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Contents:
1._DEFINITIONS
2._INTERPRETATION
3._APPLICATION
TRADING CONDITIONS (September
2008)
THESE CONTRACTUAL CONDITIONS
APPLY TO ALL SERVICES PROVIDED BY
J.J. LAWSON PTY LTD ABN 82 001
279 901
1.
DEFINITIONS:
In these Trading Conditions, the following defined terms will
have the following defined meanings.
(1)
ABN
means the Australian Business Number of the Customer pursuant to
the GST Law
(2)
ACS
means the Australian Customs Service
(3)
Agreement
means these Trading Conditions
(4)
AQIS
means the Australian Quarantine Inspection Service
(5)
Assets
means all assets, goods, documents and records of the Customer
held by the Company as part of the contractual terms and trading
conditions, and include, without limitation, the Goods
(6)
ATO
means the Australian Taxation Office
(7)
Authorisation
means the appointment and authorisation of the Company to act on
behalf of the Customer on the terms and conditions of the
Authorisation and this Agreement, which shall be read as one.
(8)
Authorised Signatory
means the party who signs the Authorisation on behalf of the
Customer
(9)
BAS Service
means a BAS Service as defined in Section 251L of the Income Tax
Assessment Act 1936
(10)
Carriage
means vehicles and conveyances of all kind including acts in
furtherance of an act of carriage by another or a specific
means, whether by air, sea or land transport
(11)
Carrier
means any party involved in the carriage of Goods whether by
airfreight, seafreight or land transport
(12)
Company
means J.J. Lawson Pty Ltd (holder of Customs Brokers Licence
number 00971) and the nominees, agents, sub-agents and employees
of the Company
(13)
Container weight
declaration
or a complying container weight declaration is a
declaration that includes the following information:
a)
the number and other particulars of
the freight container necessary to identify the container;
b)the name, home
address or business address in Australia of the responsible
entity;
c)
the date of the declaration;
d)the weight of the
freight container and its contents; and
e)
any other information as may be
required by Commonwealth, State or Territory legislation from
time to time.
(14)
Customer
means the entity or person,
a)
named in the Authorisation and will include all employees,
officers, agents and contractors of the Customer;
b)
that the Company provides work or services to; or
c)
that engages the Company to perform work on its behalf.
(15)
Customs Act
means the Customs Act 1901 (as amended), and any succeeding
Legislation and any regulations made pursuant to the Customs Act
(16)
Customs Related Law
has the same meaning as in Section 4 of the Customs Act
(17)
Dangerous Goods
means cargo which is noxious, hazardous, inflammable, explosive
or offensive (including radioactive materials) or may become
noxious, hazardous, inflammable, explosive or offensive or
radioactive and may become liable to cause damage to any person
or property whatsoever.
(18)
Debts
means all amounts owing by the Customer to the Company on any
account whatsoever
(19)
Fees
means the fees charged by the Company for provision of the
Services
(20)
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
(21)
Government Authorities
means, without limitation, all Government Departments with
responsibility for the import and export of goods, the
collection of revenue on the import and export of goods and the
transport of those goods to include, without limitation, ACS,
AQIS, the ATO and the RSE
(22)
GST
has the same meaning as under the GST Law being the Goods and
Services Tax imposed under the GST Law
(23)
GST Law
means the A New Tax System (Goods and Services Tax) Act 1999
(24)
GST Rate
means the rate of GST under the GST Law
(25)
Laws
means any laws or regulations of any of the Commonwealth of
Australia, or any of the States, Territories or Municipalities
of Australia
(26)
Occupational Health and Safety
means the Occupational Health and Safety Act 2000 (NSW)
(as amended), all associated regulations or guidelines and any
other relevant State or national occupational health and safety
legislation or guidelines
(27)
Privacy Laws
means the Privacy Act 1998 (Cth), all associated
regulations or guidelines, and any other associated or relevant
State or national privacy legislation, regulations or guidelines
(28)
Reporting Obligations
means the obligations 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.
(29)
RSA
means those State and Commonwealth Government Authorities in
Australia responsible for road safety and the laws governing the
carriage of goods by road
(30)
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 including without limitation:
(a)
to make any Reports, Entries and Declarations required by any
Government Authorities;
(b)
to quote the ABN as may be required under the GST Law;
(c)
to provide all necessary information and complete all necessary
documentation and reports for the purposes of any Government
Authorities; and to enter into contracts with Sub-contractors on
behalf of the Customer to enable the carriage, import, export or
transportation of the Goods.
(31)
Standards
means:
(a)
Australian Standard AS/NZS ISO 9001:2000 in relation to the
operation of the Company's business; and
(b)
Australian Standard AS/NZS 4801:2000 relating to occupational
health and safety in providing Services
(32)
Sub-contractor
means any third party appointed by the Company to assist in the
provision of the Services
(33)
Supply
means the same as in the GST Law
(34)
Taxable Supply
means any Supply under which the Company is or may become liable
to pay GST
(35)
Vessel
means any vessel, vehicle or aircraft used to effect carriage of
the Goods, whether by sea, land or air.
TOP
2. INTERPRETATION
(1)
These Trading Conditions and any collateral agreements made by
the Company with the Customer wherever made shall be governed
and construed according to the laws of New South Wales and shall
be subject to the exclusive jurisdiction of the Courts of New
South Wales.
(2)
If these Trading Conditions are 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 and notwithstanding that the Services have been
provided, the Goods delivered as directed by the Customer or the
Authorisation having expire or been terminated.
(4)
Unless written notification to the contrary is given by the
Customer to the Company at or prior to entering into these
Trading Conditions 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 interpreting these Trading Conditions the singular includes
the plural and vice versa; words importing one gender includes
the 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 the Company approves
such waiver or variation in writing.
(7)
Where any provision (or part thereof) of these Trading
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.
(8)
References to clauses are references to clauses in the Trading
Conditions.
(9)
Headings have no effect on interpretation of the Trading
Conditions.
(10)
Terms not defined in these Trading Conditions will have the same
meaning as defined in the Customs Act.
TOP
3. APPLICATION
Clauses 1 and 2 will apply to the Trading Conditions
Trading Conditions
Nature of Services
(1)
The Company carries on business as a licensed Customs Broker and
forwarding agent. All Services provided by the Company are
governed solely by these Trading 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, to the extent it
has application to J.J. Lawson Pty Ltd, except as provided for
in these Trading Conditions.
(2)
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.
(3)
No modification amendments or other variation of the Trading
Conditions, except as may be set out in the Authorisation shall
be valid and binding on the Company unless made in writing and
duly executed by and on behalf of the Company.
(4)
The Company acknowledges that where, terms of Carriage are
limited pursuant to convention, statute, law, bill of lading or
airway bill, and the transport of the goods extends or requires
transport outside and beyond the terms provided for in that
convention, statute, law, bill of lading or airway bill then the
Customer may be required to enter into a further contractual
agreement with the forwarder or carrier regarding that portion
of transport in order to limit liability on behalf of the
forwarder or carrier, or where the transport was unforeseen, the
limitation of liability provisions in place for the foreseen
transport will extend to the unforeseen transport, even where
that liability provision does not envision transport of that
kind.
Acceptance of Trading Conditions
(5)
The Authorized Signatory acknowledges and agrees that it has
received the Trading Conditions, understands the Trading
Conditions and by signing the Authorisation, the Customer will
be bound by the Trading Conditions.
(6)
If the Customer does not acknowledge receipt or does not agree
it has received the Trading Conditions, then regardless these
Trading Conditions shall apply to and the Customer will be bound
by their terms.
Communications with the Company
(7)
Wherever it is necessary, for the purpose of these Trading
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 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.
(8)
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, or any 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.
Ability to Appoint Agents, Sub-contractors and Third Parties
(9)
The Company reserves complete freedom to decide the manner or
procedure to be adopted for any or all of the various acts that
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 the 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.
(10)
Subject to and in accordance with these Trading Conditions, the
Company agrees and the Customer hereby employs and authorises
the Company as agent for the Customer to contract either in its
own name as principal or as agent for the Customer with any
Sub-contractor for the carriage, movement, transport or storage
of the Goods or for the performance of all or any part of the
Services pursuant to or ancillary to these Trading Conditions.
Any such contract may be made upon the terms of contract used by
the Sub-contractor with whom the Company may contract for the
Services and may be made upon the terms and subject to the
conditions of any special contract which the Sub-contractor may
in any particular case require, including in every case any term
that the Sub-contractor may employ any person, firm or company
for performance of the Services so contracted for.
Fees, Quotations, Payments, Recovery of Fees and GST
(11)
J.J. Lawson Pty Ltd 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 sub-clause 3(22) 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, re-measure or revalue the Goods (or request
same) and charge additional fees accordingly.
(12)
Quotations as to fees and other charges are given on the basis
of immediate acceptance in writing and subject to the right of
withdrawal or revision by the Company at any time. 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, quotation and charges are subject to
revision accordingly with or without notice to the Customer.
(13)
Quotations not accepted in writing (which includes quotations
not accepted in writing within any time frame prescribed in the
quotation) will not be binding on J.J. Lawson Pty Ltd. Should
the Customer not accept a quotation in writing but still require
J.J. Lawson Pty Ltd to provide any services, J.J. Lawson Pty Ltd
may at its own discretion apply the fees and charges set out in
any unaccepted quotation or charge its standard schedule of
fees.
(14)
The Customer acknowledges that by engaging J.J. Lawson Pty Ltd
to provide work or services to it or on its behalf or organizes
the transportation or transports goods for the Customer, such
engagement constitutes an agreement between the parties (whether
or not it is in writing).
(15)
JJ Lawson Pty Ltd reserves the right to charge the Customer fees
and charges in addition to any quoted or indicated fees or rates
or its standard schedule of fees, in regard to disbursement
costs paid out on behalf of the Customer and any associated
administrative matters (including matters relating to the GST or
BAS Services) or where administration or other services are
required and supplied to facilitate the completion of any work
or in regard to any issue related to any work previously or
still to be performed.
(16)
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.
(17)
Any costs or charges whatsoever or howsoever incurred by
J.J. Lawson Pty Ltd in regard to the recovery of any debts owed
to J.J. Lawson Pty Ltd may, subject to any statutory
restrictions, be charged by J.J. Lawson Pty Ltd or such parties
as authorised by J.J. Lawson Pty Ltd to recover such debts in
addition to the debt owed and may be recovered in any court of
competent jurisdiction.
(18)
The Customer consents to J.J. Lawson Pty Ltd disclosing
information to third parties such as credit reporting agencies
and debt recovery agencies for the purposes of debt collection.
(19)
This subclause applies if the Company is or may become
liable to pay GST in relation to any Supply under these Trading
Conditions.
(a)
Unless otherwise stated, all fees and charges in any quotation
are exclusive of the GST imposed under the GST Law.
(b)
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 or Sub-contractors which shall be payable at
the same time as the GST-exclusive consideration.
(c)
The Customer must also pay GST on the Taxable Supply to the
Company, calculated by multiplying the GST exclusive
consideration by the GST Rate.
(d)
GST shall be payable by the Customer without any deduction or
set-off for any other amount at the same time as the GST
exclusive consideration is payable.
(e)
The Company agrees to provide the Customer with a Tax Invoice to
enable it to claim Input Tax Credits.
(f)
If the Customer defaults in the payment on the due date of any
amount payable under this subclause then without
prejudice to any other remedies of the Company and upon demand
by the Company, the Customer shall pay to the Company an amount
equal to the amount of any damages or interest or additional GST
that may become payable by the Company due to the default of the
Customer.
(20)
All amounts due to the Company in Australia are payable in
Australian dollars. The Company is entitled to charge a currency
conversion premium when converting receivables into Australian
currency.
(21)
If any amounts payable due under any agreement between the
Company and the Customer (including, without limitation, amounts
payable pursuant to subclause 3(23)(1) or fees payable
for Services provided by the Company) are not made within seven
days of the due date, the Customer will be in default and
without limiting any other rights of the Company, the Customer
shall pay to the Company, by way of liquidated damages,
interest at the rate of 24 per cent per annum on the amount
outstanding calculated from the due date until payment is made
in full. The Company may take any legal proceedings to recover
amounts owing pursuant to these Trading Conditions.
(22)
The Company reserves the right to offset any amounts receivable
from the Customer against any amounts payable to that Customer
or any company affiliated with the Customer or any Related Body
Corporate of the Customer. This right exists irrespective of the
date the liability has been created or debt incurred with the
Company.
(23)
(1) The Company, its servants or agents shall have a special and
general lien on the Assets and a right to sell the Assets
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 of such a sale including
reasonable legal fees. The lien and rights granted by this
subclause shall survive delivery of the Assets and the
Company shall be entitled to retain the proceeds of sale of the
Assets in respect of any outstanding amounts referred to in this
clause.
(2) The Company sells or otherwise disposes of such Assets
pursuant to subclause 3(23)(1) as principal and not as
agent and is not the trustee of the power of sale.
(3) The lien created by subclause 319(1) does not limit or
exclude any other liens which arise by operation of law or
pursuant to any Laws.
Warranties by the Customer
(24)
(1) The Customer (on behalf of itself, the consignor and the
consignee) warrants to the Company that:
a)
it will provide all documents, information and assistance
required by the Company to comply with the requirements of the
Government Authorities in an accurate and timely fashion as
required by those Government Authorities;
b)
it will retain all documents or records in the manner required
by the Government Authorities;
c)
it will observe all provisions of any Government Authorities;
d)
it will maintain as confidential the terms of the Authorisation
and these Trading Conditions;
e)
it has complied with all laws and regulations of any Government
Authorities relating to the nature, condition, packaging,
handling, storage and carriage of the Goods including all Laws
prescribed by the RSA;
f)
the Goods are packed to withstand ordinary risks of handling
storage and carriage, having regard to their nature;
g)
the Goods are not Dangerous;
h)
the Goods and their carriage do not contravene any Laws;
i)
the Company is the legal owner of the Goods or legally entitled
to authorise their carriage; and
j)
it will notify the Company of any issue or event that may affect
the Company's ability to adhere to the Standards in the
provision of the Services;
k)
it will comply with all Privacy Laws in relation to this
Agreement, the Goods and the Services at all times and will
notify the Company of any issues or requirements under such laws
in relation to this Agreement or Services of which the Customer
should be aware;
l)
it will comply with all Occupational Health and Safety Laws in
relation to this Agreement, the Goods and the Services at all
times, and will notify the Company of any issues or requirements
under such laws in relation to this Agreement or the Services of
which the Customer should be aware, or which may affect the
Company's ability to comply either with the Occupational Health
and Safety Laws or the Standards.
m)
it will advise The Company of any or
all matters listed in Schedule A of these Trading Conditions
that affect it’s imports or exports;
n)
and accepts that the
Trading Conditions also apply to the container or containers or
other packaging containing the goods and to any pallet or
pallets delivered with the goods.
o)
the Customer is responsible for the
conformity of any containers, packaging and pallets with any
requirements legal, contractual or otherwise and for any
expenses incurred by the Company arising from any failure to so
conform;
p)
where goods are
delivered to it on CHEP or LOSCUM pallets, it accepts that this
is done on the basis of exchange for like CHEP OR LOSCUM
pallets, respectively. If like CHEP or LOSCUM pallets cannot be
provided, the goods will unpack from the pallets and any
additional costs will be to the account of the Customer.
q)
where goods are delivered in shipping
containers (other than shipper owned shipping containers) it is
the Customers responsibility to advise the Company (in writing
whether by facsimile, email or otherwise) when the shipping
containers have been unpacked and are available for pick-up and
accepts that the Company will accept no liability for demurrage
or other costs incurred because of delays in notification of
when the shipping containers are available for pick-up;
r)
neither The Company
nor any transport company engaged by The Company will be liable
for any demurrage or other charges imposed for the return of
shipping containers outside the relevant free time period
allowed and the Customer agrees to indemnify the Company against
any and all such claims made against it.
s)
and accepts that the Company is
entitled to make a charge to the Customer for handling invoices
and other claims for fees relating to the non-return or the
alleged non-return of shipping containers inside the relevant
free time allowed;
t)
the Customer shall be liable for and
shall indemnify the Company against all claims made in regard to
shipping containers returned in a damaged or unclean condition.
u)
and accepts that it is liable for any
duty, tax, impost or outlay of whatsoever nature levied by
government authorities at any port or place for or in connection
with its goods and for any payment, fine, penalty, expense, loss
or damage made, incurred or sustained by the Customer or the
Company, whether or not arising by reason of any inaccuracy with
or omission or failure to disclose, information, or incorrect
description rating or valuing for duty or taxation purposes, the
Customers goods or in regard to any other particulars or matters
including rates of taxes or duties and, notwithstanding any
negligence on the part of J.J. Lawson Pty Ltd, the Customer
indemnifies the Company against any such loss, damage, expense,
fine or penalty or associated claims arising from any such
inaccuracy, omission or failure to disclose or any incorrect
description rating or valuing for duty or taxation purposes of
the Customers goods or in regard to any other particulars or
matters including rates of taxes or duties.
(2) The Customer acknowledges that a breach or failure to
observe all or any of the warranties in subclause 3(24)(1)
could lead to penalties or damages to the Customer and also
to the Company and the Customer agrees to provide the indemnity
to the Company on account of such penalties or damages pursuant
to subclause 3(25).
Indemnity by the Customer
(25)
(1)Without limiting the effect of these Trading Conditions, the
Customer agrees to indemnify and keep indemnified the Company
for:
a)
amounts of Customs Duty, GST and other payments made to
Government Authorities by the Company on behalf of the Customer;
b)
any penalties payable by the Company (pursuant to a Court order
or pursuant to an Infringement Notice) due to the Customer:
(i) providing information that is incorrect or misleading;
(ii) omitting to provide material information required to the
Government Authorities;
(iii) providing information in a manner which does not enable
the Company to comply with the requirements of the Government
Authorities for reporting in prescribed periods; and
(iv) failing to provide information or documentation requested
by the Company;
c)
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;
d)
penalties associated with providing misleading or deceptive
information regarding the status of Goods, whether pursuant to
the Trade Practices Act 1974 (Cth) or other legislation;
e)
penalties imposed by any RSA for any breach of the laws
governing to the carriage of goods by road;
f)
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;
g)
demurrage or other charge for detention or failure to return
items (including shipping containers) provided by the Company or
others pursuant to contracts with other parties;
h)
liabilities or costs incurred by the Company on behalf of the
Customer associated with the transport of Goods 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);
i)
damages payable by the Company arising from or contributed to by
errors or misrepresentations by the Customer;
j)
losses or damage incurred by the Company due to a breach by
Customs of any of the warranties in this subclause;
k)
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;
l)
any Customs Duty, GST or other charge assessed against the
Company in relation to the Goods or Services;
m)
any charges levied by Government Authorities for examination and
treatment of the Goods.; and
n)
any costs or charges incurred by the Company pursuant to
subclause 3(37), (38), (39) and (40).
(2) The Customer agrees to pay any amounts claimed
pursuant to the indemnity in subclause 3(25)(1) within 7
days of demand by the Company.
(3) The nature of the indemnity provided pursuant to
subclause 3(25)(1) will include, without limitation, all
penalties, liabilities and damages assessed against the Company
and its officers and employees, together with all legal costs
incurred by the Company (calculated on a solicitor/client
basis). The indemnity shall continue in force and effect whether
or not the Goods have been pillaged, stolen, lost, damaged or
destroyed and shall not be affected in any way if such
pillaging, stealing, loss, damage or destruction has occurred or
been brought about wholly or in part by the negligence or the
alleged negligence or any default, omission, neglect or default
or any breach of duty of obligation of the Company, its servants
or agents.
(4)
The Company may execute all or any of its rights pursuant to
subclause 3(23) to recover any amounts owing pursuant to
this subclause 3(25).
(5) The
Customer acknowledges and accepts that J.J. Lawson Pty Ltd is
required to keep documents and other records of the Customer in
accordance with Sections 240 and 240AB of the Customs Act 1901
and may be required to produce such documents to an authorised
officer of the Australian Customs Service.
Insurance
(26)
(1) The Company is not a financial
services provider and does not arrange insurance on behalf of
the Customer in respect of its goods, except as set out in
sub-clause (3) and under no circumstances will the Company
itself insure the Customers goods.
(2) It is the responsibility of the Customer to ensure
that its goods are adequately insured against all risks. The
Company shall not be liable for any loss arising because of the
Customers failure to insure or adequately insure its goods.
(3) 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. All such insurances effected by the Company are
subject to the usual exceptions and conditions of the policies
of the insurer or underwriter taking the risk. 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.
Storage and Transport
(27)
Subject to express instructions in writing given by the Customer
and accepted by the Company in writing (and without limiting the
generality of sub clauses 3(9) and (10), 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 Sub-contractors 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.
(28)
(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 the case of carriage by land, or any carriage ancillary
to the carriage mentioned above and not expressly provided for
under any contract within these Trading Conditions, under
convention or under any statute or law, the Customer agrees that
the value of the Goods shall not be declared or inserted into a
contractual document or as part of the trading terms for the
purpose of extending the forwarder or carrier’s liability under
any circumstance except upon express conditions agreed to in
writing by the carrier or forwarder who expressly elect to waive
that right.
(4) In all other cases where there is a choice of charges by
carriers, warehousemen, stevedores or others according to the
extent of the liability assumed by the carriers, warehousemen,
stevedores 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.
(5)
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 to 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.
(6) All freight moved by air is subject to volumetric conversion
on the basis of one kilo being the equivalent of six thousand
cubic centimetres. Freight moved by other means is subject to
volumetric conversion on the basis of relevant industry
standards or as modified by the carrier’s standard trading
conditions.
(7) The Customer
acknowledges and accepts
all liabilities and responsibilities that attach to being the
entity responsible for the issuance of Container Weight
Declarations under any Commonwealth, State or Territory
legislation dealing with container weight declarations complying
container weight declarations or equivalent documents and
indemnifies the Company (and JJL Transport Pty Ltd), their
employees and any sub-contractors thereof and their respective
drivers, from any claims or actions whatsoever arising as a
result of any Commonwealth, State or Territory legislation
dealing with container weight declarations, complying container
weight declarations or equivalent documents.
Perishable, Non-deliverable, Hazardous and Damaged Goods
(29)
(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 and may be
deducted from the proceeds of the sale of the Goods. 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 subclauses 3(29)(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.
(4) In the event that any sale of Goods pursuant to subclause
3(29)(2) does not provide sufficient proceeds to discharge
all liability of the Customer to the Company, the Company
acknowledges that it is not released from the remainder of the
liability to the Company merely by sale of the Goods.
Destruction of Dangerous Goods
(30)
In the event that the Goods are found to be Dangerous 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 and
dangerous goods in the legislation governing carriage by rail in
the States and Territories of Australia.
Railway Declaration
(31)
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, railways authority or provider of
railways in any State or any airline or road transport authority
in respect of any Goods falling within the definition of that
body:
(1) of dangerous or hazardous goods; or
(2) of goods liable to be stored in the open, unless written
instructions to that effect are given to the Company by the
Customer.
Pillaged Goods
(32)
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.
Storage of Goods pending delivery
(33)
Without limiting the effect of clause 26, 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.
C.O.D. Goods
(34)
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.
Limitation of Liability, Force Majeure and Indemnity from
Liability to Third Parties
(35)
Without limiting the effect of subclause 3(25), 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:
(1) any liability to pay amounts to Government Authorities
(including, without limitation, Customs Duty or GST) that would
not have otherwise been payable or any penalties (including
penalties imposed directly on the Company, its 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 whether imposed by Court or
Infringement Notice);
(2) any liability concerning the making of any statement,
forecast, information or giving advice in relation to the
liability of the Customer to pay any amounts owing to any
Government Authorities;
(3) any liability in respect of the loss, misdelivery,
deterioration, non-delivery, contamination, evaporation or
damage to the Goods or consequential loss arising therefrom
however caused;
(4) any loss or depreciation of market value attributable to
delay in forwarding the Goods or failure to carry out
instructions of the Customer;
(5) 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;
(6) loss or damage resulting from fire, water, explosion or
theft;
(7) loss, damage or delay occasioned by examination of the Goods
by any of the Government Authorities;
(8) loss, damage or delay occasioned by treatment of the Goods
by any of the Government Authorities (including without
limitation, any fumigation or decontamination or other treatment
by AQIS);
(9) any costs incurred by the Company on behalf of the Customer
to any other person in relation to the carriage of the Goods;
and
(10) loss, damage or delay occasioned by delay in the carriage
of the Goods or handling of the Goods in the course of the
carriage of the Goods.
(36)
The Customer undertakes and warrants that neither it, nor any
other party that has an interest in the Goods or Services, shall
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.
(37)
The Company shall not be liable in any event for any special,
incidental, or consequential damages, including, but not limited
to, loss or profits, income, utility, interest, or loss of
market, whether or not the Company had knowledge that such
damage might be incurred.
(38)
The Company and Customer acknowledge that Goods moving by
airfreight are subject to the applicable international treaties
including the Convention for the Unification of Certain Rules
relating to International Carriage by Air, signed at Warsaw, the
12th October 1929, or that Convention as amended by the Hague
Protocol 1955. The Customer’s recovery of any loss or damage is
against the airline carrier and is limited in accordance with
these or any other conventions that may be applicable. In the
event of any loss or damage suffered by the Customer whilst the
Goods are in the possession of the airline carrier, the Company
will seek to recover on behalf of the Customer from the
principal airline carrier amounts payable by these conventions
as they are applicable. The Customer will indemnify, defend and
hold the Company harmless against any claims for loss or damage
to their Goods incurred whilst they were in the possession of
the airline carrier.
(39)
The Company and Customer acknowledge that Goods moving by
seafreight are subject to the applicable international treaties
including the International Convention for the Unification of
Certain Rules relating to Bill of Lading signed at Brussels on
August 25, 1924 (the Hague Rules), or those rules as amended by
the Protocol signed at Brussels on February 23, 1968 (the Hague
Visby Rules) and the SDR Protocol (1979). The Customer’s
recovery of any loss or damage is against the seafreight carrier
and is limited in accordance with these or any other conventions
that may be applicable. In the event of any loss or damage
suffered by the Customer whilst the Goods are in the possession
of the seafreight carrier, the Company will seek to recover on
behalf of the Customer from the carrier amounts payable by these
conventions as they are applicable. The Customer will indemnify,
defend and hold the Company harmless against any claims for loss
or damage to their goods incurred whilst they were in the
possession of the seafreight carrier.
(40)
The Company and Customer acknowledge that Goods moving by
airfreight or seafreight may necessary involve a part of
transport undertaken by other means in order to comply with the
terms of carriage under this or any contract between the
parties. Where this is so, and no international treaty is
applicable which covers the additional transport, the Customer’s
recovery of any loss or damage is against the carrier and is
limited in accordance with the convention applicable for the
majority of the transport, even where that convention does not
envisage liability of the kind of transport concerned. In the
event of any loss or damage suffered by the Customer whilst the
Goods are in the possession of a third party carrier, the
Company will seek to recover on behalf of the Customer from the
carrier amounts payable by these conventions as they are
applicable. The Customer will indemnify, defend and hold the
Company harmless against any claims for loss or damage to their
Goods incurred whilst they were in the possession of the third
party carrier, where such carriage was necessary in order to
comply with the terms of the contract.
(41)
The Company shall not be liable to the Customer for any breach
or failure to performs its obligations under these Trading
Conditions or any damage or loss to Goods resulting from one of
the following:
(1) perils, dangers and accidents of the sea or other navigable
waters;
(2) act of God;
(3) act of war;
(4) act of public enemies;
(5) arrest or restraint of princes, rulers or people, or seizure
under legal process;
(6) strikes or lock-outs or stoppage or restraint of labour from
whatever cause, whether partial or general;
(7) riots and civil commotions;
(8) saving or attempting to save life or property at sea; or
(9) any other cause arising beyond the reasonable control of the
Company, without the actual fault or privity of the Company and
without the actual fault or privity of the agents or servants of
the Company.
(42)
If the occurrence of any event contemplated in subclause
3(41) causes a delay of over 5 Business Days in any
obligation of the Company, then the provision of Services may be
terminated by notice in writing by either party to the other
party.
(43)
Any claim made against the Company, its servants or sub-agents
is limited to the full extent permitted by law, where that
liability has not been expressly excluded or limited by any
convention, statute, law or contract. To the extent that the
liability of the Company is limited by any convention, statute,
law or contract, and that limitation exceeds the limitation of
liability pursuant to these Trading Conditions then the
liability pursuant to that convention, statute, law or contract
shall apply.
(44)
In all cases where these Trading Conditions, statute,
international convention or otherwise do not exclude the
liability of the Company, the liability of the Company
whatsoever and howsoever caused shall be limited to whichever is
the lesser between the value of the Goods the subject of the
Agreement at the time the Goods were delivered to the Company or
Australian $200.
Notification of Liability
(45)
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).
Guarantee by Directors and Shareholders
(46)
(1) If the Customer is a company, the directors and shareholders
of that company will guarantee the Debts and indemnify and keep
indemnified the company against the Debts.
(2) For the purposes of subclause 3(46)(1), the Customer
will ensure that its directors and shareholders will sign any
other documents required by the Company to evidence and confirm
any guarantee and indemnity in the form annexed.
Intellectual Property
(47)
The
Customer acknowledges that the Company shall retain all
copyright and other intellectual property in any documents or
things created by the Company in the course of providing its
Services pursuant to these Trading Conditions.
SCHEDULE A -
What You
Need to Tell Us
The Customer must
advise The Company if any of the following applies to their
past, current or future import or export transactions, where:
a)
any of the Customers
import and export transactions are related party transactions;
b)
the Customer makes
payments to the overseas supplier in respect of goods they
import which are not reflected in the values disclosed on the
import documents provided to The Company;
c)
the Customer makes
payments to third parties on behalf of or at the request of
their supplier, in respect of goods imported by the Customer and
the payments are the value of such payments is not disclosed or
included in the import documents provided to The Company;
d)
the Customer pays
royalties, licence or similar fees that relate to the goods they
import, the value of which is not included or disclosed in the
import documents provided to The Company;
e)
the Customer pays for
charges related to the packing of imported goods, the value of
which are not disclosed or included in the import documents
provided to The Company;
f)
the Customer pays
charges for inland freight and inland insurance which relate to
the goods they import, the value of which is not included or
disclosed in the import documents provided to The Company;
g)
the Customer makes
payments to the overseas supplier that relate to the use, resale
or disposal of the they goods import, the value of which are not
included or disclosed in the import documents provided to The
Company;
h)
the Customer provides
goods or services to their overseas suppliers which are used in
or for the production of the goods the Customer imports, and the
value of such goods or services is not disclosed or included in
the import documents provided to The Company;
i)
the Customer changes
their Australian Business Number or ceases to hold an Australian
Business Number;
j)
the Customer
registers for or ceases to be registered for the Goods & Service
Tax;
k)
the specifications of
the goods the Customer imports change from previous imports;
l)
the Customer pays
commissions in regard to their imported goods, the value of
which is not disclosed or included in the documents provided to
The Company;
m)
the Customer pays for
their goods in a currency other than that shown on the import
documents provided to The Company;
n)
there are any errors
on the import documents provided to The Company;
o)
there are any errors
detected on the Customs Entry created by The Company;
p)
goods cease to be the
product or manufacture of a country to which Preferential Duty
rates are normally claimed;
q)
the Customer is not
the importer of the goods being imported;
r)
the Customer pays
interest to the overseas supplier in respect of imported goods
that is included but not disclosed in the value of the goods as
shown on the import documents provided to The Company;
s)
the Customer pays the
overseas supplier for services supplied in respect of the goods
imported by the Customer and the value of such services are not
disclosed or included in the value of the goods shown on the
import documents provided to The Company.
