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Customs & Forwarding Services (Australia) Pty Ltd These trading conditions include provisions which change, reduce or exclude entirely rights which you ("the Customer") might otherwise have. You should read these terms carefully. 1. DEFINITIONS & INTERPRETATIONS "The Company" means the Company whose name appears on the face of this document carrying on business in its own name and under any business name and its officers, employees, servants, agents and sub-contractors. "Sub-contractor" means and includes any other person, company or the railways of the Commonwealth or any State or Territory with whom the Company may arrange for the provision of any services the subject of this contract. "The Customer" includes the customer, owner, storer, consignor and consignee of any goods and their agents, if any, and any person delivering goods and signing any consignment or storage note for carriage, storage or any other purpose. "Goods" are any goods, including the packages containing those goods and shipping or other transport containers, which are the subject of the services provided by the Company to the Customer under this or any other agreement. "Services" are the rights, benefits, privileges or facilities that are to be provided, granted or conferred under a contract for or in relation to the performance by the Company for the Customer and includes handling, storage, carriage and transportation. "Carriers" includes carriers of goods by sea, air, post, road, rail, courier or person, freight forwarders, cargo consolidators, bonded and free stores, terminals, depots and warehouses. "Dangerous goods" includes any goods that are noxious, dangerous, hazardous, flammable, explosive, radioactive or likely to cause damage to any property or person. "Goods likely to cause damage" includes goods likely to harbour or encourage vermin or other pests and all such goods as fall within the definition of hazardous and dangerous goods in the legislation governing storage, handling, carriage or transport by rail, sea, air or road in the Commonwealth of Australia or any States and Territories of Australia. In the interpretation of this agreement the singular includes the plural and vice versa; words importing one gender mean and include each other gender; words importing Corporation mean and include natural persons and vice versa, and reference to any statute includes reference to that statute as amended. 2. THE COMPANY IS NOT A COMMON CARRIER The Company is not a common carrier and will accept no liability as such. The Company may refuse at its sole and absolute discretion to accept goods of any class or type or any goods of any Customer for handling, storage, carriage, transport or any other purpose without assigning any reason. 3. FREEDOM TO DECIDE MEANS, ROUTE, PROCEDURE; USE OF THIRD PARTIES The Company reserves complete freedom to decide the manner, route or procedure to be adopted for any or all of the various acts which will be necessary for the completion of the Services and the handling, storage and transportation of the goods or any part of them and is entitled to engage independent third parties to perform all or any of the functions required of the Company upon such terms and conditions as the Company in its absolute discretion may deem appropriate subject to the compliance with the Customs Act and such independent third parties shall be entitled to the benefits of these conditions to the same extent as the Company. That discretion will be varied only by instructions delivered by the Customer to the Company in writing and accepted by the Company in writing in sufficient time before the performance of any service to reasonably allow the Company to adopt the manner of performing the service required by those instructions. THE COMPANY SHALL HAVE NO LIABILITY OR RESPONSIBILITY BY VIRTURE OF THE FACT THAT THERE MAY BE A CHANGE IN THE RATES OF DUTY, WHARFAGE, FREIGHT, RAILAGE OR CARTAGE, OR ANY OTHER TARIFF BEFORE OR AFTER THE PERFORMANCE BY THE COMPANY OF ANY ACT INVOLVING A LESS FAVOURABLE RATE OR TARIFF, OR BY VIRTUE OF THE FACT THAT A SAVING MAY HAVE BEEN EFFECTED IN SOME OTHER WAY HAD ANY ACT BEEN PERFORMED IN A DIFFERENT TIME AND WHETHER ITS PERFORMANCE OF ANY OF THE ACTS AFORESAID IS DELAYED OR PRECIPITATED THROUGH THE NEGLIGENCE OF THE COMPANY OR HOWEVER CAUSED. 4. LIMITATION OF THE COMPANY'S LIABILITY If, as a result of the supply by the Company of services, the Customer sustains loss or damage, payment, fine or expense by reason of any of the following circumstances, namely:
5. COMPANY BILLS OF LADING, AIR WAY BILLS Where the Company accepts goods from the Customer for carriage under the terms and conditions of a Bill of Lading or Air Way Bill issued by the Company as carrier, forwarder and/or consolidator then the terms and conditions of that Bill of Lading or Air Way Bill shall take precedence over these conditions for such carriage and these conditions shall continue to apply otherwise and shall be void only to the extent that they are inconsistent with or repugnant to the terms and conditions of that Bill of Lading or Air Way Bill and no further. 6. COMPANY MAY RETAIN BROKERAGES, COMMISSIONS, ALLOWANCES, ETC. The Company is entitled to retain and be paid all brokerages, commissions, allowances and other remunerations customarily retained by or paid to international trade facilitators, customs brokers, shipping and forwarding agents, Carriers and others and (where the Company accepts specific instructions under clause 11 of these conditions to effect insurance) insurance brokers and agents, whether declared or otherwise and no such brokerage, commission, allowance or other remuneration shall be payable or allowable to the Customer or its principal (if any). 7. ACCEPTANCE OF QUOTATION; QUOTATIONS SUBJECT TO CHANGE, REVISION Quotations are given on the basis of immediate acceptance and subject to the right of withdrawal or revision by the Company. If any changes occur in the rates of customs duties, freights, exchange, insurance premiums, warehousing, handling, carriage, statutory fees or any other charges applicable to the Goods, quotation and charges are subject to revision accordingly with or without notice to the Customer. 8. CUSTOMER'S GENERAL WARRANTIES The Customer in entering into a transaction of any kind with the Company expressly warrants that:
9. CUSTOMER'S SPECIFIC WARANTY – DANGEROUS GOODS The Customer warrants that the Goods are not Dangerous goods. In the event of a breach of this warranty the Customer and any person delivering the Goods to the Company or causing the Company to handle or deal with the Goods (except under special arrangements previously made in writing) shall be liable for any loss, damage or expense caused thereby and shall indemnify and keep indemnified the Company against all loss, penalties, claims, costs and expenses incurred by the Company in connection therewith. In the event that the Goods are found to be Dangerous goods they may be destroyed or otherwise dealt with at the sole discretion of the Company or any other person in whose custody they may be at the relevant time. If such goods are accepted under arrangements previously made in writing they may nevertheless be destroyed or otherwise dealt with if they become dangerous to other goods, property or persons. 10. GOODS AT OWNER'S RISK The goods are handled, stored, carried and transported entirely at the risk of the Customer and the Company will not be liable to the Customer or any person or persons for any loss of or damage to the goods or part thereof or for the death or injury caused to any person arising out of the provision of Services in relation to the goods whether caused wholly or partly, directly or indirectly by such provision of Services and whether such loss, damage, death or injury arises from the negligence of the Company or otherwise and this indemnity extends to consequential loss arising therefrom. The Customer hereby indemnifies and keeps indemnified the Company from any and all claims and liabilities of whatsoever nature in connection with any loss, damage, death or injury as aforesaid. 11. INSURANCE The Company shall not effect insurance on the Goods except upon receipt of express instructions in writing given by the Customer, including the Customer's written declaration as to the insured value of the Goods, and accepted by the Company in writing. Any such insurance effected by the Company may be subject to such exceptions and conditions as may be required by the insurance company or underwriter accepting the risk. At the discretion of the Company such insurance may name the Customer or owner as the insured. In the event of any dispute in regard as to liability under any such insurance policy for any reason whatsoever the Customer or other insured shall have recourse against the insurer or underwriter only and the Company shall have no liability or responsibility in relation to any such insurance policy, notwithstanding that the premium upon the policy may not be at the same rate as that charged by the Company or paid to the Company by the Customer. The Company will under no circumstance be regarded as an insurer of the Goods and is expressly excluded from liability through loss, damage, delay or non-delivery. 12. NO DECLARATION OF VALUE TO INCREASE LIABILITY OF CARRIER OR OTHERS No optional declaration of value in respect of the Goods will be made by the Company for the purpose of increasing or extending the liability of any Carriers or others where provided for by any statute, contract, tariff or as may be assumed and the goods will be carried, forwarded, stored or otherwise dealt with at the Customer's risk for minimum charges unless express instructions to the contrary are given in writing by the Customer to the Company and accepted in writing by the Company. 13. DANGEROUS GOODS DECLARATIONS; GOODS LIABLE TO STORAGE IN THE OPEN The Company shall be under no obligation to make any declaration to, or seek any special protection or cover from, the Department of Railways or railways authority in the Commonwealth of Australia or any State or Territory or any sea, air, post or road or rail transport authority or company in respect of any Goods falling within the definition of that body:
14. COLLECTION ON DELIVERY (COD) ON BEHALF OF CUSTOMER The Company may in its absolute discretion refuse instructions to collect monies on delivery (COD) 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. THE COMPANY IS NOT LIABLE FOR ANY LOSS, DAMAGE OR EXPENSE ARISING FROM SUCH INSTRUCTIONS OR SUCH COLLECTION WHETHER CAUSED BY NEGLIGENCE OR OTHERWISE. 15. DELIVERY OR DISPOSAL OF PERISHABLE GOODS Where the Goods are perishable and are not taken up immediately upon arrival or cannot be delivered within a reasonable time having regard to the nature or condition of the Goods or are insufficiently or incorrectly addressed or marked or otherwise not identifiable, they may be sold or otherwise disposed of with or without notice to the Customer and payment or tender of the net proceeds or any sale after deduction of all costs, charges and expenses incurred by the Company in affecting such sale or disposal shall be equivalent to delivery. The Company sells or otherwise disposes of such Goods as principal and not as agent and is not trustee of the power of sale. The only obligation of the Company to the Customer in relation to any such sale or disposal is to use reasonable care and skill. 16. DELIVERY OR DISPOSAL OF NON-PERISHABLE GOODS Where the Goods are non-perishable and cannot be delivered either because they are insufficiently or incorrectly addressed or marked or otherwise not identifiable or because they are not collected or accepted by the consignee they may be sold or returned at the Company's option at any time after the expiration of 21 days from a notice in writing sent to the Customer at the address which the Customer gave to the Company on delivery of the Goods. All costs, charges and expenses incurred by the Company and arising in connection with the sale or return of the Goods shall be paid by the Customer. A communication from the Company to the effect the Goods cannot be delivered for any reason shall be conclusive evidence of that fact. The Company sells or otherwise disposes of such Goods as principal and not as agent and is not trustee of the power of sale. The only obligation of the Company to the Customer in relation to such sale or disposal is to use reasonable care and skill. 17. PACKING
18. GOODS MAY BE WAREHOUSED PENDING FORWARDING OR DELIVERY Pending forwarding and delivery, the Goods may be warehoused or otherwise held at any place at the sole discretion of the Company at the Customer's risk and expense. 19. REMOVAL OF STORED GOODS ON DEMAND Upon notice in writing being given by or on behalf of the Company to the Customer to remove stored Goods or any part of them the Customer must within one month from the date of the giving of such notice pay any charges to which a general lien of the Company extends and remove and take away such Goods or part thereof. Such notice shall be given in accordance with clause 29 hereof. If upon the expiration of one month from the giving of such notice the Customer has failed to pay such charges as aforesaid and to remove the Goods or part thereof the Company may remove such Goods or part thereof and store them in such place and in such manner as it thinks proper and at the risk and expense of the Customer. 20. EXAMINATION OF DAMAGED OR PILLAGED GOODS If the Goods are landed or otherwise delivered or offered for delivery from any Carriers or others in an apparently damaged, pillaged or loss condition and an examination might be held or other action taken by the Company in respect thereof no responsibility attaches to the Company for any failure to hold such examination or take such other action unless the Company has been given sufficient notice to enable it to arrange for such examination or for the taking of such other action as the case may be. The Company is under no responsibility or liability to examine any Goods where there is no apparent damage, pillage or loss. 21. NO OBLIGATION TO DEAL WITH GOODS UNLESS ADVISED BY THE CUSTOMER The Company shall have no obligation to take any action in respect of any Goods which may be recognisable as belonging to the Customer unless it has received suitable instructions relating to such Goods together with all necessary documents. In particular, the Company shall not be obliged to notify the Customer of the existence or whereabouts of Goods or to examine them or take any other steps for their identification, protection or preservation or for the preservation of any claim by the Customer or any other party against the carrier, insurer or any third party. 22. NO OBLIGATION TO PAY DISBURSEMENTS OR INCUR DEBTS WITHOUT FUNDING The Company is under no obligation to pay out any disbursement or incur any debt on behalf of the Customer without first being put in funds as requested by the Company. Any invoice, account or request issued by the Company for such disbursements or debts is payable on demand. 23. COLLECTION OF MONIES CHARGED TO OTHER PERSONS; CUSTOMER'S GUARANTEE The Company may in its absolute discretion refuse instructions from the Customer to collect disbursements, charges or fees of any kind payable by the Customer from any other person. Where the Company does accept such instructions its only obligation to the Customer is to use reasonable diligence and care in such collection. The Customer guarantees payment of such disbursements, charges or fees, together with any costs of such collection, in the event of any non-payment in whole or in part by such other person. 24. COMPANY DEBITS MAY BE RAISED The Company shall in no circumstances be precluded from raising a debit or invoice in respect of any fee or disbursement lawfully due to it, notwithstanding that a previous debit or invoice, or debits or invoices, (whether excluding or partly including the items now sought to be charged) had been raised and whether or not any notice was given that further debits or invoices were to follow. 25. INSTRUCTION GIVEN TO THE COMPANY Wherever it is necessary for the purposes of these conditions or any other purpose whatever for instructions to be given to the Company, such instructions will be valid only if given in writing, acknowledged by the Company in writing and given in sufficient time in all the circumstances for the Company reasonably to be able to adopt the instructions. Standing or general instructions, or instructions given late, even if received by the Company without comment, shall not be binding upon the Company. If the Company adopts standing or general instructions, or instructions given late, for one or more transactions for the Customer or any other party, that does not in any way affect the validity of those instructions in relation to any future transaction. No attempt by the Company to adopt late instructions will constitute an acceptance by the Company or affect the validity of those instructions. 26. WHEN DOCUMENTS, PAYMENT, NOTICES DEEMED RECEIVED BY THE COMPANY Notwithstanding any prior dealings between the Company and the Customer or any rule of law or equity or provision of any statute or regulation to the contrary, contracts, documents and other matter (including cash, cheques, bank drafts and other remittances) sent to the Company through the post shall be deemed not to have been received by the Company unless and until they are actually delivered to the Company at its office address or placed in the Company's post office box, if so addressed. 27. LIEN
28. CLAIMS Without prejudice to any condition herein, any claim by the Customer against the Company shall be made in writing and notified to the Company:
Any claim not made and notified as aforesaid shall be deemed to be waived and absolutely barred. No claim of any kind shall be made against any officer, employee, servant, agent or sub-contractor of the Company on any grounds whatsoever. No claim of any kind shall be made against any parent, subsidiary or associated company of the Company or their agents on any grounds whatsoever. 29. HOW NOTICE IS TO BE SERVED BY THE COMPANY The Company may serve any notice in writing to the Customer or any other person:
30. LAW AND JURISDICTION
31. ALTERATIONS OR VARIATIONS TO CONDITIONS No employee, servant or agent of the Company has the authority to alter or vary these trading conditions. Any such alteration or variation shall only apply if approved in writing by the Company.
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