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These contractual conditions apply to all services provided by Paul’s Customs and Forwarding Solutions Pty Ltd (“The Company”) and the company accepts instructions to provide services only on these terms.
These trading conditions include provisions which change, reduce or exclude entirely rights which you (the “Customer”) might otherwise have. You should read these terms carefully.
DEFINITIONS:
“Goods” are any goods or items which are the subject of the services provided by the Company to the Customer under this or any other Agreement.
“Services” are the rights benefits, privileges or facilities that are or are to be provided, granted or conferred under a contract for or in relation to the performance of work by the Company for the Customer.
1. The Company carries on business as a customs and forwarding agent and its carriage of goods is merely incidental to that business. The Company is not a common carrier and will accept no liability as such. The company may refuse at its sole and absolute discretion to accept any goods for carriage without assigning any reason.
2. Subject to express instructions in writing given by the Customer and accepted by the Company in writing, the Company reserves to itself complete freedom to decide upon the means, route and procedure to be followed in the handling, storage and transportation of the goods and is entitled and authorized to engage independent third parties to perform all or any of the functions required of the Company upon such terms and conditions as the Company in its absolute discretion may deem appropriate subject to compliance with the Customs Act 1901.
3. The Company is entitled to retain and be paid all brokerages, commissions, allowances and other remunerations customarily retained by or paid to shipping and forwarding agents and (where the Company accepts specific instructions under clause 6 of these conditions to effect insurance) insurance brokers whether declared or otherwise and no such brokerage, commission, allowance or other remuneration shall be payable or allowable to the Customer or its principal (if any).
4. Quotations are given on the basis of immediate acceptance and subject to the right of withdrawal or revision by the Company. If any changes occur in the rates of freight, insurance, premiums, and warehousing, statutory fees or any other charges applicable to the Goods, quotation and charges are subject to revision accordingly with or without notice to the Customer.
5. The Customer, consignor and consignee of the Goods, and their respective agents, if any, shall be bound by and be deemed to warrant the accuracy of all descriptions, values, and other particulars furnished by any one or more of them to the Company for customs, consular and other purposes and shall be liable for any duty, tax, impost, penalty or outlay of whatever nature levied by the authorities at any port or place for or in connection with the Goods and for any payment, fine, expense, loss or damage made, incurred or sustained by the Company in connection therewith, arising by reason of any inaccuracy or omission of any such description, value or other particular and to indemnify the Company against any such loss, damage, expense or fine arising from any such inaccuracy or omission.
6. The Company shall not effect insurance on the Goods except upon receipt of express instructions given in writing by the Customer and the Customer’s written declaration as to the value of the Goods. Any such insurance effected by the Company may be subject to such exceptions and conditions as may be required by the insurance company or underwriter accepting the risk. At the discretion of the Company such insurance may name the Customer or the owner as insured. In the event of any dispute in regard to liability under any such insurance policy for any reason whatsoever the Customer or other insured shall have recourse against the insurer or underwriter only and the Company shall have no liability or responsibility in relation to any such insurance policy.
7. If, as a result of the supply by the Company of services, the Customer sustains loss or damage, payment, fine or expense by reason of any of the following circumstances, namely:
- A requirement under section 243T(1) of the Customs Act that the Customer pay a penalty in accordance with that provision.
- The making of any statement, information, forecast, prediction, or the giving of advice by the Company, in relation to the liability of the Customer to pay any customs duty in relation to the Goods or as to the particular tariff or classification applicable under any Act, whether Federal or State, affecting customs duties or customs tariffs, or any ordinances or regulations in force from time to time.
- The application of an innocent tariff classification under the Customs Tariff Act or an incorrect valuation pursuant to Division 2 of Part VIII of the Customs Act or the incorrect application of a Tariff concession Order or the making of any other error or omission by the Company under the Customs Act, the Customs Tariff Act or any other, legislation affecting the importation or exportation of goods including any by-laws or regulations.
- The loss, mis-delivery, contamination, evaporation or non delivery of or damage to the Goods, or consequential loss arising there from however caused or for any reason whatever;
- Loss or depreciation of market attributable to delay in forwarding or in transit of the Goods or failure to carry out instructions given to it by the Customer;
- Loss, damage, expense or additional cost arising from or in anyway connected with marks or brands on weight, numbers, contents, quality or description of the Goods;
- Loss or damage resulting from fire, water, explosion or theft;
- Loss, damage or delay of whatever kind and all or any of the above mentioned circumstances arise because of the negligence or willful default of the Company or its servants or agents or by reason of a failure by the Company or its servants or agents to exercise due care and skill, THEN THE LIABILITY OF THE COMPANY AND/ OR ITS SERVANTS OR AGENTS IS HEREBY LIMITED TO PAYMENT BY THEM TO THE CUSTOMER OF THE COST OF HAVING THOSE SERVICES SUPPLIED AGAIN.
- (1) In the case of goods with the value exceeding two hundred dollars ($200) per package or unit or the equivalent of that sum in another currency, the value will not be declared or inserted in a Bill of Lading for the purpose of extending the ship owner’s liability under Article (IV), Rule 5 of the Sea-Carriage of Goods Act 1924 except upon express instructions given in writing by the Customer.
(2) In the case of carriage by air, no option or declaration of value to increase air-carrier’s liability under Article 22(2) of the First Schedule to the Civil Aviation (Carrier’s Liability) Act 1959 will be made except on express instruction given in writing by the Customer.
(3) In all other cases where there is a choice of charges by carriers, warehousemen or others according to the extent of the liability assumed by the carriers, warehousemen or others no declaration of value (where optional) will be made for the purpose of extending liability, and the Goods will be forwarded or dealt with at the Customer’s risk for minimum charges, unless express instructions in writing to the contrary are given by the Customer.
- 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 NEGLIENCE OR OTHERWISE.
- 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. The Company sells or otherwise disposes of such goods as principal and not as agent and is not trustee of the power of sale. The only obligation of the Company to the Customer, consignor, owner or consignee of the goods in relation to such sale or disposal is to use reasonable care and skill.
- 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 goods. All costs, charges and with the sale or return of the goods shall be paid by the customer. A communication from the company or its agent to the effect that the goods cannot be delivered for any reason shall be conclusive evidence of that fact. The company sells or otherwise disposes of such goods as principal and not as agent and is not trustee of the power of sale. The only obligation of the company to the customer, consignor, owner or consignee of the goods in relation to such sale or disposal is to use reasonable care and skill.
- The customer warrants that the goods are not noxious, dangerous, hazardous, inflammable, explosive or likely to cause damage. In the event of breach of this warranty the customer and any person delivering the goods to the company or causing the company to handle or deal with the goods (except under special arrangements previously made in writing) shall be liable for any loss or damage caused thereby and shall be liable for any loss or damage caused thereby and shall indemnify and keep indemnified the company 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 harbor 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.
- 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.
- Notwithstanding any prior dealings between the company and the customer or any rule of law or equity or provision of any statute or regulation to the contrary, contracts, documents and other matter (including cash, cheque, bank drafts and other remittances) sent to the company through the post shall be deemed not to have been received by the company unless and until they are actually delivered to the company to its office and address or placed in company’s post office box, if so addressed.
- The company shall be under no obligation to make any declaration to, or seek any special protection or cover from the Department of Railways Authority 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
Under written instructions to that effect are given to the company by the customer
- The company shall have no obligation to take any action in respect of any goods which may be recognizable 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 of any claim by the customer or any other party against the carrier, insurer or any third party.
- 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 thereof no responsibility attaches to the company for any failure to hold such examination or take such other action unless the company has been given sufficient notice to enable it to arrange for such examination or for the taking of such other action as the case may be.
- The Company reserves complete freedom to decide the manner or procedure to be adopted for any or all of the various acts which will be necessary for the completion of 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 sufficient time before the performance of any service to reasonably allow the company to adopt the manner of performing the service required by special instructions. THE COMPANY SHALL HAVE NO LIABILITY OR RESPONSIBILITY BY VIRTUE OF THE FACT THAT THERE MAY BE A CHANGE IN THE RATES OF DUTY, WHARFAGE, FREIGHT, RAILAGE OR CARTAGE, OR ANY OTHER TARIFF BEFORE OR AFTER THE PERFORMANCE BY THE COMPANY OF AN 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 NOR ITS SERVANTS OR AGENTS OR HOWEVER CAUSED.
- The company shall under no circumstances be precluded from raising a debit in respect if 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.
- Wherever it is necessary, for the purpose of these conditions or any other purpose whatever, for instructions to be given to the company, such instruction will be valid only if given in writing, acknowledged by the company in writing and given in sufficient time in all the circumstances for the company reasonably to be able to adopt the instructions. Standing or general instructions, or instructions given late, even if received by the company without comment, shall not be binding upon the company. If the company adopts standing or general instructions, or instructions given late, for one or more transactions for the customer or any other party, that does not in any way affect the validity of those instructions in relation to any future transaction. No attempt by the company to adopt late instructions will constitute an acceptance by the company or affect the validity of those instructions.
- Without prejudice to the rights of the company at common law the goods (and all documents relating there to) 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. The company may at any time and without notice to the customer stop or suspend the performance of the services while monies due to the company from the customer, consignor, owner or consignee of the goods. The company may at any time and without notice to the customer stop or suspend the performance of the services while monies due to the company from the customer, consignor, owner or consignee remain unpaid.
- (1) This agreement and any collateral agreements made by the company with the customer wherever made shall be governed and construed according to the laws of the state of Australia in which this agreement is entered into and shall be subject to the exclusive jurisdiction of the courts of the said state
(2) If this agreement is held to be subject to the laws of the Commonwealth of Australia or of any particular state or any other legislature then these conditions shall continue to apply and shall be void only to the extent that they are inconsistent with or repugnant to those laws and no further.
(3) All the rights, immunities and limitations of liability contained herein shall continue to have their full force and effect in all circumstances notwithstanding any breach of any term or condition hereof or any collateral agreement by the company.
(4) Unless written notification to the contrary is given by the customer to the company at or prior to entering into this agreement the customer expressly warrants and represents that all or any services to be supplied by the company and acquired for the purposes of a business, trade, profession or occupation carried on or engaged in by the customer.
(5) In the interpretation of this agreement the singular includes the plural and vice versa; words importing one gender mean and include each other gender and words importing corporations mean and include natural persons and vice versa.
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