Fees and Engagement
1.
The Company carries on business as a customs
broker and freight forwarder. The Company does not act as a common carrier
and may refuse to provide Services in relation to the Goods.
2.
In carrying out the Services, the Company
reserves to itself complete freedom to:
(a)
Decide upon the means, route and procedure
to be followed in the handling, storage and transportation of Goods;
(b)
Sub-contract any aspect of the Services
to other parties and to do so upon whatever terms are necessary to perform
the Services.
(c) The Company may also sub-contract any
part of the Services at a different price from that quoted if it is not practical
to obtain the Customers prior approval.
3.
Where instructions are given to the Company,
such instruction shall only be recognised by the Company as valid if given
in sufficient time for the Company to carry out the Services. Instructions
given late, even if received by the Company without comment, shall not be
binding upon the Company.
4.
The Company is entitled to retain and
be paid all fees, brokerages, commissions, allowances, and other remunerations
customarily retained by or paid to customs brokers and freight forwarders.
5.
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, quotations and charges shall be subject to revision accordingly
without notice to the Customer.
6.
The Company shall not arrange for insurance
of the Goods except on receipt of express instructions given in writing by
the Customer and the Customers written declaration as to the value of the
Goods. Risks covered in any such policy of insurance arranged by the Company
may be subject to exceptions and conditions. In the event of any dispute
in respect of the granting of indemnity under or the terms of any such insurance
policy the Company shall have no liability or responsibility to the Customer.
Scope of Services and Responsibilities
7.
The Company may in its absolute discretion
refuse instructions to collect cash on delivery or deliver on any similar
terms. Where the Company does accept such instructions the Company it shall
exercise reasonable diligence and care but it shall not otherwise be responsible
for any loss or damage in relation to the process of collection.
8.
Where the Goods are perishable and are
not taken up immediately upon arrival or are insufficiently or incorrect addressed
or marked or otherwise not identifiable, they may be sold or otherwise disposed
of with or without notice to the Customers, 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 effect such
sale or disposal shall be equivalent to delivery.
9.
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 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 agents to effect that
the goods cannot be delivered for any reason shall be conclusive evidence
of that fact.
10. 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 Customers risk and expense.
11.
Notwithstanding any prior dealings
between the Company and the Customer or any rule of law or equity or provision
of any state or regulation to the contrary, contracts, documents and any other
matter (including cash, cheques, bank drafts and other remittances) sent to
the Company through the post shall be deemed not have been received by the
Company unless and until they are actually delivered to the Company by the
postal authorities, or placed in the company's post office box, if so addressed.
12. The Company shall be under no obligation
to make any declaration to, or to seek any special protection or cover from,
any operator of any railway, airline or road transport or any regulatory body
or authority affecting the transportation, warehousing or storage of any goods
failing within the control or operation of such operator or body:
(a)
of dangerous or hazardous goods; or
(b)
of goods liable to be stored in the open:
unless written instructions to that effect are given to the Company by
the Customer.
13. The Company shall have no obligation to
take any action in respect of any goods that 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 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.
14. In the event that the Goods are landed
from any vessel in a damaged or pillaged condition and it is necessary for
an examination to be held or other action to be taken by the Company in respect
thereof no re responsibility shall attached 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.
15. In the case of:
(a)
Goods with the value exceeding two hundred
dollars (A$200.00) per package or unit or the equivalent of that sum in other
currency, the value will not be declared or inserted in a Bill of Lading or
sea carriage document for the purpose of extending the shipowners or carriers
liability under Article (IV), Rule 5 of the Carriage of Goods by Sea
Act 1991 and Regulations 1998 except upon express
instructions given in writing by the Customer.
(b)
Carriage by air, no option or declaration
of value to increase an air-carriers liability under Article 22(2) of the
First Schedule to the Civil Aviation (Carriers Liability) Act 1959
will be made except on express instruction given in writing by the Customer.
In
all other cases where there is a choice of charges according to the extent
of the liability assumed by 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 Customers risk for minimum
charges, unless express instructions in writing to the contrary are given
by the Customer.
Customer Warranties
16. The Customer shall be bound by and warrants
the accuracy of all descriptions, values and other particulars furnished by
the Customer or its agents to the Company for Customs or consular purposes
or any purpose materially relevant to the transportation of goods.
17. The Customer warrants that:
(a)
the Goods are not noxious, dangerous,
hazardous, inflammable, explosive or likely to cause damage;
(b)
it has complied with all laws and regulations
relating to the nature, condition, packaging, handling and storage and carriage
of the Goods;
(c) the Goods are packed to withstand ordinary
risks associated with handling and storage, having regard to their nature.
In
the event of a breach of this warranty the Customer shall be liable for any
resulting loss or damage and shall indemnify and keep indemnified the Company,
its servants and agents against all damages, loss, penalties, claims, costs
and expenses incurred by the Company in connection therewith. In the event
that the Goods are found to be noxious, dangerous, hazardous, inflammable,
explosive or likely to cause damage they may be destroyed or otherwise dealt
with at the sole discretion of the Company or any other person in whose custody
they may be at the relevant time. If such goods are accepted under arrangements
previously made in writing they may nevertheless be destroyed or otherwise
dealt with if they become dangerous to other goods or property. The expression
goods likely to cause damage includes goods likely to harbour or encourage
vermin or other pests and all such goods as fall within the definition of
hazardous goods in the legislation governing carriage by rail in the States
and Territories of Australia.
Limitation of Liability and Indemnities
18. 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 provision of the Services (whether caused by
negligence or wilful default by the Company, its servants or agents), including
but not limited to:
(a)
any liability to pay Customs
Duty that would not have otherwise been payable or any Government imposed
Penalties;
(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 or any Goods and Services
Tax; and
(c)
any liability in respect of the loss, misdelivery,
deterioration, nondelivery, contamination, evaporation or damage to the Goods
or consequential loss arising therefrom however caused;
(d)
any loss or depreciation
in the value of the Goods, or loss of contracts or sales, attributable to
delay in forwarding the goods or failure to carry out instructions of the
Customer;
(e)
any 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)
any loss or damage resulting from fire,
water, explosion or theft;
(g)
any additional charges levied for wharfage,
freight, railage, cartage, quarantine, storage or other usual third party
services levied and which have not been brought to the Customers attention;
and
(h)
any loss or damage attributable to a claim
that the Company could for whatever reason have carried out its services more
economically.
In
the event that the Company, its servants or agents are found to be responsible
for loss or damage of any kind, the maximum liability shall be the cost or
value of re-supplying the Services.
19. Without prejudice to the Companys rights
under clause 17 above, any claim for loss or damage must be notified in writing to the Company
within 7 days of delivery of the Goods, or in the case of lost goods, within
7 days of the date upon which the Goods were expected to 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
on the Company within 9 months from delivery or anticipated delivery of the
Goods, as the case may be.
20.
The Company acts as a mere agent of the Customer
and any liability to third parties incurred during the course of providing
the Services shall be the responsibility of the Customer. The Customer agrees
to indemnify the Company against losses or claims of any nature arising in
connection with the Services provided by the Company, including (but not limited
to) matters referred to in clauses 7(a) to (h) of these terms. Further, the
Customer agrees to indemnify the Company, its servants and agents, against
the imposition of Customs Penalties resulting from reliance on incorrect information
provided by the Customer, consignor or consignee of the goods, or their respective
agents.
21. The Customer agrees not to bring claims
of any nature against the Companys employees, agents, subcontractors acting
or engaged in connection with the Services, and in the event of such claims
being made:
(a) the
employee, agent or subcontractor (as the case may be) shall have the benefit
of any limitation or exclusion of liability prescribed by these terms; and
(b)
the Customer undertakes to indemnify the Company against any losses
or claims made against the Company resulting from any claims made by the Customer
against employees, agents or subcontractors of the Company in connection with
the Services.
Company's Lien
22. Without prejudice to the rights of the
Company at common law the Goods (and all documents relating thereto) which
come into the possession or under the control of the Company shall be subject
to a special and general lien and pledge for monies due to the Company in
respect of services and/or disbursements relating to the Goods; and for any
other indebtedness to the Company from whatever cause by the Customer, consignor,
owner or consignee of the Goods. If such indebtedness is not paid in full
by the respective debtor within fourteen days of receipt of notice from the
Company that it intends disposing of the goods, the Company may sell the Goods
either by public auction or private treaty at its entire discretion and apply
the net proceeds of sale to reduce or extinguish the Customers indebtedness
and to cover costs associated with exercising the lien, including legal fees.
General
23. The following further interpretative provisions
shall apply:
(a)
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 Victoria and shall be subject to the exclusive jurisdiction of the courts
of the said State.
(b)
All rights granted to the Company in this
agreement shall continue to have their full force and effect in all circumstances
notwithstanding any breach of any term or condition hereof or any collateral
agreement by the Company.
(c) This agreement shall constitute the entire
agreement between the Company and the Customer concerning a particular transaction
and it shall supersede all prior agreements or understandings whether oral,
in writing or implied.
(d)
This agreement (or any part thereof) shall
only be varied or waived in writing by a duly authorised representative of
the Company.
(e)
Where any provision (or part thereof)
of this agreement is held by a court to be unenforceable, it shall in no way
affect or prejudice the enforceability of any other of any provision (or par
