STANDARD TERMS AND CONDITIONS
PART I: General Conditions
1.1 In these Conditions:
(a) "Authority" means a dulyconstituted legal or administrative person, acting within its legal powers andexercising jurisdiction within any nation, state, municipality, port orairport;
(b) "Company" means EXPLORATE PTYLTD, ACN 613 141 941, ABN 34 613 141 941, its servants and agents;
(c) “Conditions” means these Standard Termsand Conditions of the Company;
(d) “Consumer” means an individual whoacquires the Services wholly or predominately for personal, domestic, orhousehold use or consumption
(e) "Container" includes anycontainer, reefer container, flexitank, trailer, transportable tank, flatrack,pallet or any article of transport used to carry or consolidate goods and anyequipment of or connected thereto;
(f) "Customer" means the partyentering into the contract for services with the Company, being the shipper,consignor, receiver, consignee, the owner of the Goods or their authorisedagent;
(g) “Customer Marks” means any registered orunregistered trade marks for, or in relation to, the Customer’s corporate brandand identity.
(h) "Dangerous Goods" includesGoods which are or may become of a dangerous, inflammable, radio-active oroffensive, Goods likely to harbour or encourage vermin or other pests, or Goodswhich may become liable to damage, or injure any person or property in anymanner whatsoever;
(i) "Goods" means the cargoaccepted by the Company together with any Container, packaging, pallet(s), orany other storing device in, on or with which the goods are to be carriedand/or stored whether or not supplied by or on behalf of the Customer;
(j) "Hague-Visby-Rules" means theprovisions of the International Convention for the Unification of certain rulesRelating to Bills of Lading signed at Brussels on 25th August 1924 as amendedby the Visby Protocol of 23rd February 1968 and the SDR Protocol of 21stDecember 1979;
(k) “Heavy Vehicle National Law” means the Heavy Vehicle National Law Act 2012(Qld) as enacted in the Queensland Parliament and adopted by the States andTerritories, including any Regulations made under that Act and any otherlegislation enacted by the Commonwealth, a State or a Territory for the purposeof giving effect to the Heavy Vehicle National Law or the Council of AustralianGovernments' Intergovernmental Agreement on Heavy Vehicle Regulatory Reformdated 25 February 2010.
(l) "Incidental matters" meansanything done or to be done in relation to the Goods or the provision of anyservices ancillary to the Goods including but not limited to moving, storing orleaving the Goods at any warehouse, terminal, yard, wharf or other place orarea, loading or unloading the Goods from any vehicle, vessel or otherconveyance, stowing or packing the Goods or fumigating, transhipping,inspecting or otherwise handling the Goods or anything done in relationthereto;
(m) "Instructions" means astatement of the Customer’s specific requirements;
(n) "Person" includes persons oranybody or bodies corporate;
(o) “Personal Property Securities Act” or “PPSA”means the Personal Property Securities Act 2009 (Cth);
(p) “RSA” means those State and CommonwealthGovernment Authorities in Australia responsible for road safety regulation ofheavy vehicles and Chain of Responsibility legislation and the Heavy VehicleNational Law and the laws governing the carriage of goods by road;
(q) “Services” means the whole of theServices provided by the Company to the Customer and all Incidental Matters tothe provision of Services including but not limited to customs clearance,freight forwarding, packing, unpacking, de-stuffing and deconsolidation, road,rail, sea and air carriage, storage, logistics, warehousing and distributionand break bulk handling of Goods and Containers on behalf of the Customer andany other services provided by the Company;
(r) “Small Business Contract” means astandard form small business contract as defined in section 23(3) of Schedule 2of the Competition and Consumer Act 2010 (Cth);
(s) “Subcontractor” means any person, theirservants or agents who, pursuant to a contract or arrangement with any otherperson (whether or not the Company), provides or agrees to provide the Servicesor any part of the Services and includes subcontractors of the subcontractor;
(t) “VGM” means verified gross mass as setout in Chapter VI, Part A, regulation 2 of SOLAS and given effect in AustralianLaw by Marine Order 42 (Cargo, stowage and securing) 2014 (order 2014/11)
(u) "Montreal Convention" means theConvention for the Unification of Certain Rules Relating to InternationalCarriage by Air dated 28 May 1999 as applied by the legislation of theCommonwealth of Australia.
2.1 In these Conditions, unless the contextotherwise requires:
(a) Headings - The headings of the various sectionsand clauses of these Conditions are for convenience of reference only and shallnot modify, define, expand or limit any of the terms or provisions of these Conditions.
(b) Plurals,Genders, Persons - The singular includes the plural and vice versa. Wordsimporting one gender include every gender. A reference to a person includes acorporation and vice versa.
2.2 A reference to legislation or to a provision oflegislation includes a modification or re-enactment of it, a legislativeprovision substituted for it and a regulation or statutory instrument issuedunder it.
2.3 A reference to conduct includes an omission,statement and undertaking, whether or not in writing.
2.4 A reference to a right or obligation of any twoor more persons confers that right, or imposes that obligation, as the case maybe, jointly and severally.
3.1 Subject to Clause 3.2, all Services of the Company, whether gratuitous ornot, are undertaken subject to these Conditions and not otherwise and
(a) The provisions of Part I shall apply to all suchServices;
(b) The provisions of Part II shall only apply tothe extent that such Services are provided by the Company as agents; and
(c) The provisions of Part III shall only apply tothe extent that such Services are provided by the Company as principals.
3.2 Where a document is issued for the Services by or on behalf of theCompany, and bears the title of, or includes the words, "bill oflading" (whether or not negotiable), or sea or air "waybill",the provisions set out in that document, if inconsistent with these Conditions,shall be paramount and prevail over these Conditions to the extent that suchprovisions are inconsistent but no further.
3.3 These Conditions shall prevail at all time over any terms and conditionsof the Customer.
3.4 Any variation, cancellation or waiver of these Conditions (or any ofthem) must be in writing signed by a Director of the Company. No other personhas or will be given any authority whatsoever to agree to any variation,cancellation or waiver of these Conditions.
4 Provision ofServices
4.1 All Services are provided by the Company asagents only, except in the following circumstances where the Company acts asprincipal:
(a) where the Company performs any carriage,handling or storage of Goods, but only to the extent that the carriage isperformed by the Company itself or its servants and the Goods are in the actualcustody and control of the Company, or
(b) to the extent that the Company expressly agreesin writing to act as a principal, or
(c) to the extent that the Company is held by acompetent court to have acted as a principal.
4.2 The Company is not a common carrier and acceptsno liability as such. The Company reserves the right to accept or refuse the carriageof any Goods or any other Service at its absolute discretion.
5 Obligations ofCustomer
5.1 The Customer warrants that:
(a) the Customer has complied with all applicablelaws and regulations relating to the nature, condition, packaging or carriageand storage of the Goods, and that the Goods are packed in a manner, havingregard to their nature which is adequate to withstand the ordinary risks ofhandling, storage or carriage, the Goods are accurately described in writing,and the Container(s) packaging are fit and proper condition for the Services;
(b) the Customer is either the owner of the Goodsand/or the authorised agent of the person or persons owning or having anyinterest in the Goods or any part thereof and enters into this contract on itsown behalf and/or as authorised agent of that person or persons;
(c) the information it provides to the Company inrelation to the Goods including the nature, number of packages and weight ofthe contents of the container, lifting, lashing and gravitational specifications,and all such matters required for the receipt, loading carriage, unloading,road transport and customs clearance of the Goods is accurate, complete andsufficient;
(d) any VGM provided to the Carrier is accurate andcomplies with Marine Order 42, and Maritime Rules Part 24B (when applicable)has been calculated in accordance with an approved method and that it issupplied in time to be used in vessel planning and that it has complied withall Laws and regulations of any Government Authorities relating to the nature,condition, packaging, handling, storage, weight and Carriage of the Goodsincluding all Laws prescribed by the RSA and the Heavy Vehicle National Law.
(e) The Customer warrants that no claim orallegations will be made against the Company by any person (other than theCustomer or the Customer’s disclosed principal) who is or may subsequently beinterested in the Goods or part of them or the Services;
(f) it shall provide the Company all suchassistance, information and documentation that may be necessary to enable theCompany to comply with applicable law and regulations for the Goods andServices;
(g) the Goods are packed to withstand the ordinaryrisks of handling, storage and carriage having regard to their nature and theanticipated Services to be provided by the Company; and
(h) the description and particulars of the Goods areaccurate, complete and correct.
5.2 The Customer agrees to defend, indemnify andhold harmless the Company for any liability of the Company, losses, expenses,fines, charges or costs including legal costs sustained or incurred as a resultof a breach of the warranties in Clause 5.1.
6 SpecialInstructions, Good and Services
6.1 Unless agreed in writing, following the Customerproviding to the Company a document signed by or on behalf of the Customer,disclosing the type of Dangerous Goods, their UN number and their class, theCustomer shall not deliver to the Company, or cause the Company to deal with orhandle, Dangerous Goods.
6.2 If the Customer is in breach of Clause 6.1:
(a) the Customer shall be liable for any death,injury, loss and/or damage of any nature whatsoever and howsoever arising bythe provision of Services in respect of the Dangerous Goods (whether or notresulting from or arising out of the negligence, breach of contract, whetherfundamental or otherwise, breach of bailment, contravention of any statute, orbreach of statutory duty or wilful act or default of the Company);
(b) further, the Customer shall defend, indemnifyand hold harmless the Company for any liability of the Company, expenses,fines, charges, losses or costs including legal costs sustained; and
(c) the Company (or any other person in whosecustody the Goods may be in at the relevant time) may, at the Company's solediscretion, have the Goods destroyed or otherwise dealt with at the expense ofthe Customer. For the purposes of this sub-clause, notice is not required to begiven to any person of the intention to destroy or otherwise deal with theGoods.
6.3 If the Company agrees to accept Dangerous Goodsand then at any time, it (or any other person) reasonably forms the view thatthose Goods constitute a risk to other goods, property, life or health, it may(without notice and without liability) have the Goods destroyed, disposed of,abandoned or otherwise dealt at the Company’s sole discretion and withoutcompensation to the Customer or owner of the Dangerous Goods.
6.4 The Customer undertakes not to requesttransportation of any Goods which require temperature control withoutpreviously giving written notice of their nature and the particular temperaturerange to be maintained and, in the case of a temperature controlled Containerstuffed by or on behalf of the Customer, the Customer further undertakes that:-
(a) the Container has been properly pre-cooled orpre-heated as appropriate;
(b) the Goods have been properly stuffed and stowedin the Container; and
(c) the Container's thermostatic controls have beenproperly set by the Customer.
6.5 If the requirements of Clause 6.4 are notcomplied with the Company shall not be liable for any loss of or damage to theGoods caused by such non-compliance.
6.6 Unless agreed in writing, the Company shall notbe obliged to make any declaration for the purposes of any statute, conventionor contract as to the nature or value of any Goods or as to any specialinterest in delivery, or to make any declaration as to specific stowagerequirements of any Goods.
6.7 Unless agreed in writing or otherwise providedfor under the provisions of a document signed by the Company, instructionsrelating to the delivery or release of Goods against payment or againstsurrender of a particular document shall be in writing and the Company'sliability shall not exceed that provided for in these conditions at clause 17in respect of misdelivery of Goods.
7.1 The Customer is responsible for insuring thegoods.
8 GeneralIndemnities and Liabilities of the Customer and Owner
8.1 The Customer and owner shall defend, indemnifyand hold harmless the Company for any liability of the Company expenses, fines,charges, losses or costs including legal costs sustained or incurred howsoeverarising:
(a) from the nature of the Goods, other than to theextent caused by the Company's negligence,
(b) out of the Company acting in accordance with theCustomer's or owner's instructions, or
(c) from a breach of warranty or obligation by theCustomer or arising from the negligence of the Customer or owner.
8.2 Except to the extent caused by the Company'snegligence, the Customer and owner shall be liable for and shall defend,indemnify and hold harmless the Company in respect of all duties, taxes,imposts, levies, deposits and outlays whatsoever levied by any Authority andfor all payments, fines, costs (including legal costs and disbursements),expenses, loss and damage whatsoever incurred or sustained by the Company inconnection therewith.
8.3 Advice and information, in whatever form it maybe given, is provided by the Company for the Customer only and the Customershall defend, indemnify and hold harmless the Company for all liability, loss,damage, costs including legal costs and expenses arising out of any otherperson relying on such advice or information.
8.4 The Customer shall be liable for the loss,damage, contamination, soiling, detention or demurrage before, during and afterthe Carriage of property of:
(a) the Company (including, but not limited to,Containers);
(b) the Company's servants, sub-contractors oragents;
(c) independent contractors engaged by the Companyfor performance of part or all of the Services;
(d) any person; or
(e) any vessel,
causedby the Customer or owner or any person acting on behalf of either of them orfor which the Customer is otherwise responsible.
8.5 Instructions to collect payment of freight ondelivery in cash or otherwise are accepted by the Company upon and on thecondition that the Company will exercise of reasonable diligence and care onlyin relation to the collection of the freight. Unless express writteninstructions are received that the Goods are not to be delivered withoutpayment, the Company is not liable to the Customer or any person claimingthrough the Customer for any loss or damage to the Goods or consequential loss(including loss of profits, loss of market, loss of chance, loss of production,expenses incurred and reliance damages), howsoever caused (including but notlimited to liability arising from negligence, breach of contract, whetherfundamental or otherwise), if, upon delivery of the goods, payment of freightis not made.
9 Subcontractorsand Himalaya Clause
9.1 The Customer authorises the Company (if itshould think fit to do so) to subcontract on any terms the whole or any part ofthe Services. Such authorisation extends to any Subcontractor andsub-subcontractor.
9.2 The Customer undertakes:
(a) that no claim will be made whether by theCustomer or any other person who is or may subsequently be interested in theServices and/or the Goods against any servant, sub-contractor or agent of theCompany which imposes or attempts to impose upon any of them any liabilitywhatsoever and howsoever caused; and
(b) if any such claim should nevertheless be made,the Customer undertakes to indemnify the Company and the Subcontractor againstany liability of the Company or Subcontractor, expenses, fines, charges orlosses including legal costs sustained or incurred as a result of the breach ofthe undertaking in clause 9.2(a).
9.3 Every servant, Subcontractor, sub-subcontractoror agent of the Company shall have the benefit of all provisions herein as ifsuch provisions were expressly for their benefit. In entering into thiscontract, the Company, does so not only on its behalf, but as agent and trusteefor such servants, Subcontractors, sub-subcontractor and agents and each ofthem shall to this extent be or be deemed to be parties to the contract.
10.1 The charges of the Company for providing theServices or any part of them shall be earned as soon as the Goods are deliveredto the Company and under no circumstances shall any of those charges berefunded. The Customer is and remains responsible for all of the Company’scharges whether or not the Goods are delivered lost, damaged, or destroyedand/or whether or not the Services are performed.
10.2 The Customer shall pay to the Company all sumsimmediately when due without deduction or deferment on account of any claim,counterclaim or any set-off whatsoever.
10.3 When the Company is instructed to collectfreight, duties, charges or other expenses from any person other than theCustomer, or make payment to any third party of any invoices or charges onbehalf of the Customer, the Customer:
(a) shall remain responsible for these amounts; and
(b) shall indemnify and pay these amounts to theCompany on demand where these amounts have become due and have not been paid bysuch other person.
10.4 On all amounts overdue to the Company by theCustomer, the Company shall be entitled to charge interest on the unpaidamount. Such interest to be calculated at 4 per cent above the base interestrate of the Company's bank applicable during the periods that such amounts areoverdue.
11.1 Words and expressions used in this clause 11which have a defined meaning in the A New Tax System (Goods and Services Tax)Act 1999 (Cth) (GST Act), have the same meaning in this clause as in the GSTAct. Unless expressly stated otherwise, all consideration to be provided underthis contract is expressed as exclusive of GST. If GST is payable by a supplier on any supply made under this contract,the recipient will, upon receiving a tax invoice from the supplier, pay to thesupplier an amount equal to the GST payable on the supply without deduction orset off.
12 Liberties andRights of the Company
12.1 Unless otherwise agreed in writing, the Companyshall be entitled to enter into contracts on behalf of itself or the Customerand without notice to the Customer:
(a) for the carriage of Goods by any route, means orperson,
(b) for the carriage of Goods of any description,whether containerised or not, on or under the deck of any vessel,
(c) for the storage, packing, transhipment, loading,unloading or handling of Goods by any person at any place whether on shore orafloat and for any length of time,
(d) for the carriage or storage of Goods incontainers or with other goods of whatever nature,
(e) for the performance of its own obligations, andto do such acts as the Company reasonably considers may be necessary orincidental to the performance of the Company's obligations.
12.2 The Company shall be entitled (without incurringany additional liability), but shall be under no obligation, to depart from theCustomer's instructions in any respect if the Company considers there is goodreason to do so in the Customer's interest.
12.3 The Company may at any time comply with theorders or recommendations given by any Authority. The responsibility andliability of the Company in respect of the Goods shall cease on the delivery orother disposition of the Goods in accordance with such orders orrecommendations.
12.4 The Company shall be entitled, but under noobligation, at any time and from time to time to inspect the Goods and for thispurpose to open or remove any Containers.
12.5 If at any time the Company reasonably considersthat the carriage of the Goods should not be undertaken or continued or onlycontinued after effecting any necessary incidental matters or incurringadditional expense or risk, the Company shall be entitled to:
(a) abandon the carriage of such Goods or to effectsuch additional incidental matters and incur such additional expense, as may bereasonably necessary in order to enable the carriage to be effected or furthereffected; and
(b) be reimbursed by the Customer for the cost ofall such additional incidental matters and all such additional expenseincurred.
12.6 If the Company (or any person whose services theCompany makes use of) considers:
(a) the performance of the Company's obligations arelikely to be effected by any hindrance, risk, delay, difficulty or disadvantagewhatsoever; and
(b) the hindrance, risk, delay, difficulty ordisadvantage cannot be avoided by reasonable endeavours of the Company or suchother person, the Company may (upon giving notice in writing to the Customer orowner) treat the performance of its obligations as terminated and may, at theCustomer's expense, place the Goods or any part of them at the Customer's orowner's disposal at any place which the Company deems safe and convenient.
12.7 The notice in writing referred to in Clause 12.6is not required where it is not reasonably practical to give such notice.
12.8 Where the Company exercises its rights andobligations under Clause 12.6, responsibility and liability of the Company inrespect of the Goods shall thereupon cease absolutely.
12.9 Where the Company (or any person whose servicesthe Company makes use of) is entitled to call upon the Customer or owner totake delivery of the Goods at a designated time and place and delivery of theGoods, or any part thereof, is not taken by the Customer or owner at thedesignated time and place the Company (or such other person) shall be entitledto store the Goods in the open or under cover at the sole risk and expense ofthe Customer.
12.10 Notwithstanding Clauses 12.6 to 12.9, theCompany shall be entitled (but under no obligation) without any responsibilityor liability to the Customer and owner, to sell or dispose of all Goods which the Company considers cannotbe delivered as instructed and/or which have perished, deteriorated or altered,or are in immediate prospect of doing so in a manner which has caused (or maybe reasonably expected to cause) loss or damage to any person or property or tocontravene applicable regulations, without notice to the Customer.
12.11 Where the Company sells or disposes of Goodspursuant to Clause 12.10 the Customer shall be responsible for any costs andexpenses of the sale or disposal.
12.12 The Company shall be entitled to retain and bepaid all brokerages, commissions, allowances and other remunerationscustomarily retained by or paid to freight forwarders without notice to theCustomer and shall not be obligated to disclose either the fact that suchrenumerations have been received or the amount of the same.
12.13 The Company shall have the right to enforceagainst the owner and the Customer jointly and severally any liability of theCustomer under these Conditions or to recover from them any sums to be paid bythe Customer which upon demand have not been paid.
12.14 The method or methods of undertaking theServices shall be at the sole discretion of the Company, and the Customerhereby authorises the Company to adopt any method or methods other than anymethod which may have been instructed or agreed.
13.1 The Customer authorises any deviation from theusual manner in which the Services are provided which may in the absolutediscretion of the Company be deemed reasonable or necessary in thecircumstances.
13.2 If the Customer expressly or impliedly instructsthe Company to use or it is expressly or impliedly agreed that the Company willuse a particular method of providing the Services, the Company will givepriority to that method but its adoption remains at the sole discretion of theCompany and the Customer authorises the Company to provide the Services byanother method.
14 Lien and SecurityInterest
14.1 If on demand any person fails to pay charges dueto the Company in respect of Services rendered by the Company, the Companyshall have a particular and general lien over the Goods and/or any other cargoand/or documents and/or items the property of the Customer, and may sell all orany part of the Goods and/or any other cargo or items the property of the Customerby public auction or private treaty without notice to the Customer and out ofthe moneys arising from the sale retain the charges so payable together withall charges and expenses of the detention and sale, and shall render thesurplus if any of the moneys arising from the sale and such of the goods asremain unsold to the person entitled thereto. In addition, the lien shall cover the costs and expenses of exercisingthe lien and of such a sale including reasonable legal costs.
14.2 Without limitation to other rights of theCompany, from the time the Goods are in possession of the Company or asubcontractor, the Goods are subject to a continuing security interest infavour of the Company for payment of all amounts due and owing by the Customerunder these Conditions. To the extent permitted by law, the Customer and theCompany agree pursuant to section 115 of the PPSA to contract out of sections96 and 120 of the PPSA and that the Customer irrevocably waives any right ithas to receive notices under sections 95, 118, 121(4), 124(4), 125, 130,132(3)(d), 132(4), and 135 of the PPSA, redeem the Goods under section 142 ofthe PPSA, reinstate these Conditions under section 143 of the PPSA and receivea verification statement under section 157 of the PPSA. The Customer will notgrant a security interest to another person, or allow any encumbrance to arise,in respect of the Goods.
14.3 Nothing in this clause 14 shall be deemed as anelection by the Company as to its lien or security rights. The Company mayexercise either common law or statutory rights at its sole discretion.
15.1 If a Container has not been packed or stuffed bythe Company, the Company shall not be liable for loss of or damage to thecontents if caused by:
(a) the manner in which the Container has beenpacked or stuffed,
(b) the unsuitability of the contents for carriagein Containers, unless the Company has approved the suitability,
(c) the unsuitability or defective condition of theContainer, provided that where the Container has been supplied by or on behalfof the Company this paragraph (c) shall only apply if the unsuitability ordefective condition arose:
(i) without any negligence on the part of the Company;or
(ii) would have been apparent upon reasonableinspection by the Customer or owner or person acting on behalf of either ofthem;
(d) the fact that the Container is not sealed at thecommencement of the Carriage, except where the Company has agreed to seal theContainer.
15.2 The Customer shall defend, indemnify and holdharmless the Company for any liability of the Company expenses, fines, charges,losses or costs including legal costs sustained or incurred arising from one ormore of the matters referred to in Clause 15.1.
15.3 Where the Company is instructed to provide aContainer, in the absence of a written request to the contrary, the Company isnot under an obligation to provide a Container of any particular type orquality.
15.4 TheCustomer agrees to indemnify the Company for any container demurrage, containerdetention and claims for container damage or container cleaning charges inrespect of containers that carry the Goods.
15.5 TheCustomer shall indemnify the Company against any claim, liability or expense,including detention or demurrage charges, which arise as a result of:
(a) afailure to return the Container;
(b) a delayin the return of the Container beyond the free time provided by the relevantcarrier, or
(c) anydamage to the container; and/or
(d) the Containerbeing returned in a dirty or contaminated condition.
15.6 TheCustomer shall indemnify the Company against any claim, liability or expensewhich arises as a result of delay in loading or unloading of the Customer’sGoods, or any waiting time, detention or demurrage for any truck or any otherconveyance whatsoever.
16 General Liability
16.1 The Goods shall at all times be at the risk ofthe Customer and the Company shall not be liable in tort (includingnegligence), contract, bailment, contravention of any statute or breach ofstatutory duty or otherwise for any loss of or damage to or failure to deliveror delay in delivery or misdelivery of the Goods or documentation whatsoeverhowsoever caused.
16.2 The Company is not liable for any loss sufferedby the Customer in connection with the Goods or the Services that is aconsequential or indirect loss, including:
(a) losses that are purely financial or economiclosses;
(b) loss of opportunity;
(c) losses in connection with contracts, agreementsor understandings the Customer has with third parties;
(d) loss of market;
(e) any other losses whatsoever that do not arisedirectly from physical damage to or loss of the Goods and are consequential innature.
16.3 The exclusion of liability in clauses 16.1 and16.2 extends to include not only loss of or damage to the Goods themselves, butloss, damage or injury to any person, property or thing damaged arising fromthe Company providing the Services under this contract and to any indirect orconsequential loss arising from such loss, damage or injury or from failure todeliver, delay in delivery or misdelivery of Goods or documentation.
16.4 The Company does not exclude or limit theapplication of any laws, including Schedule 2 of the Competition and Consumer Act 2010 (Cth), where to do so wouldcontravene those laws or cause any part of these Conditions to be void.
16.5 The Company excludes from these Conditions, allconditions, warranties, terms and consumer guarantees implied by laws, generallaw or custom except any the exclusion of which would contravene any laws orcause this condition to be void (‘Non-Excludable Condition’).
17 Amount ofCompensation
17.1 Notwithstanding any other provision in theseConditions and subject always to clause 16, if any liability whatsoever,howsoever arising is found to attach to the Company, or any Subcontractor, theliability of the Company and the Subcontractor shall not exceed the following:
(a) in respect of all claims whichever is the lesser of:
(i) the value of the Goods,
(ii) the equivalent of US$2.00 per gross kilogram ofthe Goods lost or damaged in the currency of the loss or damage, (the exchangerate to apply being the rate as at the date of the delivery of the Goods) lost,damaged, misdirected, misdelivered or in respect of which a claim arises or
(iii) $AUD2,000 per incident.
17.2 For the purposes of clause 17.1(i), the value ofthe Goods shall be calculated by reference to the invoice value of the Goodsplus freight and insurance if paid. If there be no invoice value for the Goods,the value of the Goods for the purposes of clause 17.1(i) shall be calculatedby reference to the value of such Goods at the place and time when they weredelivered to the Customer or owner or should have been so delivered. The valueof the Goods shall be fixed according to the current market price, or, if therebe no commodity exchange price or current market price, by reference to thenormal value of goods of the same kind and quality.
17.3 Unless agreed in writing prior to receipt, theCompany will not accept or deal with bullion, coin, precious stone, jewellery,antiques, works of art or other valuable Goods. Should any Customernevertheless deliver any such Goods to the Company or cause the Company tohandle or deal with any such Goods other than in accordance with prior writtenagreement, the Company shall be under no liability whatsoever for or inconnection with such Goods whatsoever howsoever caused (including but not limited to liability arisingfrom negligence, breach of contract, whether fundamental or otherwise,breach of bailment, contravention of any statute, or breach of statutory duty).
17.4 Notwithstanding any other provision in theseConditions, but subject always to clause 16, if any liability whatsoever,howsoever arising, is found to attach to the Company or any Sub-contractor, forbreach of a Non-Excludable Condition, or guarantee, the Company’ liabilityshall be limited to the lesser of:
(a) in the case of Services supplied under thiscontract:
(i) the supplying of the Services again; or
(ii) the payment of the cost of supplying theServices again; or.
(iii) the amount of AUD$2,000.00.
(b) in the case of supply of Goods under thiscontract:
(i) the replacement of the goods or the supply ofequivalent goods;
(ii) the repair of the goods;
(iii) the payment of the cost of replacing the goodsor of acquiring equivalent goods;
(iv) the payment of the cost of having the goodsrepaired; or
(c) the amount of AUD$2,000.00.
17.5 All the rights, immunities and limitations ofliability in these Conditions shall continue to have full force and effectnotwithstanding any breach of this contract by the Company or any other personentitled to the benefit of such provisions which are severable to the extentthat they are invalid or unenforceable.
18 Notice of Loss,Time bar
18.1 The Company shall be discharged of all liabilitywhatsoever in connection with this contract, the Services and/or the Goodsunless:
(a) notice of any claim is received by the Companyor its agent in writing within 14 days after the date specified in Clause 18.2,and
(b) suit is brought in the proper forum and writtennotice thereof is received by the Company within 9 months after the datespecified in Clause 18.2.
18.2 For the purposes of Clause 18.1, the applicabledates are:
(a) in the case of loss or damage to Goods, the dateof delivery of the Goods,
(b) in the case of delay or non-delivery of theGoods, the date that the Goods should have been delivered,
(c) in any other case, the event giving rise to theclaim.
19 General Average
19.1 The Customer shall defend, indemnify and holdharmless the Company for any liability of the Company, expenses, fines,charges, losses or costs including legal costs sustained or incurred as aresult of a general average incident, including any claims or demands forgeneral average security which may be made on the Company, and the Customershall forthwith provide such security as may be required by the Company In theamount requested by the party that declared general average.
(a) Anynotice to be given by the Company to the Customer shall be sufficiently givenif sent by prepaid ordinary post to that address and shall be deemed to bedelivered the day after the date of postage.
21.1 TheCustomer of Goods which are or are to be warehoused or stored shall notify theCompany in writing of an address to which the Company may forward any notice tothe Customer, and shall promptly notify the Company in writing of any change ofsuch address.
21.2 TheCustomer shall pay the Company’s storage and other charges calculated inaccordance with the Company’s schedule of charges from time to time current andpayable in respect of the Goods. All charges shall be payable monthly inadvance.
21.3 TheCustomer shall indemnify the Company against any loss, duties, payments, costsor expenses relating to the Goods for which the Company may become liable oragree to pay other than the Company’s costs relating to the storage of theGoods or the cost of any Subcontractor engaged by the Company for that purpose.
21.4 TheCompany is authorised to store the Goods in any place, store or warehouse andto remove the Goods from one place, store or warehouse to another without costto the Consignor.
21.5 Ifthe Goods are stored at the option or convenience of the Company, the Goodsshall be removed from storage and all charges in relation to the Goods paid bythe Customer 5 working days after the receiving a notice from the Company toremove the Goods. This notice may be given at any time by the Company to theCustomer and in default of compliance with such notice, the Company may(without prejudice to any other rights or obligations which it may have underthis Contract or otherwise at law) sell all or any of the Goods by publicauction or private treaty and apply the net proceeds in satisfaction of anyamount owing by the Customer to the Company.
22.1 TheCompany is authorised to deliver the Goods at any address nominated by theCustomer.
22.2 TheCompany shall not be bound to deliver the Goods except to the receiver shown onthe consignment note or to such other persons as may be authorised in writingby the Customer to receive the Goods.
22.3 Ifthe Company is unable to deliver the Goods for any reason (including failure onthe part of the receiver to take delivery within a reasonable time) the Companyshall be entitled to handle and store the Goods in such manner as it may in itsdiscretion determine and shall be entitled to make a reasonable charge inrespect of such handling and/or storage and subsequent delivery of theGoods. The Company shall also charge forany delay in excess of 60 minutes commencing upon the Carrier’s driverreporting as being ready to load or unload the Goods.
23 Governing Law andJurisdiction
23.1 These Conditions, the contract, and any claim ordispute arising out of or in connection with the Services of the Company shallbe subject to the law of the State of Queensland.
23.2 The Courts of the State of Queensland, shallhave non-exclusive jurisdiction to hear and determine any dispute arising fromor in connection with these Conditions, the contract, and/or the provision ofthe Services.
24 Conditions andSeverability
24.1 All the rights, immunities and exclusions fromor limitations of liability in these Conditions shall continue to have theirfull force and effect in all circumstances and notwithstanding any breach,whether fundamental or otherwise of this contract, or of these Conditions bythe Company, or breach of bailment, contravention of any statute, or breach ofstatutory duty or any other person entitled to the benefit of such provisions.
24.2 The provisions of these Conditions shall beseverable and it is agreed that if any provision or any party of any provisionof these Conditions is held to be invalid, void or unenforceable, such holdingshall not affect any other provision or any other party of such provision ofthese Conditions.
25 Entire Agreement
25.1 TheseConditions constitute the entire agreement of the Company and the Customerrelating to the Goods and Services, and these Conditions supersede all priorunderstandings, negotiations, agreements written or oral, express or implied inrelation thereto.
25.2 Unlessotherwise agreed in writing between the Company and the Customer, theseConditions are the only Conditions applicable to the supply of Services by theCompany to the Customer.
25.3 AllServices supplied by the Company of the Customer are subject only to theseConditions which shall prevail at all times over any terms and conditions ofthe Customer.
26 Force Majeure
26.1 The Company shall not be liable for failure tofulfil its obligations under this contract where such failure is due to force majeure which, for the purposes ofthese Conditions is, but is not limited to, government or legislative actions,embargoes, strikes, industrial disputes or actions, riots, civil commotion,insurrections, blockades, war, acts of God, fire, flood, lock-outs, publichealth emergencies, disease, epidemics and pandemics (including events relatedto the SARS-CoV-2 virus and COVID-19 disease) or any other cause beyond thereasonable control of the Company.
27 Customs andExcise Other Charges
27.1 All customs and/or excise duties, costs, finesor penalties, which the Company becomes liable to pay for any reason whatsoeverin respect of the Goods and any documentation relating to the Goods pursuant toany applicable laws or regulations shall be paid by the Customer.
28 Small BusinessContracts
28.1 If the Customer is a Consumer, or theseConditions qualify as a Small Business Contract:
(a) Clause 5.2 is modified so that the Customer is not required toindemnify the Company to the extent that the loss or damage was directly causedby, or in connection with, a grossly negligent, unlawful, or wilful act oromission by the Company or its employees, agents and subcontractors.
(b) Clause 6.2(b) is modified so that the Customer is not required toindemnify the Company to the extent that the loss or damage was directly causedby, or in connection with, a grossly negligent, unlawful, or wilful act or omissionby the Company or its employees, agents and subcontractors.
(c) Clause 8.1 is modified so that the Customer is not required toindemnify the Company to the extent that the loss or damage was directly causedby, or in connection with, a grossly negligent, unlawful, or wilful act oromission by the Company or its employees, agents and subcontractors.
(d) Clause 8.3 is modified so that the Customer is not required toindemnify the Company to the extent that the loss or damage was directly causedby, or in connection with, a grossly negligent, unlawful, or wilful act oromission by the Company or its employees, agents and subcontractors.
(e) Clause 9 is modified, so that the Customer:
(i) may make a claim against or impose liability upon anysubcontractor; and
(ii) is not required to indemnify the Company from and against anyloss, to the extent that the claim, liability or loss was directly caused by,or in connection with, a grossly negligent, unlawful, or wilful act or omissionby the subcontractor.
(f) Clause 14.1 is modified so that the Company may only exercise itsright of sale under a lien over Goods after the Company has given 21 days'notice in writing to the Customer of its intention to do so.
(g) Clause 15.2 is modified so that the Customer is not required toindemnify the Company to the extent that the loss or damage was directly causedby, or in connection with, a grossly negligent, unlawful, or wilful act oromission by the Company or its employees, agents and subcontractors.
(h) Clause 18 does not apply, and without limitation to any otherclause in these Conditions, the Company will be discharged from liability inrelation to any claim:
(i) where the loss to the Customer results from the act of asubcontractor; and
(A) the Company’s right to make a claim against that subcontractor issubject to time limitations; and
(B) the Customer does not make its claim against the Company within aperiod reasonably sufficient to allow the Company to make a corresponding claimagainst the Subcontractor within any applicable time limitation period, or
(ii) in all other cases, where the Customer does not make its claimwithin 1 year from the earlier of the delivery of the Goods, if the Goods arenot delivered, the date the Goods should have been delivered or where the claimdoes not relate to loss or damage to Goods, the time of the event giving riseto the claim.
(i) Clause 21.3 is modified so that the Customer is not required toindemnify the Company to the extent that the loss or damage was directly causedby, or in connection with, a grossly negligent, unlawful, or wilful act oromission by the Company or its employees, agents and subcontractors.
PART II: Company As Agent
29 Special Liabilityand Indemnity Conditions
29.1 To the extent that the Company acts as an agent,the Company does not make or purport to make any contract with the Customer forthe carriage, storage or handling of the Goods nor for any other physicalservice in relation to them and acts solely on behalf of the Customer insecuring such services by establishing contracts with third parties so thatdirect contractual relationships are established between the Customer and suchthird parties.
29.2 The Company shall not be liable for the acts andomissions of third parties referred to in Clause 29.1.
29.3 The Company, when acting as an agent, has theauthority of the Customer to enter into contracts on the Customer's behalf andto do acts which bind the Customer in all respects notwithstanding anydeparture from the Customer's instructions.
29.4 Except to the extent caused by the Company'snegligence, the Customer shall defend, Company for any liability of theCompany, losses, expenses, fines, charges or costs including legal costssustained or incurred arising out of any contracts made in the procurement ofthe Customer's requirements in accordance with Clause 30.1.
30 Choice of Rates
30.1 Where there is a choice of rates according tothe extent or degree of liability assumed by persons carrying, storing, orhandling the Goods, no declaration of value (where available) will be made bythe Company unless previously agreed in writing between the Customer and theCompany.
PART III: Company as Principal
31 Special LiabilityConditions
31.1 Where the Company contracts as principal for theperformance of the Customer's instructions, the Company undertakes to perform,or in its own name to procure, the performance of the Customer's instructionsand, subject to the provisions of these Conditions (in particular thelimitation of liability in clause 17), shall be liable for the loss of ordamage to the Goods occurring from the time that the Goods are taken into itscharge until the time of delivery.
(a) the Company contracts as a principal andsub-contracts the performance of the Company's services; and
(b) it can be proved that the loss of or damage toor in respect of the Goods arose or was caused whilst the Goods were in thecare or custody of the Subcontractor;
the Company shall have the full benefit of all rights,limitations and exclusions of liability available to the Subcontractor in thecontract between the Company and the Subcontractor and in any law, statute orregulation and the liability of the Company shall not exceed the amountrecovered, if any, by the Company from the Subcontractor.
31.3 Notwithstanding other provisions in theseConditions, if it can be proved where the loss of or damage to the Goodsoccurred, the Company's liability shall be determined by the provisionscontained in any international convention or national law, the provisions ofwhich: (a) cannot be departed from by private contract, to the detriment of theclaimant, and (b) would have applied if the claimant had made a separate anddirect contract with the actual provider of the particular service in respectof that service or stage of carriage where the loss or damage occurred andreceived as evidence thereof any particular document which must be issued ifsuch international convention or national law shall apply.
31.4 Notwithstanding other provisions in theseConditions, if it can be proved that the loss of or damage to the Goodsoccurred at sea or on inland waterways and the provisions of Clause 31.2 do notapply, the Company's liability shall be determined by the Hague-Visby Rules.
31.5 Notwithstanding the provisions of Clauses 31.2,31.3 and 31.4, if the loss of or damage to the Goods occurred at sea or on inlandwaterways, and the owner, charterer or operator of the carrying vessel isentitled to limit its liability at law and establishes a limited fund, theliability of the Company shall be limited to the proportion of such limitationfund as is allocated to the Goods.
31.6 In the event of any inconsistency between theseConditions and the conditions of any Bill of Lading, Sea Waybill or Air Waybillissued by or on behalf of the Company as Principal, the conditions of any suchBill of Lading. Sea Waybill or Air Waybill shall prevail to the extent of suchinconsistency but no further.
32 Both-to-BlameCollision Clause
32.1 The Both-to-Blame Collision Clause asrecommended by BIMCO as at the time of the provision of Services isincorporated into and forms part of these Conditions.
33 USA and/or Canadaand Additional Responsibility Clause
33.1 With respect to transportation within the USA orCanada, the responsibility of the Company shall be to procure transportation bycarriers (one or more) and such transportation shall be subject to suchcarrier's contracts and tariffs and any law compulsorily applicable.
33.2 If and to the extent that the provisions of theHarter Act of the USA 1893 would otherwise be compulsorily applicable toregulate the Company's responsibility for the Goods during any period prior toloading on or after discharge from the vessel on which the Goods are to be orhave been carried, the Company's responsibility shall instead be determined bythese Conditions. If such provisions are found to be invalid suchresponsibility shall be determined by the provisions in the Carriage of Goodsby Sea Act 1936.
33.3 If and to the extent that the provisions of theRegulations made pursuant to the Carriage of Goods by Sea Act 1991 (as amended)of the Commonwealth of Australia (or any amendments to such Regulations) wouldotherwise be compulsorily applicable to regulate the Company's responsibilityfor the Goods during any period prior to loading on or after discharge from thevessel on which the Goods are to be or have been carried, the Company'sresponsibility shall be determined by these Conditions. If such provisions arefound to be invalid such responsibility shall be determined by the provisionsof the said Carriage of Goods by Sea Act.
33.4 If the Hamburg Rules should be held to becompulsorily applicable to any carriage of goods by sea undertaken by theCompany as principal, these Conditions shall be read subject to the provisionsof the Hamburg Rules and any term of these Conditions that is repugnant to theHamburg Rules shall be void to the extent of such repugnancy but no further.
34 Air Carriage
34.1 Where the Company acts as a principal in respectof a carriage of Goods by air, the following notice is hereby given: If thecarriage involves an ultimate destination or stop in a country other than thecountry of departure, the Montreal Convention may be applicable and therelevant Convention governs and, in most cases, limits the liability ofcarriers in respect of loss of or damage to Goods. Agreed stopping places arethose places (other than the places of departure and destination) shown underrequested routing and/or those places shown in carrier's timetables asscheduled stopping places for the route. The address of the first carrier isthe airport of departure.
34.2 Notwithstanding any other provision of theseConditions, where the Company acts as a principal in respect of a carriage ofGoods by air, the Company's liability in respect of loss of or damage to suchGoods shall be determined in accordance with the Montreal Convention asapplicable.