GLOBAL FREIGHT SERVICES PTY LTD ABN: 70057730837 (the Company)

These contractual conditions apply to all services provided by GLOBAL FREIGHT SERVICES PTY LTD ABN: 70057730837 (the Company).

These Trading Conditions include provisions that entirely change, reduce or exclude rights that you (the Customer) mightotherwise have.

1.1          Definitions

In these Trading Conditions, the following defined termswill have the following defined meanings:

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

ABN means the Australian Business Number of theCustomer pursuant to the GST Law;

Airfreight Convention means either:

(a)           the Convention for the Unification of Certain Rulesfor International Carriage by Air signed at Montrealon 28 May 1999; or

(b)           the Convention for the Unification of Certain Rulesrelating to International Carriage by Air, signed at Warsaw on 12 October 1929; either unamended oramended by the Hague Protocol 1955; at GuatemalaCity 1971, by the additional Protocol No 3 ofMontreal 1975 and/or by the additional Protocol No.4 of Montreal 1975;

whichever may be applicable;

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

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

ATO means the Australian Taxation Office;

Authority means the authority and acknowledgement bywhich the Customer appointed the Company to act on itsbehalf on the terms of the Authority and on the terms ofthese Trading Conditionsand as required under section 181 of the Customs Act;

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

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

Business Day means any day that is not a Saturday orSunday on which banks are open for general banking business in Melbourne, Victoria;

Carbon Costsmeans the net increased cost of providingthe Services resulting from the coming into force of CarbonLegislation as a result of:

(a)           direct emissions associated with the Services coveredby Carbon Legislation, taking into account anyCarbon Credits;

(b)           indirect emissions from electricity generation takinginto account any Carbon Credits; and

(c)           indirect emissions from sources other thanelectricity;

Carbon Credit means assistance provided to entitiesengaged in emissions-intensive trade activities in the formof free or discounted allocation of carbon units or such otherform of assistance as determined by the Commonwealth ofAustralia;

Carbon Legislationmeans any existing or future law or regulation or any other statutory requirement or action intended to regulate, reduce or tax greenhouse gas emissions, including any emissions trading scheme, carbon pollution reduction scheme or carbon emissions tax;

Carriage means carriage by vehicles and conveyances ofall kind including acts in furtherance of an act of carriage byanother or a specific means, whether by air, sea or landtransport;

Carrier means any party involved in the carriage ofGoods whether by airfreight, seafreight or land transport;

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

COD means cash on delivery;

Company means GLOBAL FREIGHT SERVICES PTY LTD ABN: 70057730837 (the Company) as holder of Customs Brokers Licence number [01165C] and the nominees, agents, sub-agents and employees of theCompany;

Competition and Consumer Act means the Competitionand Consumer Act 2010 (Cth);

Consequential Loss means any loss or damage arisingfrom a breach of contract or agreement (including breach ofthe Service Agreement), tort, or any other basis in law orequity including, but without limitation to, loss of profits,loss of revenue, loss of production, loss or denial ofopportunity, loss of access to markets, loss of goodwill,indirect or remote or unforeseeable loss, loss of businessreputation, future reputation or publicity, or any similar losswhich was not contemplated by the parties at the time ofentering the Service Agreement;

Consumer Contract means a contract between theCompany and the Customer for a supply of Services to aCustomer that is an individual whose acquisition of theServices is wholly or predominantly for personal, domesticor household use or consumption, in the manner provided for under the Competition and Consumer Act;

Corporations Act means the Corporations Act 2001(Cth);

 

 

Customer means:

(a)           if there is an Authority, the customer named in theAuthority and will include all employees, officers,agents and contractors of the Customer; or

(b)           if there is no Authority, the shipper, consignor, the receiver, the consignee the owner of the Goods, the bailor of the Goods or the person for whom any of the Services are performed;

CustomsAct means the Customs Act 1901 (as amended),and any succeeding Legislation and any regulations madepursuant to the Customs Act;

Customs Broker's Licence means any licence granted byCustoms to a party to operate as a licensed customs brokerpursuant to Part XI of the Customs Act;

Customs Duty has the same meaning as Duty in theCustoms Act;

Customs Related Law has the same meaning as inSection 4B of the Customs Act;

Dangerous Goods means Goods or articles or substances of which Goods are comprised which are capable of posing a risk to health, safety, property or the environment and fall within one or more of the UN classifications of dangerous goods or are otherwise liable to cause damage to any person or property whatsoever;

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

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

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

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

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

Excluded Interest means any of the interests set out insection 8 of the PPSA or anyinterest that is not a Security Interest but encumbers theGoods;

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

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

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

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

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

GST has the same meaning as under the GST Law andmeans the Goods and Services Tax imposed under the GSTLaw;

GST Law means the A New Tax System (Goods andServices Tax) Act 1999;

GST Rate means the rate of GST under the GST Law;

Hague Rules means the International Convention for theUnification of Certain Rules relating to Bills of Ladingsigned at Brussels on 25 August 1924, or those rules asamended by the Protocol signed at Brussels on 23 February1968 (the Hague Visby Rules) and the SDR Protocol(1979);

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

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

Incoterms means Incoterms® 2010 issued by theInternational Chamber of Commerce;

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

Input Tax Credithas the same meaning as Input Tax Credit under the GST Law;

Laws means any International Conventions, treaties or domestic laws, regulations or guidelines of theCommonwealth of Australia, any of the States, Territoriesor Municipalities of Australia, or of any country fromwhich, through which or into which the Goods are carriedand including, without limitation all regulations, ordinancesand directions made pursuant to the Laws and any successorLaws;

Licence means any Customs Broker's Licence, DepotLicence, Warehouse Licence or any other licence issued byCustoms or other Government Authority;

OHS Lawsmeans any occupational health and safety legislation, regulations or guidelines, codes of conduct or policies of the Commonwealth of Australia or any of the States, Territories or Municipalities of Australia;

Partiesmeans the Company and the Customer;

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

Privacy Laws means the Privacy Act 1988 (Cth), allassociated regulations or guidelines, and any otherassociated or relevant State or national privacy legislation,regulations or guidelines;

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

Reporting Obligationsmeans the obligations of the Company to report the arrival, carriage and movement of goods pursuant to the Customs Act or any Customs Related Law or as required by any Government Authorities or which the Company, at its sole discretion, considers to be necessary to comply with the conditions or obligations of its Licences;

Related Body Corporate has the same meaning as underthe Corporations Act;

RSAmeans those State and Commonwealth Government Authorities in Australia responsible for road safety regulation of heavy vehicles and Chain of Responsibility legislation and the Heavy Vehicle National Law and the laws governing the carriage of goods by road;

Security Interest has the same meaning as under thePPSA;

Service Agreement means:

(a)           these Trading Conditions;

(b)           the Authority;

(c)           any customer credit application with the Company;and

(d)           any fee quotation estimate or agreement,

as amended from time to time, regardless of whether theCustomer is given notice of any amendment;

Services means any performance of work by theCompany for the Customer in anyway connected with theGoods including, without limitation:

(a)           making any reports, entries and declarations requiredby any Government Authorities;

(b)           quoting the ABN as may be required under the GSTLaw;

(c)           providing all necessary information and completingall necessary documentation and reports for thepurposes of any Government Authorities; and

(d)           entering into contracts with Sub-contractors onbehalf of the Customer to enable the Carriage,import, export, storage or transportation of theGoods;

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

Shipping Contract means:

(a)           a contract of marine salvage or towage;

(b)           a charter party of a ship; or

(c)           a contract for the carriage of goods by ship, whichincludes a reference to any contract covered by a seacarriage document within the meaning of theamended Hague Rules referred to in section 7(1) ofthe Carriage of Goods by Sea Act 1991 (Cth);

Small Business Contract means a contract between theCompany and the Customer for a supply of Services where:

(a)         at the time the contract is entered into, at least one of the Company or the Customer is a business that employs fewer than 20 persons; and

(b)        either of the following applies:

(i)         the upfront price payable under the contract does not exceed $300,000;

(ii)         the contract has a duration of more than 12 months and the upfront price payable under the contract does not exceed $1,000,000.

Sub-contractor means:

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

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

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

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

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

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

Warehouse Licence has the same meaning aswarehouse licence as defined in section 78 of the CustomsAct;

1.2          Interpretation

(a)           These Trading Conditions, the Service Agreement and any collateralagreements made by the Company with the Customerwherever made shall be governed and construedaccording to the laws of Victoria and shall be subject to the exclusive jurisdiction of the courts of Victoria and those courts which can hear appealsfrom those courts.

(b)           If these Trading Conditions are held to be subject tothe laws of any jurisdiction other than theCommonwealth of Australia and the State/Territory of Victoria then these Trading Conditions shallcontinue to apply and shall be void only to the extentthat they are inconsistent with or repugnant to thoselaws and no further.

(c)           Subject to clause 26, all the rights, immunities andlimitations of liability contained herein shall continueto have their full force and effect in all thecircumstances notwithstanding any breach of anyterm or condition hereof or any collateral agreementby the Company and notwithstanding that theServices have been provided, the Goods delivered asdirected by the Customer or the Authority havingexpired or been terminated.

(d)           Unless written notification to the contrary is given bythe Customer to the Company at or prior to enteringinto these Trading Conditions, the Customerexpressly warrants and represents that all or anyServices to be supplied by the Company and acquiredby the Customer pursuant to this Service Agreementare so supplied and acquired for the purposes of abusiness, trade, profession or occupation carried onor engaged in by the Customer.

(e)           In the interpretation of these Trading Conditions thesingular includes the plural and vice versa, and wordsimporting corporations mean and include naturalpersons and vice versa.

(f)            No agent or employee of the Company has theauthority to waive or vary these Trading Conditionsunless the Company approves such waiver orvariation in writing. Any forbearance by theCompany in enforcing the Trading Conditions doesnot constitute a waiver. If the Company waives abreach of a Trading Condition, the waiver doers notoperate as a waiver of another breach of the same orany other Trading Condition or as a continuingwaiver.

(g)           Where any provision (or part thereof) of theseTrading Conditions is held to be illegal orunenforceable, it may be severed and shall in no wayaffect or prejudice the enforceability of any otherterm or condition herein.

(h)           Where there is an inconsistency between the termsand conditions of the Service Agreement, therelevant documents shall be construed in thefollowing descending order of priority:

(i)            these Trading Conditions;

(ii)           the Authority;

(iii)          any customer credit application; and

(iv)          any fee quotation estimate or agreement.

(i)             Reference to any Laws or to any section or provisionof any Laws includes any statutory modifications, re-enactments,substitutions or replacements thereof andall Laws issued thereunder.

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

(k)           References to clauses are references to clauses inthese Trading Conditions.

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

(m)          These Trading Conditions do not affect any rights theCustomer has under the Competition and ConsumerAct.

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

(i)            clause25does not apply;

(ii)           clause26applies; and

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

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

(i)            clause25applies; and

(ii)           clause26does not apply.

Trading Conditions

(a)           The Company carries on business as a CustomsBroker under Part XI of the Customs Act and forwarding agent. The Company is not a common carrier and will accept no liability as such.  All Services provided by the Company are governed solely by these Trading Conditions which, shall prevail over any terms and conditions of the Customer and any terms and conditions contained in any transport document including any bill of lading, waybill or consignment note except to the extent provided for in these Trading Conditions. 

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

(c)           The Company may refuse at its sole and absolutediscretion to accept any Goods for Carriage withoutassigning any reason.

(d)           The Customer acknowledges that where terms ofCarriage are limited pursuant to Convention, statute,Law, bill of lading or airway bill, and the transport ofthe goods extends or requires transport outside andbeyond the terms provided for in that Convention,statute, Law, bill of lading or airway bill then theCustomer may be required to enter into a furthercontractual agreement with the forwarder or carrierregarding that portion of transport in order to limitliability on behalf of the forwarder or carrier, orwhere the transport was unforeseen, the limitation ofliability provisions in place for the foreseen transportwill extend to the unforeseen transport, even wherethat liability provision does not envision transport ofthat kind.

(e)           The Customer acknowledges and agrees that theCompany, its agents, employees and contractors areobliged to comply with certain conditions and Lawsin respect of Licences in relation to the Goods orServices and none of the Company, its agents,employees or contractors are in breach of theseTrading Conditions or in their obligations to theCustomer in complying with such conditions orLaws.

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

(i)            the Company's Reporting Obligations may require theCompany, its agents, employees andcontractors to disclose a breach or possiblebreach of any Customs Related Law to anyGovernment Authority;

(ii)           none of the Company, its agents, employeesand contractors will have any liability to theCustomer or any other party arising fromcompliance with its Reporting Obligations or the conditions of its licences; and

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

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

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

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

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

(ii)           an attorney not exercising its powers.

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

The Authorised Signatory acknowledges and agrees that ithas received the Trading Conditions, understands theTrading Conditions and by either signing the Authority orinstructing the Company to perform the Services, theCustomer will be bound by the Trading Conditions.

(a)           Wherever it is necessary, for the purpose of theseTrading Conditions or any other purpose whatsoever,for instructions to be given to the Company, suchinstructions will be valid only if given in writing,acknowledged by the Company in writing and givenin sufficient time in all the circumstances for theCompany reasonably to be able to adopt theinstructions. Standing or general instructions, orinstructions given late, even if received by theCompany without comment, shall not be bindingupon the Company. If the Company adopts standingor general instructions, or instructions given late, forone or more transaction for the Customer or anyother party, that does not in any way affect thevalidity of those instructions in relation to any futuretransaction. No attempt by the Company to adoptlate instructions will constitute an acceptance by theCompany or affect the validity of those instructions.

(b)           Notwithstanding any prior dealings between theCompany and the Customer or any rule of law orequity or provision of any statute or regulation to thecontrary, or any contracts, documents and othermatter (including cash, cheques, bank drafts andother remittances) sent to the Company through thepost shall be deemed not to have been received bythe Company unless and until they are actuallydelivered to the Company at its office address orplaced in the Company's post office box, if soaddressed.

Subject to, and in accordance with, these TradingConditions, the Company agrees and the Customer herebyemploys and authorises the Company as agent for theCustomer to contract either in its own name as principal oras agent for the Customer with any Sub-contractor for theCarriage, movement, transport or storage of the Goods orfor the performance of all or any part of the Servicespursuant to or ancillary to these Trading Conditions. Anysuch contract may be made upon the terms of contract usedby the Sub-contractor with whom the Company maycontract for the Services and may be made upon the termsand subject to the conditions of any special contract whichthe Sub-contractor may in any particular case require,including in every case any term that the Sub-contractormay employ any person, firm or company for performanceof the Services so contracted for.

(a)           The Company is entitled to retain and be paid allbrokerages, commissions, allowances and otherremunerations customarily retained by or paid toshipping and forwarding agents and (where theCompany accepts specific instructions underclause 11to effect insurance) insurance brokerswhether declared or otherwise and no suchbrokerage, commission or allowance or otherremuneration shall be payable or allowable to theCustomer or its principal (if any). The Companymay charge by weight, measurement or value andmay at any time reweigh, remeasure or revalue theGoods (or request the same) and charge additionalfees accordingly.

(b)           Quotations as to Fees and other charges are given onthe basis of immediate acceptance and subject to theright of withdrawal or revision by the Company.Quotations are valid only for the specified weight and volume ranges quoted and for the designated services and standard of services quoted.  If any changes occur in the rates of freight, insurance premiums, warehousing, statutory fees or any other charges applicable to the Goods, quotations and charges are subject to revision accordingly with notice or, if it is not reasonably practicable, without notice to the Customer.

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

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

(d)           If, at any time before or whilst these TradingConditions are operative, Carbon Legislation is inforce, imposed or varied, or the impact of CarbonLegislation varies, then the Customer is liable to paythe Company for any Carbon Costs (or increases inCarbon Costs) incurred by the Company.

(e)           The Company shall under no circumstances beprecluded from raising a debit in respect of any fee ordisbursements lawfully due to it, notwithstanding thata previous debit or debits (whether excluding orpartly including the items now sought to be charged)had been raised and whether or not any notice wasgiven that further debits were to follow.

(f)            This subclause 7(f)applies if the Company is or maybecome liable to pay GST in relation to any Supplyunder these Trading Conditions:

(i)            unless otherwise stated, all charges quoted areexclusive of the GST imposed under the GSTLaw;

(ii)           the Customer shall be responsible forpayment of any GST liability in respect of theServices as provided by the Company or bythird parties or Sub-contractors which shall bepayable at the same time as the GST-exclusiveconsideration;

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

(iv)          GST shall be payable by the Customer withoutany deduction or set-off for any other amountat the same time as the GST exclusiveconsideration is payable;

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

(vi)          if the Customer defaults in the payment on thedue date of any amount payable under subclause 7(f)(ii)then without prejudice to anyother remedies of the Company and upondemand by the Company, the Customer shallpay to the Company an amount equal to theamount of any damages or interest oradditional GST that may become payable bythe Company due to the default of theCustomer.

(g)           All amounts due to the Company in Australia arepayable in Australian dollars. The Company isentitled to charge a currency conversion premiumwhen converting receivables into Australiancurrency.

(h)           The Customer agrees that the Fees will be paidwithin 14days of thedate of an invoice statement or as otherwise determined by the Company.

(i)             If any amounts payable or due under any agreementbetween the Company and the Customer (including,without limitation, amounts payable pursuant to subclause 10(a)or fees payable for Services providedby the Company) are not made within seven days ofthe due date, the Customer will be in default andwithout limiting any other rights of the Company, theCustomer shall pay to the Company, by way of liquidated damages, interest to be calculated inaccordance with the National Australia Bank business overdraft reference rate onthe amount outstanding calculated from the due dateuntil payment is made in full. The Company maytake any legal proceedings to recover amounts owingpursuant to these Trading Conditions.

(j)             The Company reserves the right to offset anyamounts receivable from the Customer against anyamounts payable to that Customer or any companyaffiliated with the Customer or any Related BodyCorporate of the Customer. This right existsirrespective of the date the liability has been createdor debt incurred with the Company.

(k)           The Company, its servants or agents shall have aspecial and general lien on the Assets and a right tosell the Assets whether by public or private sale orauction without notice, for Fees, freight, demurrage,detention charges, duty, fines, penalties, salvage,average of any kind whatsoever and withoutlimitation, any and all Debts, charges, expenses orother sums due and owing by the Customer or theCustomer's principals, servants or agents. Inaddition, the lien shall cover the costs and expensesof exercising the lien including without limitation,the costs of sale and reasonable legal fees.

(l)             The lien and rights granted by subclause 7(k)shall survive delivery of the Assets and the Company shallbe entitled to retain the proceeds of sale of the Assetsin respect of any outstanding amounts referred to inthis clause. The Company sells or otherwise disposesof such Assets pursuant to subclause7(k)as principal and not as agent and is not the trustee of thepower of sale.

(a)           Without limiting the generality of subclauses 7(k)– 7(l), the Customer acknowledges that the Company shall have a Security Interest which attaches over any Assets which are the subject of the Services and in the Company's possession.  The Customer acknowledges and consents to the registration and perfection of the interest set out in this subclause8(a)for the purposes of the PPSA.

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

(c)           The Customer acknowledges that it must sign the Authority and if it does not sign the Authority it must adopt or accept these Trading Conditions by conduct.

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

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

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

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

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

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

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

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

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

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

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

including anything the Company reasonably asks the Customer to do in connection with the PPSA.

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

(i)            it is either the owner of the Goods, or theauthorised agent of the owner of the Goodswith authority to bind the owner to act orotherwise have authority to arrange theServices under the Service Agreement;

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

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

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

(v)           it will provide all documents, information andassistance required by the Company to complywith the requirements of the GovernmentAuthorities in an accurate and timely fashionas required by those Government Authorities;

(vi)          it will retain all documents or records in themanner required by the GovernmentAuthorities;

(vii)         it will observe all requirements of anyGovernment Authorities;

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

(ix)          it has complied with all Laws and regulations of any Government Authorities relating to thenature, condition, packaging, handling, storage, weightand Carriage of the Goods including all Lawsprescribed by the RSA;

(x)           the Goods are packed to withstand ordinaryrisks of handling storage and Carriage, havingregard to their nature;

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

(xii)         the Goods and their Carriage do notcontravene any Laws;

(xiii)        it will comply at all times with all PrivacyLaws in relation to the Service Agreement, theGoods and the Services at all times and willnotify the Company of any issues orrequirements under such laws in relation to theService Agreement, the Goods or Services ofwhich the company should be aware; and

(xiv)        it will comply at all times with all OHS Laws in relation to the Service Agreement, the Goods and the Services, and will notify the Company of any issues or requirements under such laws in relation to the Service Agreement, the Goods or the Services of which the Company should be aware, or which may affect the Company's ability to comply with all OHS Laws.

(b)           The Customer acknowledges that a breach or failureto observe all or any of the warranties in subclause 9(a)could lead to penalties or damages tothe Customer and also to the Company and theCustomer agrees to provide the indemnity to theCompany on account of such penalties or damages pursuant to clause 10.

(a)           Without limiting the effect of these TradingConditions, the Customer agrees to indemnify andkeep indemnified the Company for:

(i)            any loss or damage directly or indirectlycaused by the Goods or by breach of theseTrading Conditions by the Customer;

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

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

(A)          providing information that is incorrect ormisleading;

(B)          omitting to provide material informationrequired to the Government Authorities;

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

(D)          providing information in a mannerwhich does not enable the Company tocomply with the requirements of theGovernment Authorities for reporting inprescribed periods; and/or

(E)          failing to provide information ordocumentation requested by theCompany;

(iv)          penalties associated with the failure by the Customer to maintain or provide its documents or records in the manner and at the time contemplated by the Government Authorities;

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

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

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

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

(ix)          damages payable by the Company from the failure of the Customer to return any container or transport equipment involved in Carriage in the time required by the contract between the Company and the supplier or owner of that container or other transport equipment;

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

(xi)          liabilities or costs incurred by the Company on behalf of the Customer associated with the Services including, without limitation, amounts paid to carriers of goods for the Carriage of Goods or cleaning of containers (whether Sub-Contractors or otherwise and amounts incurred by the Company in exercising its rights pursuant to these Trading Conditions);

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

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

(xiv)        all expenses directly or indirectly incurred arising out of or in connection with the entry of an officer of any Government Authorities or other authorised person on the premises of the Company for the purpose of exercising any powers pursuant to the requirements of any Government Authorities and/or inspecting, examining, making copies of, taking extracts of documents on the premises to the extent that the exercise of the powers is related to the Services;

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

(xvi)        any charges levied by Government Authorities for examination and treatment of the Goods;

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

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

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

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

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

(xxii)       any costs, charges or penalties incurred by the Company as a result of or in connection with any breaches of any Licences in relation to the Goods or Services;

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

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

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

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

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

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

(c)           The nature of the indemnity provided pursuant tosubclause10(a)will include, without limitation, allpenalties, liabilities, all losses (including indirect andConsequential Loss) and damages assessed againstthe Company and its officers and employees,together with all legal costs incurred by the Company(calculated on a solicitor/client basis). Theindemnity shall continue in force and effect whetheror not the Goods have been pillaged, stolen, lost,damaged or destroyed.

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

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

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

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

(h)           There is no need for the Company to suffer or incurany losses, costs, damages, liabilities, judgments,penalties or expenses before requiring payment fromthe Customer.

The Company shall not effect insurance on the Goodsexcept upon receipt of express instructions given in writingby the Customer and the Customer's written declaration asto the value of the Goods. All such insurances effected bythe Company are subject to the usual exceptions andconditions of the policies of the insurer or underwritertaking the risk. At the discretion of the Company suchinsurance may name the Customer or owner as insured. Inthe event of any dispute in regard to liability under any suchinsurance policy for any reason whatsoever the Customer orother insured shall have recourse against the insurer orunderwriter only and the Company shall have no liability orresponsibility in relation to any such insurance policy.

(a)           Subject to express instructions in writing given bythe Customer and accepted by the Company inwriting (and without limiting the generality ofclause 6), the Company reserves to itself completefreedom to decide upon the means, route andprocedure to be followed in the handling, storage andtransportation of the Goods and is entitled andauthorised to engage Sub-contractors to perform allor any of the functions required of the Companyupon such terms and conditions as the Company inits absolute discretion may deem appropriate.

(b)           The Customer agrees that:

(i)            the value of the Goods shall not be declared orinserted in a Bill of Lading or a sea carriagedocument for the purpose of extending a shipor carrier's liability under the Carriage ofGoods by Sea Act 1991 and Carriage ofGoods by Sea Regulations 1998 except uponexpress instructions given by the Customer;

(ii)           in the case of Carriage by air, no option ordeclaration of value to increase air-carrier'sliability under:

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

(B)          Article 22(2) of Schedule 1, 2, 4 or 5 tothe Civil Aviation (Carrier's Liability)Act 1959,

will be made except on express instructiongiven in writing by the Customer;

(iii)          in the case of Carriage by land, or anyCarriage ancillary to the Carriage mentionedabove and not expressly provided for underany contract within these Trading Conditions, under Convention or under any statute or Law,the Customer agrees that the value of theGoods shall not be declared or inserted into acontractual document or as part of the tradingterms for the purpose of extending theforwarder or Carrier’s liability under anycircumstance except upon express conditionsagreed to in writing by the Carrier orforwarder who expressly elect to waive thatright;

(iv)          in all other cases where there is a choice ofcharges by Carriers, warehousemen,stevedores or others according to the extent ofthe liability assumed by the Carriers,warehousemen, stevedores or others, nodeclaration of value (where optional) will bemade for the purpose of extending liability,and the Goods will be forwarded or dealt withat the Customer's risk for minimum charges,unless express instructions in writing to thecontrary are given by the Customer;

(v)           the Company shall have no obligation to takeany action in respect of any Goods that may berecognisable as belonging to the Customerunless it has received suitable instructionsrelating to such Goods together with all necessary documents. In particular, theCompany shall not be obliged to notify theCustomer of the existence or whereabouts ofthe Goods or to examine them or to take any other steps for their identification, protectionor preservation or for the preservation of anyclaim by the Customer or any other partyagainst the Carrier, insurer or any third party;and

(vi)          all Goods moved by air are subject tovolumetric conversion on the basis of one kilobeing the equivalent of six thousand cubiccentimetres. Goods moved by other means aresubject to volumetric conversion on the basisof relevant industry standards or as modifiedby the Carrier’s standard trading conditions.

(a)           Where the Goods are perishable and are not taken upimmediately upon arrival or are insufficiently orincorrectly addressed or marked or otherwise notidentifiable, they may be sold or otherwise disposedof with or without notice to the Customer, consignor,owner or consignee of the Goods and payment ortender of the net proceeds of any sale after deductionof all costs, expenses and charges incurred by theCompany in effecting such sale or disposal shall beequivalent to delivery.

(b)           Where the Goods are non-perishable and cannot bedelivered either because they are insufficiently orincorrectly addressed or marked or otherwise notidentifiable or because they are uncollected or notaccepted by the consignee they may be sold orreturned at the Company's option at any time afterthe expiration of 21 days from a notice in writingsent to the Customer at the address which theCustomer gave to the Company on delivery of theGoods. All costs, charges and expenses incurred bythe Company and arising in connection with thestorage, sale or return of the Goods shall be paid bythe Customer and may be deducted from theproceeds of the sale of the Goods.

(c)           Where the Goods are stored by the Company for theCustomer and they are uncollected for whateverreason they may be sold or returned at the Company'soption at any time after the expiration of 21 daysfrom a notice in writing sent to the Customer at theaddress which the Customer gave to the Company ondelivery of the Goods. All costs, charges andexpenses incurred by the Company and arising inconnection with the storage, sale or return of theGoods shall be paid by the Customer and may bededucted from the proceeds of the sale of the Goods.

(d)           In respect of subclauses 13(a), 13(b)and 13(c), theCompany sells or otherwise disposes of such Goodsas principal and not as agent and is not trustee of thepower of sale.

(e)           In the event that any sale of Goods pursuant tosubclauses13(a), 13(b)and 13(c)does not providesufficient proceeds to discharge all liability of theCustomer to the Company, the Customeracknowledges that it is not released from theremainder of the liability to the Company merely bysale of the Goods.

In the event that the Goods are found to be DangerousGoods they may be destroyed or otherwise dealt with at thesole discretion of the Company or any other person inwhose custody they may be at the relevant time. If suchGoods are accepted under arrangements previously made inwriting they may nevertheless be destroyed or otherwisedealt with if they become dangerous to other goods orproperty. The expression 'goods likely to cause damage'includes goods likely to harbour or encourage vermin orother pests and all such goods as fall within the definition ofhazardous and dangerous goods in the legislation governingcarriage by rail in the States and Territories of Australia and OHS laws.

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

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

(b)           The Company is deemed to have satisfied its deliveryobligations under the Service Agreement if theCompany delivers the Goods to the address given bythe Customer and obtains from a person at thataddress a receipt or a signed delivery docket.

(c)           In the event of the consignee refusing to take delivery as contemplated in subclause16(b), or not being able to take delivery of the Goods, or the Goods being unable to be delivered for any other reason, the Company is authorised to at the Company's absolute discretion and at the Customer's sole expense and risk and without liability to the Company, deal with the Goods as the Company thinks fit including storing or disposing of the Goods or returning them to the Customer or the person entitled to collect the Goods.

The Company shall be under no obligation to make anydeclaration to, or to seek any special protection or coverfrom, the Department of Infrastructure and Regional Development, railways authority orprovider of railways in any State or any airline or roadtransport authority in respect of any Goods which fit that body's descriptionof :

(a)           dangerous or hazardous goods; or

(b)           goods liable to be stored in the open,

unless written instructions to that effect are given to theCompany by the Customer.

If the Goods are landed from any vessel in a damaged orpillaged condition and an examination might be held orother action taken by the Company in respect thereof, noresponsibility attaches to the Company for any failure tohold such examination or take such other action unless theCompany has been given sufficient notice to enable it toarrange for such examination or for the taking of such otheraction as the case may be.

(a)           Without limiting the effect of clause 12, pending forwarding and delivery, the Goods may bewarehoused or otherwise held at any place or placesat the sole discretion of the Company at theCustomer's risk and expense.

(b)           In circumstances where the Company stores theGoods, the Company may, by notice in writing,require that the Customer remove the Goods for anyreason whatsoever within seven days from receipt of anotice delivered to the address which the Customergave to the Company on delivery of the Goods. Ifthe Customer fails to do so, the Company mayremove the Goods and store them in such a mannerand in such a place as the Company thinksappropriate at the Customer's expense and risk.

The Company may in its absolute discretion refuse instructions to collect Goods on delivery on COD terms in cash or otherwise.  Where the Company does accept such instructions its only obligation to the Customer is to use reasonable diligence and care in such collection. 

(a)           Without limiting the effect of clause 10but subject to subclause 26(g)(where it applies), and subject to clause 26, to the full extent permitted by law, the Company its servants and agents shall not be responsible for loss or damage of any kind whatsoever arising out of the provision of its Services to the Customer (whether caused by negligence or wilful default by the Company its servants or agents) and the Customer agrees to indemnify the Company in respect of any claims made by Sub-contractors or third parties concerning the provision of Services by the Company and the following matters are expressly covered by this limitation of liability:

(i)            any liability to pay amounts to GovernmentAuthorities (including, without limitation,customs duty or GST) that would not haveotherwise been payable or any penalties(including penalties imposed directly on theCompany, its servants or agents) as a result oftheir reliance on incorrect informationprovided by the Customer, consignor orconsignee of the Goods, or their respectiveagents whether imposed by court orInfringement Notice;

(ii)           any liability concerning the making of anystatement, forecast, information or givingadvice in relation to the liability of theCustomer to pay any amounts owing to anyGovernment Authorities;

(iii)          any liability in respect of the loss, misdelivery, deterioration, non-delivery, contamination, evaporation or damage to the Goods orconsequential loss arising as a result howevercaused;

(iv)          any loss or depreciation of market valueattributable to delay in forwarding the Goodsor failure to carry out instructions of theCustomer;

(v)           loss, damage, expense or additional costarising from or in any way connected withmarks or brands on, weight, numbers, content,quality, description of the Goods;

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

(vii)         loss, damage or delay occasioned byexamination of the Goods by any of theGovernment Authorities;

(viii)        loss, damage or delay occasioned by treatmentof the Goods by any of the GovernmentAuthorities (including without limitation, anyfumigation or decontamination or othertreatment by the Department of Agriculture);

(ix)          any costs incurred by the Company on behalfof the Customer to any other person in relationto the Carriage of the Goods;

(x)           any losses, liabilities, costs or charges incurredby the Company as a result of or in connectionwith a direction or request from any Government Authorityinrelation to the Goods or Services;

(xi)          any losses, liabilities, costs or charges incurredby the Company as a result of or in connectionwith a suspension or cancellation byany Government Authorityof an ATD in relation to the Goods orServices;

(xii)         any losses, liabilities, costs or charges incurredby the Company as a result of or in connectionwith any variation by any Government Authorityof conditionsof Licences or the addition by any Government Authorityof newconditions on Licences in relation to theGoods or Services;

(xiii)        any losses, liabilities, costs, charges orpenalties incurred by the Company as a resultof or in connection with any breaches of anyLicences in relation to the Goods or Services;

(xiv)        any losses, liabilities, costs, charges orpenalties incurred by the Company as a resultof or in connection with the Companycomplying with any conditions or Laws inrespect of any Licences in relation to theGoods or Services;

(xv)         any losses, liabilities, costs or charges incurredby the Company as a result of or in connectionwith any suspension or cancellation ofLicences by Customs in relation to the Goodsor Services; and

(xvi)        loss, damage or delay occasioned bydelay inthe Carriage of the Goods or handling of theGoods in the course of the Carriage of theGoods.

(b)           The Company shall not be liable in any event for anyConsequential Loss whether or not the Company hadknowledge that such damage might be incurred.

(c)           The Company and Customer acknowledge thatGoods moving by airfreight are subject to theapplicable Airfreight Convention. The Customer’srecovery of loss or damage, if any, is against theairline carrier and is limited in accordance with theAirfreight Convention or any other Conventions thatmay be applicable. In the event of any loss ordamage suffered by the Customer whilst the Goodsare in the possession of the airline carrier, theCompany will seek to recover on behalf of theCustomer from the principal airline carrier amountspayable under the aforementioned Conventions asthey are applicable. The Customer will indemnify,defend and hold the Company harmless against anyclaims for loss or damage to their Goods incurredwhilst they were in the possession of the airlinecarrier.

(d)           The Company and Customer acknowledge that Goods moving by seafreight are subject to theapplicable international treaties including the HagueRules. The Customer’s right to recovery of loss ordamage, if any, is against the seafreight Carrier and is limited in accordance with the Hague Rules or anyother Conventions that may be applicable. In theevent of any loss or damage suffered by theCustomer whilst the Goods are in the possession of the seafreight Carrier, the Company will seek torecover on behalf of the Customer from the carrieramounts payable by the Hague Rules as they areapplicable. The Customer will indemnify, defendand hold the Company harmless against any claimsfor loss or damage to their goods incurred whilst theywere in the possession of the seafreight Carrier.

(e)           The Company and Customer acknowledge thatGoods moving by airfreight or seafreight may necessarily involve a part of transport undertaken byother means in order to comply with the terms ofCarriage under the Service Agreement or anycontract between the parties. Where this is so, andno international treaty is applicable which covers theadditional transport, the Customer’s recovery of lossor damage, if any, is against the carrier and is limitedin accordance with the Convention applicable for themajority of the transport, even where that Conventiondoes not envisage liability of the kind of transportconcerned. In the event of any loss or damagesuffered by the Customer whilst the Goods are in thepossession of a third party Carrier, the Company willseek to recover on behalf of the Customer from thethird party Carrier amounts payable by theseConventions as they are applicable. The Customerwill indemnify, defend and hold the Companyharmless against any claims for loss or damage totheir Goods incurred whilst they were in thepossession of the third party Carrier where suchCarriage was necessary in order to comply with theterms of the Service Agreement.

(f)            The Company shall not be liable to the Customer forany breach or failure to performs its obligationsunder these Trading Conditions or any damage orloss to Goods resulting from one of the following:

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

(ii)           act of God;

(iii)          act of war;

(iv)          act of terrorism;

(v)           act of public enemies;

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

(vii)         strikes or lock-outs or stoppage or restraint oflabour from whatever cause, whether partial orgeneral;

(viii)        riots and civil commotions;

(ix)          saving or attempting to save life or property atsea; or

(x)           any other cause arising beyond the reasonablecontrol of the Company, without the actual fault or privity of the Company and withoutthe actual fault or privity of the agents orservants of the Company.

(g)           If the occurrence of any event contemplated in subclause 21(f)causes a delay of over 5 BusinessDays in any obligation of the Company, then theprovision of Services may be terminated by notice inwriting by either party to the other party. However,all costs, charges and expenses already incurred bythe Company prior to the termination or arising inconnection with the disposal or return of the Goodsshall be paid by the Customer.

(h)           Any claim made against the Company, its servants orsub-agents is limited to the full extent permitted byLaw. To the extent that the liability of the Companyis limited by any Convention, statute, Law orcontract, and that limitation exceeds the limitation ofliability pursuant to these Trading Conditions thenthe liability pursuant to that Convention, statute, Lawor contract shall apply.

(i)             If the Customer is not acquiring the Services whollyor predominately for personal, domestic or householduse or consumption, the Company's liability to theCustomer for a breach of any non-excludablewarranty, condition or guarantee is limited, at theCompany's option, to supplying the Services again,or the cost of supplying the Services again.

(a)           Any claim for loss or damage must be notified in writing to the Company within seven days of delivery of the Goods or of the date upon which the Goods should have been delivered.

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

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

(b)           For the purposes of subclause 23(a), the Customer will ensure that its directors and shareholders willsign any other documents required by the Company to evidence and confirm any guarantee, undertakingand indemnity in the form annexed to these TradingConditions.

The Customer acknowledges that the Company shall retainall copyright and other intellectual property in anydocuments or things created by the Company in the courseof providing its Services pursuant to these TradingConditions.

(a)           This clause 25only applies where the ServiceAgreement between the Company and the Customeris not a Consumer Contract or a Small Business Contract and/or is a ShippingContract.

(b)           The Customer must not assign the Customer's rightsor transfer the Customer's obligations under theService Agreement without the Company's priorwritten consent. The Company may assign theCompany's rights and obligation under the ServiceAgreement without the Customer's consent.

(c)           No modification amendments or other variation ofthe Trading Conditions shall be valid and binding onthe Company unless made in writing and dulyexecuted by and on behalf of the Company.

(d)           The Company reserves complete freedom to decidethe manner or procedure to be adopted for any or allof the various acts that will be necessary for thecompletion of the Services. That discretion will bevaried only by instructions delivered by the Customerto the Company in writing and acknowledged by theCompany in writing in sufficient time before theperformance of any service to reasonably allow theCompany to adopt the manner of performing theservice required by the special instructions. THECOMPANY SHALL HAVE NO LIABILITY ORRESPONSIBILITY BY VIRTUE OF THE FACTTHAT THERE MAY BE A CHANGE IN THERATES OF DUTY, WHARFAGE, FREIGHT,RAILAGE OR CARTAGE, OR ANY OTHERTARIFF BEFOREOR AFTER THEPERFORMANCE BY THE COMPANY OR ANYACT INVOLVING A LESS FAVOURABLERATE OR TARIFF, OR BY VIRTUE OF THEFACT THAT A SAVING MAY HAVE BEENEFFECTED IN SOME OTHER WAY HAD ANYACT BEEN PERFORMED AT A DIFFERENTTIME AND WHETHER ITS PERFORMANCEOF ANY OF THE ACTS AFORESAID ISDELAYED OR PRECIPITATED THROUGHTHE NEGLIGENCE OF THE COMPANY ORITS SERVANTS OR AGENTS OR HOWEVERCAUSED.

(e)           Any term in these Trading Conditions which limitsthe Company's liability will also extend and apply toany Sub-contractor, agent or nominee. For thepurpose of this subclause 25(e), the Company is deemed to be acting as agent or trustee for theCompany's agents, employees, nominees and Subcontractorsand each of those persons shall bedeemed to be a party to these Trading Conditions.

(f)            The Customer undertakes that no claim or allegationwill be made, whether by the Customer or any otherperson, against the Company's agents, employees orSub-contractors and if such claim or allegation ismade for the consequence thereof. It is agreed thatthis release and indemnity operates irrespective ofhow the claim or allegation arises includingnegligence or out of events which may constitute afundamental breach of contract or a breach of afundamental term of a contract.

(g)           The Company shall be discharged from all liabilitywhatsoever in connection with the Services and/orthe Goods unless proceedings are served within ninemonths from delivery of the Goods (or from whenthey should have been delivered).

(h)           The indemnity provided in subclause 10(c), shall not be affected in any way if such pillaging, stealing,loss, damage or destruction has occurred or beenbrought about wholly or in part by the negligence orthe alleged negligence or any default, omission,neglect or default or any breach of duty of obligationof the Company, its servants or agents.

(i)             The Customer undertakes and warrants that neither it,nor any other party that has an interest in the Goodsor Services, shall bring any claims against any partythat has provided all or any part of the Services(including any Sub-contractor, principal, employer,employee, nominee or agent of the Company) andwhere any such claims are made by the Customer orany other interested party, the Customer undertakesto indemnify all parties against whom the claims aremade (including the Company) against any loss anddamage that may be suffered as a result of suchclaims.

(j)             In all cases where these Trading Conditions, statute,international Convention or otherwise do not excludethe liability of the Company, the liability of theCompany whatsoever and howsoever caused shall belimited to whichever is the lesser between the valueof the Goods the subject of the Service Agreement atthe time the Goods were delivered to the Company orAustralian $200.

(k)           The Company shall not be liable in any event for anyConsequential Loss whether or not the Company hadknowledge that such damage might be incurred.

(a)           This clause 26only applies where the ServiceAgreement between the Company and the Customeris a Consumer Contract or a Small Business Contract and is not a ShippingContract.

(b)           Neither Party may assign the other Party's rights ortransfer its obligations under the Service Agreementwithout the other Party's prior written consent, whichmust not be unreasonably withheld.

(c)           No modification amendments or other variation ofthe Trading Conditions shall be valid and binding onthe Parties unless made in writing and duly executedby and on behalf of both Parties.

(d)           The Company, acting reasonably, reserves to theright to decide the manner or procedure to be adoptedfor any or all of the various acts that will benecessary for the completion of the Services. THECOMPANY SHALL HAVE NO LIABILITY ORRESPONSIBILITY BY VIRTUE OF THE FACTTHAT THERE MAY BE A CHANGE IN THERATES OF DUTY, WHARFAGE, FREIGHT,RAILAGE OR CARTAGE, OR ANY OTHERTARIFF BEFORE OR AFTER THEPERFORMANCE BY THE COMPANY OR ANYACT INVOLVING A LESS FAVOURABLERATE OR TARIFF, OR BY VIRTUE OF THEFACT THAT A SAVING MAY HAVE BEENEFFECTED IN SOME OTHER WAY HAD ANYACT BEEN PERFORMED AT A DIFFERENTTIME.

(e)           Where the Company accepts instructions to deliveron a COD basis pursuant to clause 20, THECOMPANY IS NOT LIABLE FOR ANY LOSS ORDAMAGE ARISING FROM SUCHINSTRUCTIONS OR SUCH COLLECTION,EXCEPT TO THE EXTENT THAT THE LOSS ORDAMAGE WAS CAUSED BY THE COMPANY.

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

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

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

the loss or damage was caused by negligenceor wilful default by the Company, its servantsor agents.

 

updated:  2/3/17