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TERMS & CONDITIONS

1. DEFINITIONS AND INTERPRETATIONS

“Company” means ADT Freight Services Australia Pty Ltd A.B.N. 44 143 271 569 “Customer” means any person at whose request or on whose behalf the Company undertakes any business, or provides advice, information or services, and includes the party named as “shipper” or “consignor” on the front of the Shippers’ instructions and on the Company’s form of transport document (including the Company’s house air waybill or house bill of lading).

“Goods” means article or goods including animals which the Customer or others have provided including containers or any other packaging, pallets or other means of storage supplied to the Company and also includes valuables, bullion, coins, precious stones, jewellery antiques, bank notes, cash currency bonds, negotiable instruments or securities of any kind whatsoever, rare or precious metals or objects, plate, valuable works of art or other precious rare objects of any kind whatsoever.

“Conditions” means the entire undertakings, terms, conditions, and clauses embodied herein and includes the Company’s terms and conditions printed on the front of the Shippers’ instructions and on the Company’s form of transport document (including the Company’s house air waybill or house bill of lading). No servant or agent of the Company has any authority to add or to vary these conditions, unless such additions or variations are in writing and signed by a duly authorised officer of the Company.

“Hague-Visby-Rules” means the provisions of the International Convention for the unification of certain rules relating to Bills of Lading signed at Brussels on 25th August 1924 as amended by the Visby Protocol of 23rd February 1968 and the SDR Protocol of 21st December 1979.

“Warsaw Convention” means the Convention for the unification of certain rules relating to International Carriage by air dated 12th October 1929 as amended at The Hague, 1955 and supplemented by the Guadalajara Convention dated 18th September 1961 as applied respectively by the legislation of the Commonwealth of Australia and New Zealand.

 

2. GENERAL

a)These terms and conditions shall apply to the exclusion of all others including any terms and conditions of the Customer (whether on the Customer’s order form or otherwise).  The Customer acknowledges that these terms and conditions constitute the whole agreement between the parties unless otherwise agreed in writing.

b)If any legislation is compulsorily applicable to any business undertaken, these Conditions shall, as regards such business, be read as subject to such legislation and nothing in these Conditions shall be construed as a surrender by the Company of any of its rights or remedies or immunities or as an increase of any of its responsibilities or liabilities under such legislation, and, if any part of these Conditions be repugnant to such legislation to any extent, such part shall as regards such business be overridden to that extent and not further.

 

3. COSTS

Should payment remain outstanding beyond the Company’s payment terms as outlined, the Customer agrees to pay all legal costs (on a solicitor/own client basis) and all Mercantile Agent’s fees (including any commission payable on the payment of the debt) incurred by the Company as a result of non-payment of the debt.

 

4. THE CUSTOMER

Customers entering into a transaction of any kind with the Company expressly warrant that they are either the owners of Goods or property the subject matter of the transaction or that they are the authorised agents of the owners of the Goods or property the subject matter of the Transaction.  If the Customer is the owner of the Goods or property then it accepts these conditions by entering into the transaction.  If the Customer is the authorised agent of the owner of the Goods or property then, by entering into the transaction, it expressly warrants that it is authorised to accept these conditions and enter into the transaction on behalf of the owner and it further expressly warrants that it accepts these conditions not only for itself but also as agent for and on behalf of the owner of the Goods or property and all other persons who are or may hereafter become interested in the Goods. The Customer shall indemnify the Company in respect of any breach of the warranties contained herein.

 

5. THE COMPANY

The Company is a forwarding agent and, except as hereunder provided, acts solely as an agent in performing and securing services for the Customer and entering into contracts on the Customers behalf with other persons. Except as hereunder provided, the Company is not a carrier or common carrier and does not make or purport to make any contract for the carriage, storage, packing and handling or Goods with the Customer.  Whenever the Company is instructed to undertake or arrange transports, storage, packing, handling or any other services, it is hereby authorised to entrust the Goods or arrangements to third parties subject to the third parties’ contractual conditions and the Customer shall be bound by such conditions and shall indemnify the Company against any claims arising out of their acceptance.

The Company shall be entitled to payment when the Goods are delivered to the Customer or consignee and whether damaged or otherwise.  There are no circumstances under which a refund will be made.

 

6. The company shall be entitled to enter into Contracts:

a)For the carriage of goods by any route or buy any means; and

b)For the storage, package and handling of the goods by any person at any place or places and for any length of time.

And to do such acts as may be necessary or incidental thereto at the absolute discretion of the Company and to depart from the Customer’s instructions in any respect if, in the opinion of the Company, it is necessary or desirable to do so.

 

7. Without prejudice to the generality of the foregoing, the Company is authorised to agree with any third party the charges payable to such third party without reference to or further authorisation from the Customer, it being agreed that the difference between the charges payable by the Company to the third party, and the charges payable by the Customer to the Company is the Company’s commission or remuneration or profit.  The Customer waives any and has no right of enquiry of the charges payable to the third party and the Company is not under any duty to account to the Customer for the Company’s commissions, remunerations or profits.

 

8. The Customer hereby expressly authorises the Company to do such acts and enter into such contracts as are referred to in clause 9 hereof on behalf of the Customer so as to bind the Customer by such acts and contracts in all respects notwithstanding any departure form the Customer’s instructions as aforesaid.

 

9. The Company reserves to itself complete freedom in respect of means, route and procedure to be followed in the handling, packaging, storing and transportation of Goods and instructions by a Customer as to these matters whether expressed or implied and whether oral or written shall be deemed to be for guidance by way of suggestions only.

 

10. The Customer expressly agrees to be bound in all respects by any act or contract or arrangement done or entered into by the Company pursuant to the aforesaid authorisations.

 

11. QUOTATIONS AND CHARGES

Quotations are given on the basis of immediate acceptance and subject to the right of withdrawal or revision.  If any changes occur in the rates of freight, insurance premium or other charges application to the Goods or property the subject of the transaction, whether before or after the transaction is entered into, quotations and charges shall be subject to revision to amounts determined by the Company in its discretion and with or without notice. The Company may charge freight by weight, measurement or value, and may at any time re-weigh or re-value or re-measure or require the Goods to be re-weighed, re-valued or re-measured and charge proportional additional freight accordingly.

 

12. CUSTOMER AND CONSIGNEE LIABILITY

The Customers and consignees of any Goods and their agents, by entering into the transaction, shall be deemed to be bound by the accuracy of all of the descriptions values and particular information provided to the Company for customs, consular and other purposes and they hereby indemnify the Company against all losses, damages, expenses and fines arising from any inaccuracy or omission whatsoever.

 

13. The Customer shall be liable for any duties, taxes, levies, deposits or outlays of any kind levied by the authorities at any port or place for or in connection with the goods and for any payments, storage, demurrage, fines, expenses, loss or damage whatsoever incurred or sustained by the Company in connection therewith.

 

14. The Customer and/or consignees and their agents shall be liable for any duty, tax, impost, excise or outlays of whatsoever nature levied by the authorise at any port or place for or in connection with the Goods and for any payments, fines, expenses, loss or damage made, incurred or sustained by the Company in connection therewith, and the Customer undertakes to indemnify the Company in respect of any of the aforementioned matters even if any such payments, fines, expenses, loss or damage arises by reason of the negligence of the Company, its servants or agents.

 

15. The Customer is primarily liable for the payment of all freight, fees, duties, charges and other expenses whether the same (or any of them) are to be pre-paid or to be collected.

 

16. The Customer shall pay to the Company all sums immediately when due without deduction or deferment on account of any claim, counterclaim or set-off.  Payment to the Company is due as soon as an invoice is rendered.  Payment shall be made in cash unless otherwise agreed by the Company.

 

17. The Company at its discretion may request an advance to cover fees, duties, charges, taxes and/or other expenses payable before the Company’s invoice is rendered. Forthwith upon such request being made, the Customer shall make such advance to the Company.

 

18. Without prejudice to the foregoing provisions, when the Company is instructed to collect freight, duties, fees, charges or other expenses from any person other than the Customer, the Customer shall remain responsible for the payment of the same. The Customer shall forthwith upon demand pay the Company such freight, duties, fees, charges and other expenses or any balance thereof together with interest (if applicable) without deduction or deferment on account of any claim, counterclaim or set-off (whether or not demand is made to such other person).  Without prejudice to the generality of the foregoing, this provision shall apply if (inter alia) the goods are refused by the consignee or other person entitled to delivery or confiscated by the customs or other authorities or for any reason it is in the opinion of the Company not practicable or impossible to arrange for the delivery of the goods.

 

19. MONIES OWED TO THE COMPANY

On all amounts overdue to the Company, the Company shall be entitled to interest calculated on a monthly basis from the date such accounts are overdue until payment thereof at 2% per month (compounded monthly) during the period that such amounts are overdue.

 

20. CHARGEABLE WEIGHT

Freight charges are usually quoted and charged on “chargeable weight” basis. Chargeable weight is the actual gross weight or volume weight, whichever is the higher.  Volume weight is calculated by reference to the volume of the consignment (including packaging) divided by a certain factor.  References to “per kilogram” or “per ton” or “per pound” refer to the higher of the actual gross weight and the volume weight.  Further details relating to the computation of freight charges will be provided to the Customer upon request. Customers are advised to obtain such details.

 

21. SUB-CONTRACTING

The Company shall be entitled to sub-contract on any terms the whole or any part of the services and any and all duties whatsoever undertaken by the Company.

 

22. INSURANCE

No insurance will be arranged except upon express instructions given in writing by the Customer and accepted by the Company. All insurances arranged by the Company are subject to the usual exceptions and conditions of the policies of the insurance company or underwriters taking the risk.  The Company shall not be under any obligation to arrange a separate insurance on each consignment but may declare it on any open or general policy.  Should the insurers dispute their liability for any reason the insured shall have recourse against the insurers only and the Company shall not be under any responsibility or liability whatsoever in relation thereto 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 its Customer. In so far as the Company agrees to arrange insurances, the Company acts solely as the agent of the Customer using reasonable effects to arrange such insurance. The Company does not warrant or undertake any such insurance will be accepted by the insurance company or underwriters.

 

23. CARRIER

Where the Company is or is deemed to be a carrier under a contract subject to legislation compulsorily applicable thereto, the Company shall be entitled to all rights immunities exceptions and limitations conferred on the carrier by virtue of such legislation and these conditions shall be void to the extent that they are inconsistent with such rights, immunities, exceptions and limitations, but no further.

 

24. CONSIGNMENT

Where goods are consigned:

a)On terms that they shall be paid for on delivery and, if for any reason, payment is not made in full; or

b)On terms that the Company shall only deliver the goods to the consignee on production of a Forwarders Certificate of Transport, House Bill or Lading, Air Waybill, delivery order or similar document, and owing to the failure to demand such a document the goods are delivered to the consignee before it has paid for them in full, then the Company may, at its absolute discretion, reimburse the Customer with the amount of payment not so made, whereupon the Customer shall, on request, assign to the Company by an instrument in writing the whole of the Customer’s title to or interest in the goods and the right to receive payment there for, and shall co-operate fully with the Company in enforcing all rights so assigned.

 

25. Notwithstanding any agreement or arrangement between the Customer and a consignee to the contrary, the Customer shall remain liable to the Company for any charges in respect of any transaction until such charges have been satisfied or the balance of any charges which shall remain at any time unpaid.

 

26. The Company shall not be liable to recognise any agreement between any Customer and a consignee in respect of the payment of the Company’s charges.

 

27. LIABILITY AND INDEMNITY

(a)The Customer shall save harmless and indemnify and keep indemnified the Company from and against all claims, liabilities, losses, damages, costs and expenses (including without limitation all duties, taxes, imposts, levies, deposits, fines and outlays of whatsoever nature levied by any authority) arising out of the Company acting in accordance  with the Customer’s instructions, or arising from a breach of warranty or obligation by the Customer, or arising from the Customer’s inaccurate or incomplete or ambiguous information or instructions, or arising from the negligence of the Customer or owner.

(b)Advice and information, in whatever form as may be given by the Company, are provided by the Company for the Customer only and the Customer shall save harmless and indemnify and keep indemnified the Company from and against all claims, liabilities, losses, damages, costs and expenses arising out of any other person relying on such advice or information. Except under special arrangements previously made in writing, advice or information which is not related to specific instructions accepted by the Company is provided gratuitously and without liability.

(c)The Customer undertakes that no claim shall be made against any officer, servant, agent or sub-contractor of the Company which imposes or attempts to impose upon them any liability in connection with any services provided or to be provided by the Company.  If any such claim should nevertheless be made the Customer shall indemnify the Company against all consequences thereof. Without prejudice to the foregoing every such offer, servant agent and sub-contractor shall have the benefit of all provisions herein benefiting the Company as if such provisions were expressly for his or its benefit.  For the foregoing purposes, the Company contracts for itself as well as agents for all the aforesaid persons.

(d)The Customer shall defend, indemnify and hold harmless the Company from and against all claims, costs and demands whatsoever and by whomsoever made or preferred in excess of the liability of the Company under the terms of these conditions, and without prejudice to the generality of the foregoing this indemnity shall include (without limitation) all claims, costs and demands arising from or in connection with the negligence of the Company, its officers, servants, agents or sub-contractors.

(e)The Customer shall defend, indemnify and hold harmless the company in respect of any general average or any claims of a general average nature which may be made on the Company and the Customer shall provide such security as may be required by the Company in this connection.

 

28. The Company shall not be liable under any circumstances for any loss, damage or expense arising from or in any way connected with marks, weight, numbers, brands, contents, quality or description of any Goods.

 

29. The Company shall not in any circumstances be liable for indirect or consequential loss and/or damages arising from wastage, spoilage or the deterioration of any goods or of the loss of market for any goods or for any other damages arising from or attributable to delay in forwarding or in transit or failure (not amounting to wilful negligence) to carry out the instructions given to it.

 

30. Perishable goods which are not taken up immediately upon arrival or which are insufficiently addressed or marked or otherwise not identifiable, may be sold or otherwise disposed of without any notice to the Customer or consignees of the Goods and payment or tender of the nett proceeds of any sale after deduction of charges shall be equivalent to delivery.

 

31. NOXIOUS, DANGEROUS & HAZARDOUS GOODS

Except under special arrangements previously made in writing, the Company will not accept transactions relating to noxious, dangerous, hazardous or inflammable or explosive goods or any goods likely to cause damage. Any person delivering such goods to the Company or causing  the Company to handle or deal with any such Goods except under special arrangement previously made in writing shall be liable for all loss or damage caused thereby  and shall indemnify the Company against all penalties, claims, damages, costs and expenses arising in connection therewith and the Goods 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 so 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.

 

32. NATURE OR VALUE OF GOODS

The Company shall not be obliged to make any declaration for the purpose of any statute or contract as to the nature or value of any goods or as to any special interest in delivery unless required by law or expressly instructed by the Customer in writing and:

(a)in the case of goods having a value exceeding the units of account contained in article 4 rule 5 of Schedule of the Carriage of Goods by Sea Act 1991 the value will not be declared or inserted in the Bill of Lading for the purpose of extending the carrier’s liability except upon express instructions given in writing by the Customer

(b)in the case of carriage by air, no optional declaration of value to increase the air carrier’s liability under the Civil Aviation (Carrier’s Liability) Act 1959 or any of the schedules hereunder will be made except upon express instructions given in writing by the Customer.

(c)In all other cases, where there is a choice of tariff rates 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 Customer’s risk or other minimum charges unless express instructions in writing to the contrary are given by the Customer.

 

33. BULLION

Except under special arrangements previously made in writing the Company will not accept or deal with bullion, coins, precious stones, jewellery, valuables, antiques, pictures, livestock or plants.  Should the Customer nevertheless deliver any such goods to the Company of cause the Company to handle or deal with any such goods otherwise than under special arrangements previously made in writing, the Company shall be under no liability whatsoever for or in connection with the goods or any part thereof (including without limitation any loss or damage or non-delivery or mis-delivery or delay) howsoever caused and notwithstanding that the value may be shown, declared or indicated on any documents accompanying the shipment.

 

34. DISPOSAL OF GOODS

The Company shall be entitled, at the expense of the Customer, to sell or dispose of:

(a)on 21 days notice in writing to the Customer or, where despite reasonable efforts the Customer cannot be traced, after the goods have been held by the Company for 90 days: all goods which, in the opinion of the Company, cannot be delivered either because they are insufficiently or incorrectly addressed or because they are not collected or accepted by the consignee or for any other reason; and

(b)without notice: Perishable goods (including animals) which are not taken up immediately on arrival or which are insufficiently or incorrectly addressed or marked or which in the opinion of the Company would be likely to perish in the course of the carriage, storage or handling.

 

35. CLAIMS

Any claim by the Customer against the Company shall be in writing and notified to the Company:

(a)in the case of damage to goods, within 14 days of delivery thereof;

(b)in the case of delay in delivery or non-delivery, within 14 days of the date when the goods should have been delivered; and

(c)in any other case, within 14 days of the event giving rise to the claim.

Any claim not made and notified as aforesaid shall be deemed to be waived and absolutely barred. No claim of any kind against any servant or agent 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 against any forwarding agent employed by the Company or against any of their respective servants or agents on any grounds whatsoever. “Claim” shall include, but not be limited to, any action, proceedings or resort to arbitration or a Court of Law.

 

36.1. SPECIAL LIABILITY

Where the Company contracts as principal for the performance of the Customer’s instructions, the Company undertakes to perform, or in its own name to procure, the performance of the Customer’s instructions and, subject to the provisions of these conditions, shall be liable for the loss of or damage to the Goods occurring from the time that the Goods are taken into its charge until the time of delivery.

36.2. Where:

(a)the Company contracts as a principal and sub-contracts the performance of the Company’s services; and

(b)it can be proved that the loss of or damage to or in respect of the goods arose or was caused whilst the goods were in the care or custody of the sub-contractor;

the Company shall have the full benefit of all rights, limitations and exclusions of liability available to the sub-contractor in the contract between the Company and the sub-contractor and in any law, statute or regulation and the liability of the Company shall not exceed the amount recovered, if any, by the Company from the sub-contractor.

36.3. Notwithstanding other provisions in these conditions, if it can be proved where the loss of or damage to the Goods occurred, the Company’s liability shall be determined by the provisions contained in any international convention or national law, the provisions of which:

(a)cannot be departed from by private contract, to the detriment of the claimant; and

(b)would have applied if the claimant had made a separate and direct contract with the actual provider of the particular service in respect of that service or stage of carriage where the loss or damage occurred and received as evidence thereof any particular document which must be issued if such international convention or national law shall apply.

36.4. Notwithstanding other provisions in these conditions, if it can be proved that the loss or of damage to the goods occurred at sea or on inland waterways and the provisions of clause 35.2 do not apply, the Company’s liability shall be determined by the Hague-Visby Rules.  Reference in the Hague-Visby Rules to carriage by sea shall be deemed to include reference to carriage by inland waterways and the Hague-Visby Rules shall be construed accordingly.

36.5. Notwithstanding the provision of clause 35.2, 35.3 and 35.4, if the loss of or damage to the goods occurred at sea or on inland waterways, and the owner, charterer or operator of the carrying vessel is entitled to limit its liability at law and establishes a limited fund, the liability of the Company shall be limited to the proportion of such limitation fund as is allocated to the Goods.

36.6. In the event of any inconsistency between these conditions and the conditions of any Bill of Lading or Air Waybill issued by or on behalf of the Company as principal, the conditions of any such Bill of Lading or Air Waybill shall prevail to the extent of such inconsistency but no further.

 

37.1. AIR CARGO

Where the Company acts as a principal in respect of a carriage of goods by air, the following notice is hereby given:

If the carriage involves an ultimate destination or stop in a country other than the country of departure, the Warsaw Convention may be applicable and the Convention governs and in most case limits the liability of carriers in respect of loss of or damage to goods.  Agreed stopping places are those places (other than the places of departure and destination) shown under requested routing and/or those places shown in carrier’s timetables as scheduled stopping places for the route. The address of the first carrier is the airport of departure.

37.2. Notwithstanding any other provision of these conditions, where the Company acts as a principal in respect of a carriage of goods by air, the Company’s liability in respect of loss of or damage to such goods shall be determined in accordance with the Warsaw Convention.

37.3. If the Hamburg Rules should be held to be compulsorily applicable to any carriage of goods by sea undertaken by the Company as principal, these conditions shall be read subject to the provisions of the Hamburg Rules and any term of these conditions that is repugnant to the Hamburg Rules shall be void to the extent of such repugnancy but no further.

 

38. CONSENT TO CREDIT CHECK - PRIVACY ACT

By signing this form the Customer acknowledges and authorizes the Company pursuant to the provisions of the Privacy Act to:-

(a)seek from or give to a Credit Reporting Agency personal information about the Customer at any time after signing this form; and

(b)contact any trade references or other credit providers and acquire from them or give to them personal information in relation to the Customer and its credit worthiness.