading Conditions.
A Consumer or Small Business, as defined, should seek independent legal advice in relation to these Trading Conditions
1. Definitions and Interpretation
In these Trading Conditions the following defined terms have the following stated meanings:
ABF means the Australian Border Force and includes where applicable the Department of Home Affairs, the Australian Border Force Commissioner, and the Comptroller-General of Customs.
Assets means all Goods, documents, records and other things held in the possession, custody or control of the Company.
ATD has the same meaning as Authority to Deal contained at section 4 of the Customs Act 1901 (Cth).
ATO means the Australian Taxation Office.
Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth).
Australian Consumer Law Guarantee means the law set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth) and any corresponding provisions of any State or Territory fair trading legislation or the Australian Securities and Investments Commission Act (2001) (Cth).
Authority means the Authority provided by the Customer to the Company, pursuant to which the Customer appointed the Company to act on its behalf under these Trading Conditions and as required under section 181 of the Customs Act 1901 (Cth).
Biosecurity Act means the Biosecurity Act 2015 (Cth) (as amended from time to time), and any succeeding legislation and any regulations made pursuant to the Biosecurity Act.
Business Day means any day that is not a Saturday, Sunday or public holiday declared in the State of Queensland, Australia.
Carriage means transport by vehicles, vessels, aircraft, trains and any other conveyance, and includes acts done in furtherance of Carriage by another specific means, whether by road, sea, air or train.
Carrier means any party involved in the carriage of Goods.
COD means cash on delivery.
Company means Across the Ocean Shipping Pty Ltd ACN 162 529 035 and includes its employees, executives, nominees, agents, and sub-agents.
Competition and Consumer Act means the Competition and Consumer Act 2010 (Cth) (as amended from time to time), and any succeeding legislation and any regulations made pursuant to the Competition and Consumer Act.
Consequential Loss means any loss or damage arising from a breach of contract or 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.
Consumer Contract has the same meaning as at section 23(3) of the Australian Consumer Law provided that the contract is a Standard Form Contract and UCT Exceptions do not apply.
Consumer Guarantees means the guarantees defined at Division 1 of Part 3-2 (sections 51 to 59) of the Australian Consumer Law.
(a) The Convention for the Unification of Certain Rules for International Carriage by Air signed at Montreal on 28 May 1999;
(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; and
(c) 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).
Corporations Act means the Corporations Act 2001 (Cth).
CoR means Chain of Responsibility, as it is used in the Heavy Vehicle National Law.
(a) If there is an Authority, the customer names in that Authority and will include employees, officers, agents and contractors of the Customer;
(b) If there is no Authority, the shipper, consignor, the receiver, consignee, owner, bailor or the person for whom the Services are performed; and
(c)the person or corporate entity with whom this contract is made.
Customs Broker means a person or company licenced by the Australian Border Force to operate as a licensed customs broker pursuant to Part XI of the Customs Act.
Customs Broker’s Licence means any licence granted by the ABF to a party to operate as a licensed customs broker pursuant to Part XI of the Customs Act.
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 Advice means any advice, ruling, decision, direction or precedent issued by the ABF or any Government Authority, including, inter alia, Customs Tariff Classification Advice, Valuation Advice, Tariff Precedent or Country of Origin Advice.
Customs Related Law has the same meaning as in Section 4B of the Customs Act.
Dangerous Goods means Goods which are volatile, 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.
Fees means the prices and fees charged by the Company to the Customer for the 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 means the cargo accepted by the Company together with any container, packaging or pallet(s) supplied by or on behalf of the Customer.
Government Authority 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, Transport, Regional Development, Communications and the Arts; the Department of Agriculture, Fisheries and Forestry; the ATO and the Australian Taxation Office.
Government Rulings means any advice, ruling, decision, direction or precedent issued by the ABF or any Government Authority, including, inter alia, Customs Tariff Classification Advice, Valuation Advice, Tariff Precedent or Country of Origin Advice.
GST has the same meaning as defined in 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.
Heavy Vehicle National Law means the road safety regime contained in the Heavy Vehicle National Law Act 2012 (Qld) and related State, Territory and Federal legislation including regulations and amendments.
Infringement Notice means a notice issued by the ABF or other Government Authority, including, inter alia, an infringement notice or penalty notice issued under which a penalty is imposed in lieu of a civil prosecution or criminal charge.
Input Tax Credit has the same meaning as Input Tax Credit under the GST Law.
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 delegated legislation including 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 the ABF or other Government Authority.
Licence Conditions means any conditions attached to any Licence held by the Company.
Load Restraint Guide means the Guidelines and Performance Standards for the Safe Carriage of Load on Road Vehicles, National Transport Commission and Roads and Maritime Services NSW, and includes subsequent versions of the Guide.
OHS Laws means any occupational health and safety legislation, regulations, guidelines standards, codes of conduct or policies.
PPSA means the Personal Property Securities Act 2009 (Cth).
Related Body Corporate has the same meaning as under the Corporations Act.
Reporting Obligations means the obligations of the Company to the ABF or other Government Authority to report the arrival, departure or movement of Goods under the Customs Act or Customs Related Law OR which the Company considers at its sole discretion to be necessary to comply with its Licence Conditions.
RSA means State and Commonwealth Government Authorities responsible for the road safety regulation of heavy vehicles, including, inter alia, the Chain of Responsibility legislation.
Security Interest has the same meaning as under the PPSA.
Sub-contractors means 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.
Service Agreement means these Trading Conditions; the Authority; any customer application for credit with the Company; and any quotation or estimate.
Services means the whole of the operation undertaken by the Company in relation to the Goods, and includes, but is not limited to: the international carriage of the Goods; any advice provided by the Company; customs clearance; quarantine clearance and cleaning, local delivery services; and warehousing and storage services.
Small Business Contract has the same meaning as defined at section 23(4) of the Australian Consumer Law, provided that the contract is a Standard Form Contract and UCT Exemptions do not apply.
Standard Form Contract has the same meaning as defined at section 27 of the Australian Consumer Law.
Supply means the same as in the GST Law.
Taxable Supply means the same as in the GST Law.
Tax Invoice means the same as in the GST Law.
Trading Conditions means these Trading Conditions.
Trailer means any non-automotive and non-powered vehicle designed to be towed by an automotive vehicle on a road.
UCT Exception means contracts described at sections 28 and 28A of the Australian Consumer Law.
VGM means Verified Gross Mass as set out in Chapter VI, Part A, Regulation 2 of SOLAS and given effect in Australian law by Marine Order 42 (Cargo, stowage and securing) 2014 (Order 2014/11).
Voluntary Disclosure means a disclosure made pursuant to sections 243T and/ or 243U of the Customs Act.
(a) These Trading Conditions, the Service Agreement and any collateral agreement or agreements made by the Company with the Customer shall be governed and construed by the laws of either Queensland, Australia or New South Wales, Australia and shall be subject to the exclusive jurisdiction of the courts of those States.
(g) Where any inconsistency may arise between the terms and conditions of the Service Agreement, the documents shall be construed in the following descending order of priority:
(i) these Trading Conditions;
(ii) the Authority;
(iii) any application for credit by the Customer; and
(iv) any quotation provided by the Company.
(h) Reference to any Laws includes any statutory modifications, re-enactments, substitutions or replacements thereof and all Laws issued thereunder.
(i) References to any Convention or any Article of any Convention includes any modification, substitution or replacement thereof.
(ii) Clause 28 applies; and
(iii) The laws in force in the place in which the contract is made apply.
(i)Clause 27 applies; and
(ii)Clause 28 does not apply.
2.1 These Trading Conditions apply to all Services provided by the Company to the Customer and prevail over any terms and conditions provided by the Customer and as contained in any transport document, including bill of lading, air waybill or consignment note.
3. Governing Law and Jurisdiction
3.1 These Trading Conditions and any collateral agreements made by the Company with the Customer shall be governed and construed according to the laws of Victoria, Australia and/ or New South Wales, Australia and shall be subject to the exclusive jurisdiction of the courts of those States.
4. Acceptance of Trading Conditions
4.1 The Customer acknowledges and agrees that it has received and understands these Trading Conditions. By instructing the Company to perform the Services, except to the extent otherwise required under relevant laws, the Customer will be bound by the Trading Conditions of the Company, which shall prevail over any other terms and conditions of the Customer.
5. Not a Common Carrier
5.1 The Company carries on business as a forwarding and logistics agent, and Customs Broker under Part XI of the Customs Act. The Company is not a common carrier and will accept no liability as such. The Company reserves the right to accept or refuse to provide the Services in respect of the Goods at its sole discretion. Except to the extent otherwise required under relevant Laws, all Services provided by the Company are governed solely by these Trading Conditions.
6. Dangerous Goods
6.1 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.
7. Payment and recovery of Fees
7.1 The Company is entitled to retain and be paid all brokerages, commissions, allowances and other remunerations customarily retained by or paid to shipping and forwarding agents and insurance brokers whether declared or otherwise and no such brokerage, commission or allowance or other remuneration shall be payable or allowable to the Customer.
7.2 Quotations as to Fees and other charges are given on the basis of immediate acceptance and subject to the right of withdrawal or revision by the Company. Quotations are valid only for the specified weight and volume ranges quoted and for the designated services and standard of services quoted. If any changes occur in the rates of freight, insurance premiums, warehousing, statutory fees or any other charges applicable to the Goods, quotations and charges are subject to revision accordingly with notice or, if it is not reasonably practicable, without notice to the Customer.
7.3 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.
7.4 The Company shall under no circumstances be precluded from raising a debit in respect of any fee or disbursements lawfully due to it, notwithstanding that a previous debit or debits (whether excluding or partly including the items now sought to be charged) had been raised and whether or not any notice was given that further debits were to follow.
7.5 All amounts due to the Company in Australia are payable in Australian dollars. The Company is entitled to charge a currency conversion premium to cover the expenses incurred by the Company when converting receivables into Australian currency.
7.6 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.
7.7 If any amounts payable or due under any agreement between the Company and the Customer are not made within 7 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 at the rate being 2% above the Cash Rate Target fixed by the Reserve Bank of Australia on the amount outstanding calculated from the due date until payment is made in full, where such liquidated damages are reasonably necessary to protect the Company’s legitimate business interests. The Company may take any legal proceedings to recover amounts owing pursuant to these Trading Conditions.
7.8 The Company reserves the right to offset any amounts receivable from the Customer against any amounts payable to that Customer. This right exists irrespective of the date the liability has been created or debt incurred with the Company.
8. Customer Warranties
8.1 The Customer warrants that it is either the owner or the authorised 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 authorised agent of that person or those persons.
8.2 The Customer warrants that it has complied with all laws and regulations relating to the nature, condition, packaging, handling, storage and carriage of the Goods including but not limited to the provisions of the Load Restraint Guide 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.
8.3 Furthermore, the Customer shall 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. The Customer is responsible for ensuring compliance with the Load Restraint Guide by any employee, agent or contractor loading or packing the Goods either in Australia or at an overseas location.
8.4 The Customer warrants that the information it provides to the Company in relation to the Goods, including the nature, number of packages and weight of the contents of the container is accurate and will indemnify the Company against all loss, damages and expenses arising from inaccuracies in such particulars, including in connection with any prosecution by a relevant authority.
8.5 The Customer warrants that any VGM provided to the Company is accurate and complies with Marine Orders 42 and has been calculated in accordance with an approved method and that the Customer will indemnify the Company against all loss, damages and expenses arising from a failure to supply a VGM obtained by one of the methods approved and in time to be used in vessel planning.
8.6 The Customer warrants that prior to the Company making payments to the ABF for customs duty or GST, that the Customer has verified those amounts and accepted the accuracy of same. The Company shall not be liable for any underpayments of customs duty or GST which are owed by the Customer to the ABF or other Government Authority.
8.7 If a Voluntary Disclosure is deemed necessary by the Company to ensure compliance with the Customs Act, the Customer warrants that it will cooperate with the Company in making such disclosure.
9. Reporting Obligations
9.1 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.
9.2 The Customer further acknowledges and agrees that:
(a) 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;
(c) 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.
10.1 The Company as agent for the Customer may 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.
10.2 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.
11. Chain of Responsibility (CoR)
11.1 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.
11.2 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.
11.3 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, to the extent that the breach has caused loss to the Company.
11.4 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.
12. Notification of Claim
12.1 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.
12.2 If no claim for loss or damage is made within 7 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.
12.3 The Company shall be discharged from all liability whatsoever in connection with the provision of the Services and/or the Goods unless legal proceedings are commenced and served upon the Company within nine (9) 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.
12.4 If no claim for loss or damage is made within 7 days and if the Customer does not bring proceedings in relation to that claim within 9 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, 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.
12.5 This clause 12 does not apply to a claim for breach of the Consumer Guarantees under the Australian Consumer Law, where applicable.
13. Liability and Indemnity
13.1 To the full extent permitted by law, and subject to subclause 28.8 (where it applies), clause 13.4 and clause 13.5, the Goods remain at the risk of the Customer during the Services and the Company, its servants and agents will have no liability whatsoever to the Customer, whether in tort, contract, bailment, or otherwise, unless such is solely caused by, and attributable to, the gross negligence of the Company in provision of the Services, and the Customer shall indemnify the Company in respect of any claims made by third parties concerning the provision of the Services by the Company, in connection with or arising out of, but not limited to:
(a) loss or physical damage to the goods;
(q) any costs or charges incurred by the Company in connection with recovering any amounts due by the Customer to the Company for the Services, including legal costs and the costs of legal proceedings;
13.2 Except as required by law, the Company shall not be responsible in negligence or contract or otherwise for loss, damage, costs, fines or penalties incurred by the Customer or any other person resulting from or arising out of or in connection with any quotation, advice, statement, representation or information given or made by or on behalf of the Company to the Customer or others as to the classification of or any matter material to the valuation of or the liability for or the amount, scale or rate of customs and/or excise duty or other impost, tax or rate charged in respect of the Goods or any cargo whatsoever. In giving or making any such quotation, advice, statement, representation or information the Company relies solely on the particulars provided by the Customer which warrants that those particulars accurately and completely describe all aspects of the Goods or cargo and the transaction(s) relating to the Goods or cargo.
13.3 Where the Customer acquires Services under these Trading Conditions as a consumer within the meaning of the Australian Consumer Law, the Company’s Services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the Services, the Customer is entitled:
(a) to cancel the service contract with the Company; and
(b) to a refund for the unused portion, or to compensation for its reduced value.
The Customer is also entitled to be compensated for any other reasonably foreseeable loss or damage.
If the failure does not amount to a major failure, the Customer is entitled to have problems with the Service rectified in a reasonable time and, if this is not done, to cancel the Customer’s contract and obtain a refund for the unused portion of the contract.
13.4 Where the Consumer Guarantees under the Australian Consumer Law apply to the Services, and the Australian Consumer Law prohibits the Company from excluding the application of, or its liability under the Consumer Guarantees, the Company’s liability will be limited for a breach of a Consumer Guarantee to one or more of the following:
(a) the supplying of the Services again; or
(b) the payment of the cost of having the Services supplied again.
13.5 Any claim made against the Company is limited to the full extent permitted by Law. To the extent that liability of the Company is limited by 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.
13.6 Without limiting the effect of these Trading Conditions, the Customer shall indemnify and keep indemnified the Company for any loss or damage directly or indirectly caused by the Goods or by a breach of these Trading Conditions by the Customer, except to the extent caused or contributed to by the Company.
13.7 Without limiting the effect of these Trading Conditions, the Customer shall indemnify and keep indemnified the Company for the matters listed at clause 13.1(a) – (q) herein.
13.8 The Customer undertakes to indemnify the Company in respect of any liability whatsoever and howsoever arising in connection with the provision of the Services and/or the Goods to any person (other than the Customer) who has or claims to have any interest in the Goods.
13.9 The nature of the indemnity provided by the Customer pursuant to these terms and Conditions shall 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.
13.10 Moreover, 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.
13.11 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 indemnity.
14. Indirect Loss
14.1 Neither the Company nor the Customer shall be liable for any loss suffered by the other party in connection with the Goods or the services that is an indirect or Consequential Loss including:
(a)losses that are purely financial or economic losses;
(b)loss of opportunity;
(d)any other losses whatsoever that do not arise directly from physical damage to or loss of the Goods and are consequential in nature.
15. Indemnity by Customer – claims against employees and contractors etc
15.1 The Customer warrants:
(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 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 15(a), 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.
16. Himalaya Clause
16.1 Every exemption, limitation, condition and liberty in these Trading Conditions and every right, exemption from liability, defence and immunity of whatsoever nature applicable to the Company or to which the Company is entitled in accordance with these Trading Conditions shall also be available and shall extend to protect:
(a) all Subcontractors;
17.1 Insurance for the Goods is the responsibility of the Customer, and the Company will not affect insurance on the Goods, except upon receipt of express instructions provided in writing by the Customer to the Company, and the Customer provides a written declaration as to the value of the Goods.
17.2 Insurance arranged 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. The Customer indemnifies the Company for any and all claims it may have against the insurer or underwriter.
18. Deviation re Method of Services
18.1 The Customer authorises 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.
18.2 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, however its adoption remains at the sole discretion of the Company and the Customer hereby authorises the Company to provide the Services by another method.
18.3 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.
19.1 The Company, its servants or agents shall have a Particular Possessory Lien and a General Possessory Lien on any Goods and documents relating to those Goods, and a right to see the Goods and documents, whether by public or private sale or auction, on 14 days’ notice, for all sums payable by the Customer or the Customer’s principals, servants or agents to the Company, for any and all debts, charges, expenses or other sums due and owing by the Customer or the Customer’s principals, servants or agents, including, inter alia, freight, customs import duty and GST, demurrage, container detention, fines, penalties, salvage, average of any kind, storage, and brokerage fees.
19.2 In addition, all costs and expenses of exercising the Company’s right of lien, including the sale of the Goods and reasonable legal fees, shall be covered by the lien.
19.3 The lien, and all rights granted herein shall survive delivery of the Goods and the Company shall be entitled to retain the proceeds of sale of the Goods in relation to any and all outstanding amounts and debt referred to herein. In the circumstance that the proceeds of sale are not sufficient to cover all amounts payable to the Company, the Company retains the right to recover any deficit from the Customer. The Company acts as principal and not as agent and is not the trustee of the power of sale when the Company sells or otherwise disposes of Goods and any documents.
19.4 From the time the Company, 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, customs import duty and GST, demurrage, container detention, fines, penalties, salvage, average of any kind, storage, and brokerage fees and without limitation 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.
20. Force majeure
20.1 The Company shall not be liable to the Customer for any breach or failure to perform its obligations under these Trading Conditions or for any damage or loss to Goods resulting from one of the following: perils, dangers and accidents of the sea or other navigable waters; act of God; act of war which includes, inter alia, armed conflict, invasion, insurrection, military coup, civil war, violent civil disturbance, embargo and shipping blockade; act of terrorism; act of public enemies; pandemic (including circumstances arising from Covid-19), epidemic or other major public health emergency; arrest or restraint of princes, rulers or people, or seizure under legal process; strikes or lock-outs or stoppage or restraint of labour from whatever cause, whether partial or general; riots, civil commotions or failures of government authorities to provide essential services or infrastructure, which are necessary for the performance of the Services; saving or attempting to save life or property at sea; or any other cause arising beyond the reasonable control of the Company, without the actual fault or privity of the Company and without the actual fault or privity of the agents or servants of the Company.
20.2 If the occurrence of any event contemplated herein 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.
21. Perishable Goods
21.1 Where the Goods are perishable and are not collected or delivered immediately upon arrival or are insufficiently or incorrectly addressed or marked or otherwise not identifiable, they may be sold or otherwise disposed of upon 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. Such notice will not be required where the Company has been directed to immediately dispose of the Goods by a direction of a Government Authority.
22. Goods unable to be Delivered
22.1 Where Goods 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. 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.
23. Sale of Uncollected Goods in Storage
23.1 Where 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. 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.
23.2 If the sale of Goods 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.
23.3 The Company sells or otherwise disposes of such Goods as principal and not as agent and is not trustee of the power of sale.
24. Director’s Guarantee
24.1 At all times if the Customer is a corporate entity under the Corporations Act, the directors and shareholders of that corporate entity will guarantee the Debts, undertake to perform the obligations of the Customer and indemnify and keep indemnified the Company against the Debts.
24.2 The Customer shall ensure that its directors and shareholders will sign any other documents required by the Company to evidence and confirm any guarantee, undertaking and indemnity.
25.1 The Customer acknowledges that the Company shall have a Security Interest which attaches over any Goods, and that the Company may, at the Customer’s cost, register its security interests granted by the Customer under these Trading Conditions, and all the Customer’s present and future rights in relation to the Goods, on the Personal Property Securities Register established under PPSA. The Customer consents to the registration and perfection of the Security Interest under PPSA.
26.1 This clause applies if the Company is or may become liable to pay GST in relation to any Supply under these Trading Conditions.
26.2 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.
26.3 GST is 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.
26.4 The Company shall provide to the Customer a Tax Invoice to enable the Customer to claim an Input Tax Credit.
27. Non-Consumer Contract and Non-Small Business Contract provisions
27.1 This clause 27 only applies where the Service Agreement between the Company and the Customer is not a Consumer Contract nor a Small Business Contract.
27.2 The Customer shall 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 obligations under the Service Agreement without the Customer’s consent.
27.3 Any amendments or variation to the Trading Conditions must be made in writing and duly executed on behalf of the Company.
27.4 The Company, at its discretion, may decide the manner or procedure to be implemented in undertaking the Services for the Customer. That discretion can only be varied by the Company by written instructions from the Customer and acknowledged by the Company in writing, in sufficient time before the performance of the work to reasonably allow the Company to adopt the revised instructions.
27.5 The Company shall have no liability or responsibility by virtue of the fact that there may be a change in the rate of customs duty, GST, 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 however caused.
27.6 Any term in these Trading Conditions which limits the Company’s liability will also extend and apply to any employees, nominees, Sub-contractors and agents, and each of these persons or entities shall be deemed to be a party to these Trading Conditions.
27.7 The Company undertakes that no claim or allegation will be made against the Company’s employees, nominees, Sub-contractors or agents. This release and indemnity operates irrespective of how the claim or allegation arises, including negligence or breach of contract.
27.8 The indemnity provided in subclause 13.7, shall not be affected in any way if such pillage, stealing, loss, damage or destruction has occurred or been brought about wholly or in part by the negligence of the Company.
27.9 Except in relation to any rights the Customer may have in relation to the Consumer Guarantees, 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 shall indemnify all parties against whom the claim or claims are made (including the Company) against any loss or damage that may be suffered.
27.10 In all cases where the liability of the Company has not been excluded (by these Trading Conditions, statute, international Convention or otherwise), the liability of the Company whatsoever and howsoever caused shall be limited to whichever is the lesser between the value of the Goods or AUD200.
27.11 The Company shall not be liable in any event for any Consequential Loss.
28. Consumer Contract or Small Business Contract provisions
28.1 This clause only applies to the extent that the Service Agreement between the Company and the Customer is a Consumer Contract or Small Business Contract.
28.2 Neither the Company or Customer may assign or transfer its or the other party’s rights or obligations under the Service Agreement without the other Party’s prior written consent, which must not be unreasonably withheld.
28.3 No variations or changes to these Trading Conditions shall be valid and binding without the other Party’s written consent, which must not be unreasonably withheld.
28.4 The Company, acting reasonably, reserves 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.
28.5 The Company shall have no liability or responsibility by virtue of the fact that there may be a change in the rate of customs duty, GST, 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.
28.6 Where the Company accepts instructions to deliver on a COD basis, 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.
28.7 Except in relation to any rights the Customer may have in relation to the Consumer Guarantees (in which case clause 13.4 applies), the Company shall not be liable in any event for any Consequential Loss unless the Company had knowledge that such damage might be incurred.
28.8 Clause 13.1 will not apply to the extent that:
(a) The Company directly caused the loss or damage; or
(b) The loss or damage was caused by negligence or wilful default by the Company.