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TRADING CONDITIONS
THESE CONTRACTUAL CONDITIONS
APPLY TO ALL SERVICES PROVIDED BY ("the Company") Hunter Customs Agency Pty
Ltd & Platt Trading Pty Ltd
trading as Hunter Cargo & Customs
These trading conditions
including provisions, which change, reduce or exclude entirely rights which
you (‘the Customer") might otherwise have.
You should read these terms
carefully.
DEFINITIONS:
"Goods" are any goods or
items 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 or are to be provided, granted
or conferred under a contract for or in relation to the performance of work
by the company for the Customer.
1. The Company carries on
business as a customs and forwarding agent. All Services provided by the
Company are governed solely by these terms and conditions which shall
prevail over the Customer’s terms and conditions and any terms and
conditions contained in any transport document including any bill of
lading, waybill or consignment note. 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 any Goods for carriage without assigning
any reason.
2. Subject to express
instructions in writing given by the Customer and accepted by the Company
in writing, the Company reserves to itself complete freedom to decide upon
the means, route and procedure to be followed in the handling, storage and
transportation of the Goods and is entitled and authorised to engage
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. .
3. The Company is entitled
to retain and be paid all brokerages, commissions, allowances and other
remunerations customarily retained by or paid to shipping and forwarding
agents and (where the Company accepts specific instructions under clause 6
of these conditions to effect insurance) insurance brokers whether
declared or otherwise and no such brokerage, commission or allowance or
other remuneration shall be payable or allowable to the Customer or its
principal (if any). The Company may charge by weight, measurement or value
and may at any time reweigh, remeasure or revalue the Goods (or request
same) and charge additional fees accordingly.
4. 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 freight,
insurance premiums, warehousing, 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.
5. The Customer, consignor
and consignee of the Goods, and their respective agents, if any, shall be
bound by and be deemed to warrant the accuracy of all descriptions, values
and other particulars furnished by any one or more of them to the Company
for customs, quarantine, consular and other purposes and shall be liable
for any duty, tax, impost, penalty or outlay of whatever nature levied by
the authorities at any port or place for or in connection with the Goods
and for any payment, fine, penalty, expense, loss or damage made, incurred
or sustained by the Company in connection therewith, arising by reason of
any inaccuracy or omission of any such description, value or other
particular and to indemnify the Company against any such loss, damage
expense fine, or penalty arising from any such inaccuracy or omission.
6. The Company shall not
effect insurance on the Goods except upon receipt of express instructions
given in writing by the Customer and the Customer’s written declaration as
to the value of the Goods. At the discretion of the Company such insurance
may name the Customer or owner as insured. In the event of any dispute in
regard to liability under any such insurance policy for any reason
whatsoever the Customer or other insured shall have recourse against the
insurer or underwriter only and the Company shall have no liability or
responsibility in relation to any such insurance policy.
7. To the 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 third parties
concerning the provision of Services by the Company and the following
matters are expressly covered by this limitation of liability and
indemnity:
(a) any liability to pay
duty that would not have otherwise been payable or any penalties
(including penalties imposed directly on the broker, his servants or
agents as a result of their reliance on incorrect information provided
by the Customer, consignor or consignee of the Goods, or their
respective agents;
(b) any liability
concerning the making of any statement, forecast, information or giving
advice in relation to the liability of the Customer to pay customs duty;
(c) any liability in
respect of the loss, misdelivery, deterioration, non-delivery,
contamination, evaporation or damage to the Goods or consequential loss
arising there from however caused;
(d) any loss or
depreciation of market attributable to delay in forwarding the Goods or
failure to carry out instructions of the Customer;
(e) loss, damage, expense
or additional cost arising from or in any way connected with marks or
brands on, weight, numbers, content, quality, description of the Goods;
(f) loss or damage
resulting from fire, water, explosion or theft;
8. The Customer undertakes
that neither it, nor any other party that has an interest in the Goods or
Services, shall not bring any claims against any party that has provided
all or any part of the Services (including any sub-contractor, principal,
employer, employee or agent of the Company) and where any such claims are
made by the Customer or any other interested party, the Customer
undertakes to indemnify all parties against whom the claims are made
(including the Company) against any loss and damage that may be suffered
as a result of such claims.
9. (1) The Customer
agrees that the value of the Goods shall not be declared or inserted in
a Bill of Lading or a sea carriage document for the purpose of extending
a ship or carrier’s liability under the Carriage of Goods by Sea Act
1991 and Regulations 1998 except upon express instructions given by the
Customer.
(2) In the case of
carriage by air, no option or declaration of value to increase
air-carrier’s liability under Article 22(2) of the First Schedule to the
Civil Aviation (Carrier’s Liability) Act 1959, will be made except on
express instruction given in writing by the Customer.
(3) In all other cases
where there is a choice of charges by carriers, warehousemen or others
according to the extent of the liability assumed by the carriers,
warehousemen or others no declaration of value (where optional) will be
made for the purpose of extending liability, and the Goods will be
forwarded or dealt with at the Customer’s risk for minimum charges,
unless express instructions in writing to the contrary are given by the
Customer.
10. The Company may in its absolute
discretion refuse instructions to collect 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
OR DAMAGE ARISING FROM SUCH INSTRUCTIONS OR SUCH COLLECTION WHETHER CAUSED
BY NEGLIGENCE OR OTHERWISE.
11 (1) Where the Goods are perishable and
are not taken up immediately upon arrival or are insufficiently or
incorrectly addressed or marked or otherwise not identifiable, they may be
sold or otherwise disposed of with or without notice to the Customer,
consignor, owner or consignee of the Goods and payment or tender of the net
proceeds of any sale after deduction of all costs, expenses and charges
incurred by the Company in effecting such sale or disposal shall be
equivalent to delivery.
(2) 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 or
its agent to the effect that the Goods cannot be delivered for any reason
shall be conclusive evidence of that fact.
(3) In respect of sub-clauses 11(1)
and (2) above, the Company sells or otherwise disposes of such Goods as
principal and not as agent and is not trustee of the power of sale.
12. The Customer warrants that:
(a) it has complied with all laws and
regulations relating to the nature, condition, packaging, handling,
storage and carriage of the Goods;
13. Pending forwarding and delivery, the
Goods may be warehoused or otherwise held at any place or places at the
sole discretion of the Company at the Customer’s risk and expense.
14. 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 to its office address or placed in the Company’s
post office box, if so addressed.
15. The Company shall be under no
obligation to make any declaration to, or to seek any special protection
or cover from, the Department of Railways or railways authority in any
State or any airline or road transport authority in respect of any Goods
falling within the definition of that body:
(g) of dangerous or hazardous
goods; or
(h) of goods liable to be stored
in the open,
unless written instructions to that
effect are given to the Company by the Customer.
16.
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 the Goods or to
examine them or to take any other steps for their 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.
17. If the Goods are
landed from any vessel in a damaged or pillaged condition and an
examination might be held or other action taken by the Company in respect
of 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.
18. The Company
reserves complete freedom to decide the manner or procedure to be adopted
for any or all of the various acts which will be necessary for the
completion of the Services. That discretion will be varied only by
instructions delivered by the Customer to the Company in writing and
acknowledged by the Company in writing in sufficient time before the
performance of any service to reasonably allow the Company to adopt the
manner of performing the service required by special instructions. THE
COMPANY SHALL HAVE NO LIABILITY OR RESPONSIBILITY BY VIRTUE OF THE FACT
THAT THERE MAY BE A CHANGE IN THE RATES OF DUTY, WHARFAGE, FREIGHT,
RAILAGE OR CARTAGE, OR ANY OTHER TARIFF BEFORE OR AFTER THE PERFORMANCE BY
THE COMPANY OR ANY ACT INVOLVING A LESS FAVOURABLE RATE OR TARIFF, OR BY
VIRTUE OF THE FACT THAT A SAVING MAY HAVE BEEN EFFECTED IN SOME OTHER WAY
HAD ANY ACT BEEN PERFORMED AT A DIFFERENT TIME AND WHETHER ITS PERFORMANCE
OF ANY OF THE ACTS AFORESAID IS DELAYED OR PRECIPITATED THROUGH THE
NEGLIGENCE OF THE COMPANY OR ITS SERVANTS OR AGENTS OR HOWEVER CAUSED.
19. The Company
shall under no circumstances be precluded from raising a debit in
respect of any fee or disbursements lawfully due to it, notwithstanding
that a previous debit or debits (whether excluding or partly including
the items now sought to be charged) had been raised and whether or not
any notice was given that further debits were to follow.
20. Wherever it is
necessary, for the purpose of these conditions or any other purpose
whatever, for instructions to be given to the Company, such instruction
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 of more transaction for the Customer or any other
party, that does not in any way affect the validity of those
instructions in relation to any future transaction. No attempt by the
Company to adopt late instructions will constitute an acceptance by the
Company or affect the validity of those instructions.
21. The Company, its
servants or agents shall have a special and general lien on the Goods and
a right to sell the Goods whether by public or private sale or auction
without notice, for freight, demurrage, detention charges, duty, fines,
penalties, salvage, average of any kind whatsoever and without limitation
and for any and all debts, charges, expenses or other sums due and owing
by the Customer or the Customer’s principals, servants or agents; in
addition the lien shall cover the costs and expenses of exercising the
lien and such a sale including reasonable legal fees. The lien and rights
granted by this clause shall survive delivery of the Goods and the Company
shall be entitled to retain the proceeds of sale of the Goods in respect
of any outstanding amounts referred to in this clause.
22. 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. In any event, the Company shall be discharged from all
liability whatsoever in connection with the Services and/or the Goods
unless proceedings are served within nine months from delivery of the
Goods (or from when they should have been delivered).
23. Unless otherwise
stated, all charges quoted are exclusive of the Goods and Services Tax
imposed under the A New Tax System (Goods and Services Tax) Act 1999 or
similar legislation ("GST"). The Customer shall be responsible for payment
of any GST liability in respect of the Services as provided by the Company
or by third parties which shall be payable at the same time as the GST
exclusive consideration. The Company agrees to provide the Customer with a
tax invoice to enable the Customer to claim input tax credits.
24 (1) This agreement and
any collateral agreements made by the Company with the Customer wherever
made shall be governed and construed according to the laws of the State
of Australia in which this agreement is entered into and shall be
subject to the exclusive jurisdiction of the Courts of the said State.
(2) If this agreement is
held to be subject to the laws of the Commonwealth of Australia or of
any particular State or any other legislature then these conditions
shall continue to apply and shall be void only to the extent that they
are inconsistent with or repugnant to those laws and no further.
(3) All the rights,
immunities and limitations of liability contained herein shall continue
to have their full force and effect in all the circumstances
notwithstanding any breach of any term or condition hereof or any
collateral agreement by the Company.
(4) Unless written
notification to the contrary is given by the Customer to the Company at
or prior to entering into this agreement the Customer expressly warrants
and represents that all or any Services to be supplied by the Company
and acquired by the Customer pursuant to this agreement are so supplied
and acquired for the purposes of a business, trade, profession or
occupation carried on or engaged in by the Customer.
(5) In the interpretation
of this agreement the singular includes the plural and vice versa; words
importing one gender mean and include each other gender; and words
importing corporations mean and include natural persons and vice versa.
(6) No agent or
employee of the Company has the authority to waive or vary these trading
conditions unless such waiver or variation is approved in writing by the
Company, where any provision (or part thereof) of these terms and
conditions is held by a Court to be unenforceable, it shall in no way
affect or prejudice the enforceability of any other term or condition
herein.
25. The company
reserves the right to undertake recovery action in respect of monies
owed to the company and further, to recover all collection costs
and charges incurred in such action.
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