2. NATURE OF SERVICES

(a) The Company carries on business as a forwarding agent. The Company is not a common carrier and will accept no liability as such. Except to the extent otherwise required under relevant Laws, all Services provided by the Company are governed solely by these Trading Conditions which, shall prevail over any terms and conditions of the Customer and any terms and conditions contained in any transport document including any bill of lading, waybill or consignment note except to the extent provided for in these Trading Conditions.
Except to the extent that any of the Services shall be actually performed by the Company, the Company shall act as a forwarding agent only.
(b) The Company reserves the right to open and weigh all packages and containers and do any other thing necessary in order to inspect all Goods at its discretion and at the Customer’s expense.
(c) The Company may refuse at its sole and absolute discretion to accept any Goods for Carriage, or refuse to deliver any Goods, without assigning any reason.
(d) The Customer 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.
(e) The Customer acknowledges and agrees that the Company, its agents, employees and contractors are obliged to comply with certain conditions and Laws in respect of Licences in relation to the Goods or Services and none of the Company, its agents, employees or contractors are in breach of these Trading Conditions or in their obligations to the Customer in complying with such conditions or Laws.
(f) Without limiting the generality of subclause 2(e), the Customer further acknowledges and agrees that:

(i) the Company’s Reporting Obligations may require the Company, its agents, employees and contractors to disclose a breach or possible breach of any Customs Related Law to any Government Authority;
(ii) none of the Company, its agents, employees and contractors will have any liability to the Customer or any other party arising from compliance with its Reporting Obligations or the conditions of its licences; and
(iii) the Customer must indemnify and keep indemnified the Company, its agents, employees and contractors from all costs and liabilities they incur in relation to their Reporting Obligations in respect of the Services or in relation to the Goods , including all legal costs which include, without limitation any legal costs incurred in determining whether a Reporting Obligation has arisen.

(g) The Company is committed to ensuring as far as is reasonably practicable that any carriage of goods by road performed as part of the Services is performed safely and in accordance with the Heavy Vehicle National Law and its Chain of Responsibility provisions. This commitment extends to eliminating, or where elimination is not possible, minimising safety risks and the risk of damage to road infrastructure. The Company will not comply with any directive or instruction by the Customer that may have the effect of contributing to a breach of the Heavy Vehicle National Law or preventing the Company from taking all steps that it considers to be necessary to prevent any breach of the Heavy Vehicle National Law or to otherwise comply with the duties of care under the Heavy Vehicle National Law.
(h) The Company has a process of compliance with its Chain of Responsibility obligations which is subject to regular review. In the event of a breach of Chain of Responsibility obligations by the Customer, the Company may cease the provision of further services and may withhold any payment for services where the Customer is a contractor to the Company to the extent that the breach has caused the Company loss.
(i) The Company will not comply with any directive or instruction by the Customer that may cause a driver to exceed a speed limit or to drive while fatigued or in breach of a work or rest requirement under the Heavy Vehicle National Law.
(j) The Customer agrees that the Company may treat or otherwise deal with the Goods as directed or required by the Department of Agriculture in relation to any biosecurity or other risks.
(k) The Customer acknowledges that unless otherwise expressly agreed in writing by the Company, the Services shall not include ensuring that the Goods comply with Department of Agriculture regulations, and the Customer is wholly responsible for ensuring that the Goods comply with Department of Agriculture regulations.

3. POWER OF ATTORNEY

(a) Subject to the effect of subclause 3(b) of these Trading Conditions, by agreeing to these Trading Conditions the Customer, constitutes and appoints the Company as its lawful attorney with full irrevocable power and authority to take any and all action and to execute any and all documents and instruments, in the name of and on behalf of the Customer, as required for the purpose of carrying out the Services and the terms of this agreement.
(b) Notwithstanding that the Customer appoints the Company as its attorney, the power and authority vested in the attorney is only effective if and when the Customer fails to comply with a request within the required time or in the event of a default of the Customer.
(c) The Customer acknowledges that the Company will not be liable for any loss or penalty incurred by the Customer as a result of:

(i) any delay by an attorney in exercising their powers; or
(ii) an attorney not exercising its powers.

(d) The Customer indemnifies and will keep indemnified the Company against any reasonable loss or costs it suffers or incurs in exercising powers under this power of attorney except to the extent caused of contributed to by the Company.

4. ACCEPTANCE OF TRADING CONDITIONS

The Authorised Signatory acknowledges and agrees that it has received the Trading Conditions, understands the Trading Conditions or given the opportunity to obtain legal advice, and by either signing the Authority or instructing the Company to perform the Services, the Customer will be bound by the Trading Conditions.

5. COMMUNICATIONS WITH THE COMPANY

(a) Wherever it is necessary, for the purpose of these Trading Conditions or any other purpose whatsoever, 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 or 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.
(b) 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.

6. ABILITY TO APPOINT AGENTS, SUB-CONTRACTORS AND THIRD PARTIES

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.

7. PAYMENT, RECOVERY OF FEES AND GST

(a) The Company is entitled to retain and be paid all Fees, 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 11 to effect insurance) insurance brokers whether declared or otherwise and no such brokerage, commission or allowance or other remuneration shall be payable or allowable to the Customer or its principal (if any). The Company may charge by weight, measurement or value and may at any time reweigh, remeasure or revalue the Goods (or request the same) and charge additional fees accordingly.
(b) Quotations as to Fees and other charges are given on the basis of immediate acceptance and subject to the right of withdrawal or revision by the Company. 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, quotations and charges are subject to revision accordingly with reasonable notice or, if it is not reasonably practicable, without notice to the Customer.
(c) If any changes occur in the rates of freight, insurance premiums, warehousing, statutory fees or any other charges applicable to the Goods or associated with the Services, quotations and Fees are subject to revision accordingly with reasonable notice or, if it is not reasonably practicable, without notice to the Customer.
(d) Without limiting the generality of subclause 7(c) if a change in law, regulation, statutory instrument, or Government Ruling or of any requirement of a Government Authority causes an increase in the costs associated with performance of the Service by the Company, including without limitation, through the introduction of fees, levies, charges, duties or tax, the Company is entitled to recover such additional costs incurred by it and the Fees are subject to revision accordingly with reasonable notice or, if it is not reasonably practicable, without notice to the Customer.
(e) 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.
(f) This subclause 7(f) applies if the Company is or may become liable to pay GST in relation to any Supply under these Trading Conditions:

(i) unless otherwise stated, all charges quoted are exclusive of the GST imposed under the GST Law;
(ii) 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;
(iii) the Customer must also pay GST on the Taxable Supply to the Company, calculated by multiplying the GST exclusive consideration by the GST Rate;
(iv) 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;
(v) the Company agrees to provide the Customer with a Tax Invoice to enable the Customer to claim an Input Tax Credit; and
(vi) if the Customer defaults in the payment on the due date of any amount payable under subclause 7(f)(ii) 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.

(g) All amounts due to the Company in Australia are payable in Australian dollars unless advised otherwise by the Company. The Company is entitled to charge a currency conversion premium to cover the expenses incurred when converting receivables into Australian currency.
(h) The Customer agrees that the Fees will be paid as determined by the Company as follows:

(i) prepaid prior to the Company collecting any Goods or undertaking the Services; or
(ii) COD on the day of delivery; or
(iii) on the day the Company notifies the Customer that the Services are completed; or
(iv) within 5 Business Days of the date of the Company’s Tax Invoice; or
(v) as otherwise determined by the Company.

(i) If any amounts payable or due under any agreement between the Company and the Customer (including, without limitation, amounts payable pursuant to subclause 10(a) or Fees payable for Services provided by the Company) are not made within 3 Business 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 to be calculated in accordance with the National Australia Bank business overdraft reference rate on the amount outstanding calculated from the due date until payment is made in full, where such liquidated damages are reasonably necessary to protect the Company’s business interests. The Company may take any legal proceedings to recover amounts owing pursuant to these Trading Conditions.
(j) The Company reserves the right to offset any amounts receivable from the Customer against any amounts payable to that Customer. This right exists irrespective of the date the liability has been created or debt incurred with the Company.
(k) 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 on 14 days’ notice, for Fees, freight, demurrage, detention charges, duty, fines, penalties, salvage, average of any kind whatsoever and without limitation, 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 reasonable costs and expenses of exercising the lien including without limitation, the costs of sale and legal fees.
(l) The lien and rights granted by subclause 7(k) 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 subclause 7(k). The Company sells or otherwise disposes of such Assets pursuant to subclause 7(k) as principal and not as agent and is not the trustee of the power of sale.

8. PERSONAL PROPERTY SECURITIES

(a) Without limiting the generality of subclauses 7(k) and 7(l), the Customer acknowledges that the Company shall have a Security Interest which attaches over any Assets which are the subject of the Services and in the Company’s possession. The Customer acknowledges and consents to the registration and perfection of the interest set out in this subclause 8(a) for the purposes of the PPSA.
(b) The Customer warrants that it has rights in the Assets and the power to transfer rights in the Assets to the Company.
(c) The Customer acknowledges that it must sign the Authority and if it does not sign the Authority it adopts and accepts these Trading Conditions by conduct.
(d) The Customer warrants that it has not granted, and that it will not grant, any other Authority in respect of the Services which the Company has been granted Authority.
(e) The Customer must not grant any other person a Security Interest in respect of the Assets.
(f) The Customer must not allow an Excluded Interest to exist over the Goods.
(g) To the maximum extent permitted by law, if the PPSA applies, the Customer irrevocably waives any rights the Customer may have to:

(i) receive notices or statements under sections 95, 121(4), 125, 130, 132(3)(d), 132(4) and 135 of the PPSA;
(ii) redeem the Assets under section 142 of the PPSA;
(iii) reinstate these Trading Conditions under section 153 of the PPSA; and
(iv) receive a verification statement (as defined in the PPSA).

(h) The Customer agrees to do anything (such as obtaining consents, signing and producing documents, producing receipts and getting documents completed and signed) which the Company asks and considers necessary for the purposes of:

i. ensuring that a Security Interest is created under these Trading Conditions is enforceable, perfected and otherwise effective; or
ii. enabling the Company to apply for any registration, or give any notification, in connection with a Security Interest created under these Trading Conditions so that the Security Interest has the priority required by the Company,
including anything the Company reasonably asks the Customer to do in connection with the PPSA.
(i) The Customer will immediately inform the Company if an Insolvency Event occurs with respect to the Customer. The Customer shall not change its name or other details without first notifying the Company in writing with at least 14 days’ notice before such change takes effect.

9. WARRANTIES BY THE CUSTOMER

(a) The Customer warrants to the Company, and will procure a warranty from the consignor and consignee in favour of the Company, that:

(i) it is either the owner of the Goods, or the authorised agent of the owner of the Goods with authority to bind the owner to act or otherwise have authority to arrange the Services under the Service Agreement;
(ii) it has not granted any other person a Security Interest in respect of the Assets;
(iii) it has not allowed an Excluded Interest to exist over the Goods and an Excluded Interest does not exist over the Assets;
(iv) it will maintain appropriate insurance in respect of the Goods and will not do anything which might void any insurance policy held by the Customer or the Company;
(v) 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;
(vi) it will retain all documents or records in the manner required by Government Authorities;
(vii) it will observe all requirements of Government Authorities;
(viii) it will maintain as confidential the terms of the Authority and these Trading Conditions;
(ix) it has complied with all Laws and regulations of Government Authorities relating to the nature, condition, packaging, handling, storage, weight and Carriage of the Goods including all Laws prescribed by the RSA and the Heavy Vehicle National Law;
(x) the Goods are packed to withstand ordinary risks of handling storage and Carriage, having regard to their nature;
(xi) the Goods are not Dangerous Goods except to the extent that the Parties have agreed in writing to the carriage of Dangerous Goods;
(xii) the Goods comply with all relevant requirements pursuant to the Product Emission Standards;
(xiii) the Goods and their Carriage do not contravene any Laws or the Modern Slavery Laws;
(xiv) it will comply at all times with all Privacy Laws in relation to the Service Agreement, the Goods and the Services and will notify the Company of any issues or requirements under such laws in relation to the Service Agreement, the Goods or Services of which the company should be aware;
(xv) it will comply at all times with all OHS Laws in relation to the Service Agreement, the Goods and the Services, and will notify the Company of any issues or requirements under such laws in relation to the Service Agreement, the Goods or the Services of which the Company should be aware, or which may affect the Company’s ability to comply with all OHS Laws;
(xvi) prior to the Company making payment to the ABF on behalf of the Customer of declared amounts of owed Customs Duty, GST or any other charge or tax, the Customer has verified and accepted the accuracy of these amounts as declared, and the Company shall not be liable for any underpayment of these amounts which are owed and payable solely by the Customer; and
(xvii) it will, if requested by the Company, cooperate with the Company in making any Voluntary Disclosure to the ABF if Voluntary Disclosure is deemed necessary by the Company and/or its legal advisors to ensure compliance with the Customs Act.

(b) The Customer acknowledges that a breach or failure to observe all or any of the warranties in subclause 9(a) 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 clause 10.

10. INDEMNITY BY THE CUSTOMER

(a) Without limiting the effect of these Trading Conditions, the Customer agrees to indemnify and keep indemnified the Company for:

(i) any loss or damage directly or indirectly caused by the Goods or by breach of these Trading Conditions by the Customer except to the extent caused or contributed to by the Company;
(ii) amounts of Customs Duty, GST and other payments made to Government Authorities by the Company on behalf of the Customer;
(iii) any penalties payable by the Company (whether pursuant to a court order or pursuant to an Infringement Notice) due to the Customer:

(A) providing information that is incorrect or misleading;
(B) omitting to provide material information required to the Government Authorities;
(C) omitting to provide information required by the Company to properly carry out the Services and/or comply with the conditions of any Licences;
(D) 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/or
(E) failing to provide information or documentation requested by the Company;

(iv) 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;
(v) penalties associated with the Customer’s omission of information required to be provided to any Government Authorities;
(vi) penalties associated with the Customer making or causing to be made, statements which are false or misleading to Government Authorities, except to the extent that such statements were made by the Company in the knowledge that such statements were false or misleading;
(vii) penalties associated with the Customer providing misleading or deceptive information regarding the status of Goods, whether pursuant to the Competition and Consumer Act or other legislation;
(viii) penalties associated with the Customer providing invalid or otherwise inadequate Certificates of Origin as required under any relevant Free Trade Agreement;
(ix) penalties imposed by any RSA for any breach of the Laws governing the Carriage of goods by road or any breach, act or omission arising out of or pursuant to the Chain of Responsibility obligations or the Heavy Vehicle National Law that was caused by the Customer;
(x) 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;
(xi) demurrage or other charge for detention or failure to return items provided by the Company pursuant to contracts with other parties, except for such charges caused by the Company;
(xii) liabilities or costs incurred by the Company on behalf of the Customer associated with the Services 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);
(xiii) damages payable by the Company arising from or contributed to by errors or misrepresentations by the Customer;
(xiv) losses or damage incurred by the Company due to a breach by the Customer of any of the warranties in subclause 9(a);
(xv) 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 to the extent that the exercise of the powers is related to the Services;
(xvi) any Customs Duty, GST or other charge assessed against the Company in relation to the Goods or Services;
(xvii) any charges levied by Government Authorities or other costs incurred by the Company for examination and treatment of the Goods;
(xviii) any costs, charges or fees, including legal fees, incurred in obtaining any Customs advices or making Voluntary Disclosure to the ABF where reasonably necessary, whether or not the Customer directed or requested the Company to obtain the Customs advices or make the Voluntary Disclosure;
(xix) any costs, charges or fees, including legal fees reasonably incurred by the Company in obtaining any Customs advices on behalf of the Customer where reasonably necessary;
(xx) any costs or charges incurred by the Company as a result of or in connection with a direction or request from any Government Authority in relation to the Goods or Services;
(xxi) any costs or charges incurred by the Company as a result of or in connection with any variation by any Government Authority of conditions of Licences or the addition by any Government Authority of new conditions on Licences in relation to the Goods or Services;
(xxii) any costs, charges or penalties incurred by the Company as a result of or in connection with any breaches of any Licences caused by or contributed to by the act or omission of the Customer or the nature of the Goods or Services;
(xxiii) any costs or charges incurred by the Company as a result of or in connection with any suspension or cancellation of Licences by any Government Authority caused by or contributed to by the act or omission of the Customer or the nature of the Goods or Services;
(xxiv) any costs or charges incurred by the Company as a result of or in connection with the Company complying with any conditions or Laws in respect of any Licences in relation to the Goods or Services;
(xxv) any costs or charges incurred by the Company pursuant to subclauses 21(c), 21(d), and 21(e);
(xxvi) any costs, charges or penalties associated with the Company being deemed to be the Shipper in any arrangements for the transport or movement of the Goods for the Customer whether payable to a Government Authority or otherwise; and 
(xxvii) any costs, charges or penalties associated with the Company deemed to be the owner or importer of the Goods;
(xxviii) any costs or charges incurred in recovering any amounts payable to the Company in relation to the provision of the Services to the Customer (including, without limitation, costs of legal proceedings).

(b) The Customer agrees to pay any amounts claimed pursuant to the indemnity in subclause 10(a) within 7 days of demand by the Company.
(c) The nature of the indemnity provided pursuant to subclause 10(a) will include, without limitation, all penalties, liabilities, all losses (including indirect and Consequential Loss) 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.
(d) For the purposes of clause 10 the Customer agrees that the Company may take whatever actions necessary for the Company to comply with the terms and conditions of its Licences including, without limitation, complying with its Reporting Obligations.
(e) For the purposes of subclause 10(d) the Customer agrees that the Company may take such actions as are necessary to comply with the terms and conditions of its Licences whether or not any breach or suspected breach exists in relation to or connection with the Goods or Services provided by the Company.
(f) Without limiting anything in subclause 10(e) the Customer indemnifies the Company against any penalties, interest, tax or additional duty that is payable as a result of the Company providing information or making statements to any Government Authority as are necessary for the Company to comply with the terms of its Licences or Customs Related Laws.
(g) The Company may execute all or any of its rights pursuant to clause 7 to recover any amounts owing pursuant to this clause 10.
(h) There is no need for the Company to suffer or incur any losses, costs, damages, liabilities, judgments, penalties or expenses before requiring payment from the Customer.

11. INSURANCE

The Company will not affect 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 and payment of the insurance. 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.

12. STORAGE AND TRANSPORT

(a) Subject to express instructions in writing given by the Customer and accepted by the Company in writing (and without limiting the generality of clause 6), 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.
(b) The Customer agrees that:

(xxix) 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 Carriage of Goods by Sea Regulations 1998 except upon express instructions given by the Customer;
(xxx) in the case of Carriage by air, no option or declaration of value to increase air-carrier’s liability under:

(A) Article 22 of Schedule 1A to the Civil Aviation (Carrier’s Liability) Act 1959 (Cth); or
(B) Article 22(2) of Schedule 1, 2, 4 or 5 to the Civil Aviation (Carrier’s Liability) Act 1959 (Cth),
will be made except on express instruction given in writing by the Customer;

(xxxi) 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;
(xxxii) 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;
(xxxiii) 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; and
(xxxiv) all Goods moved by air are subject to volumetric conversion on the basis of one kilo being the equivalent of six thousand cubic centimetres. Goods moved by other means are subject to volumetric conversion on the basis of relevant industry standards or as modified by the Carrier’s standard trading conditions.

13. PERISHABLE, NON-DELIVERABLE, UNCOLLECTED, HAZARDOUS AND DAMAGED GOODS

(a) 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 upon 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. Such notice will not be required where the Company has been directed to immediately dispose of the Goods by a direction of Government Authorities.
(b) 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 uncollected or not 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 storage, 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.
(c) Where the Goods are stored by the Company for the Customer and they are uncollected for whatever reason 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 storage, 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.
(d) In respect of subclauses 13(a), 13(b), and 13(c), the Company sells or otherwise disposes of such Goods as principal and not as agent and is not trustee of the power of sale.
(e) In the event that any sale of Goods pursuant to subclauses 13(a), 13(b), and 13(c) does not provide sufficient proceeds to discharge all liability of the Customer to the Company, the Customer acknowledges that it is not released from the remainder of the liability to the Company merely by sale of the Goods.

14. DESTRUCTION OF DANGEROUS GOODS

In the event that the Goods are found to be Dangerous Goods 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 the goods are likely to cause damage or they become dangerous to other goods, property or human life.
The expression ‘goods are 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 and OHS Laws.

15. INSPECTION

The Company may without liability open any package or other container which the Goods are placed or carried to inspect or weigh the Goods either to determine their weight, nature or condition or to determine their ownership or destination.

16. DELIVERY

(a) The Company is authorised to deliver the Goods at the address given to it by the Customer.
(b) The Company is deemed to have satisfied its delivery obligations under the Service Agreement if the Company delivers the Goods to the address given by the Customer, and

(i) obtains from a person at that address a receipt or a signed delivery docket; or
(ii) if no person is available at that address, the Company provides the Customer with a photograph of the Goods delivered at that address.

(c) In the event of the consignee refusing to take delivery as contemplated in subclause 16(b) or not being able to take delivery of the Goods, or the Goods being unable to be delivered for any other reason, the Company is authorised to at the Company’s absolute discretion and at the Customer’s sole expense and risk and without liability to the Company, deal with the Goods as the Company thinks fit including storing or disposing of the Goods or returning them to the Customer or the person entitled to collect the Goods.

17. RAILWAY DECLARATION

The Company shall be under no obligation to make any declaration to, or to seek any special protection or cover from, the Department of Infrastructure and Regional Development and Cities, railways authority or provider of railways in any State, Territory, or any airline or road transport authority in respect of any Goods which fit that body’s description of:
(a) dangerous or hazardous goods; or
(b) goods liable to be stored in the open,
unless written instructions to that effect are given to the Company by the Customer within a reasonable time.

18. PILLAGED GOODS

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.

19. STORAGE OF GOODS PENDING DELIVERY

(a) Without limiting the effect of clause 12, 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.
(b) In circumstances where the Company stores the Goods, the Company may, by notice in writing, require that the Customer remove the Goods for any reason whatsoever within 7 days from receipt of a notice delivered to the address which the Customer gave to the Company on delivery of the Goods. If the Customer fails to do so, the Company may remove the Goods and store them in such a manner and in such a place as the Company thinks appropriate at the Customer’s expense and risk.

20. COD GOODS

The Company may in its absolute discretion refuse instructions to collect Goods on delivery on COD terms 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.

21. LIMITATION OF LIABILITY, FORCE MAJEURE AND INDEMNITY FROM LIABILITY TO THIRD PARTIES

(a) To the fullest 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:

(i) 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;
(ii) any liability incurred (including any penalties imposed directly on the Company, its servants or agents) as a result of or in connection with any finding that Certificates of Origin produced pursuant to a relevant Free Trade Agreement are invalid;
(iii) 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;
(iv) any liability in respect of the loss, misdelivery, deterioration, non-delivery, contamination, evaporation or damage to the Goods or consequential loss arising as a result however caused;
(v) any loss or depreciation of market value attributable to delay in forwarding the Goods or failure to carry out instructions of the Customer;
(vi) 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;
(vii) loss or damage resulting from fire, water, explosion or theft;
(viii) loss, damage or delay occasioned by examination of the Goods by any of the Government Authorities;
(ix) 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 the Department of Agriculture);
(x) any costs incurred by the Company on behalf of the Customer to any other person in relation to the Carriage of the Goods;
(xi) any losses, liabilities, costs or charges incurred by the Company as a result of or in connection with a direction or request from any Government Authority in relation to the Goods or Services;
(xii) any losses, liabilities, costs or charges incurred by the Company as a result of or in connection with any variation by any Government Authority of conditions of Licences or the addition by any Government Authority of new conditions on Licences in relation to the Goods or Services;
(xiii) any losses, liabilities, costs, charges or penalties incurred by the Company as a result of or in connection with any breaches of any Licences in relation to the Goods or Services;
(xiv) any losses, liabilities, costs, charges or penalties incurred by the Company as a result of or in connection with the Company complying with any conditions or Laws in respect of any Licences in relation to the Goods or Services;
(xv) any losses, liabilities, costs or charges incurred by the Company as a result of or in connection with any suspension or cancellation of Licences in relation to the Goods or Services; and
(xvi) 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.

Nothing in clause 21(a) is intended to limit the Customer’s obligations under the indemnity in clause 10.
(b) The Company shall not be liable in any event for any Consequential Loss whether or not the Company had knowledge that such damage may be incurred.
(c) The Company and Customer acknowledge that Goods moving by airfreight are subject to the applicable Airfreight Convention. The Customer’s recovery of loss or damage, if any, is against the airline carrier and is limited in accordance with the Airfreight Convention 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 under the aforementioned 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.
(d) The Company and Customer acknowledge that Goods moving by sea freight are subject to the applicable international treaties including the Hague Rules. The Customer’s right to recovery of loss or damage, if any, is against the sea freight Carrier and is limited in accordance with the Hague Rules 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 sea freight Carrier, the Company will seek to recover on behalf of the Customer from the Carrier amounts payable by the Hague Rules 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 sea freight Carrier.
(e) The Company and Customer acknowledge that Goods moving by airfreight or sea freight may necessarily involve a part of transport undertaken by other means in order to comply with the terms of Carriage under the Service Agreement 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 loss or damage, if any, 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 third party 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 Service Agreement.
Force Majeure
(f) The Company shall not be liable to the Customer for any breach or failure to perform its obligations under these Trading Conditions or any damage or loss to Goods resulting from any of the following events or occurrences:

(i) that which cannot reasonably be prevented by the Company by taking reasonable precautions and cannot reasonably be circumvented by the Company;
(ii) any event, occurrence, thing or person which prevents, hinders or delays the Company from performing any of its obligations including, without limitation:

(A) an act of God, fire, explosion, flood, inclement weather, earthquake, or natural disaster;
(B) the outbreak of a disease, pandemic, epidemic or other major public health emergency;
(C) act of war which may include but is not limited to armed conflict, invasion, insurrection, military coup, civil war, violent civil disturbance, embargo and shipping blockade, hostilities (whether or not accompanied by any formal declaration of war), riot, civil disturbance or acts of terrorism;
(D) the act of any government or competent authority (including the cancellation or revocation of any approval, authority or permit or restrictions);
(E) the declaration of a state of emergency or the invocation of martial law having an effect on commerce generally;
(F) industrial action, strikes or lock-outs or stoppage or restraint of labour from whatever cause, whether partial or general;
(G) power failure;
(H) accident;
(I) the default of any suppliers under any material contracts;
(J) the unexpected breakdown of plant or machinery despite regular preventative maintenance;
(K) perils, dangers and accidents of the sea or other navigable waters;
(L) arrest or restraint of princes, rulers or people, or seizure under legal process;
(M) failure of government authorities to provide essential services or infrastructure, which are necessary for the performance of the Services;
(N) saving or attempting to save life or property at sea; or
(O) any other force majeure 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.

(g) If the occurrence of any event contemplated in subclause 21(f) causes a delay of over 20 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. However, all costs, charges and expenses already incurred by the Company prior to the termination or arising in connection with the disposal or return of the Goods shall be paid by the Customer.
(h) Any claim made against the Company, its servants or sub-agents is limited to the full extent permitted by Law. 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.

22. NOTIFICATION OF LIABILITY

(a) Any claim for loss or damage must be notified in writing to the Company within 7 days of delivery of the Goods or of the date upon which the Goods should have been delivered.
(b) If no claim for loss or damage is made within the period referred to in clause 22(a) and if the Customer does not bring proceedings in respect of such claim within 9 months from the date of delivery of the Goods (or, if the Goods have not been delivered, from the date they were due to be delivered) then the Customer is deemed to have accepted the Goods and to the fullest extent permitted by law, waives any claim for loss or damage against the Company in respect of the Services.

23. GUARANTEE, UNDERTAKING AND INDEMNITY BY DIRECTORS AND SHAREHOLDERS

(a) If the Customer is a company, the directors and shareholders of that company will guarantee the Debts, undertake to perform the obligations of the Customer and indemnify and keep indemnified the Company against the Debts.
(b) For the purposes of subclause 23(a), the Customer will ensure that its directors and shareholders will sign any other documents required by the Company to evidence and confirm any guarantee, undertaking and indemnity in the form annexed to these Trading Conditions.

24. INTELLECTUAL PROPERTY

(a) The Customer acknowledges that the Company shall retain all Intellectual Property in any documents or things created by the Company in the course of providing its Services pursuant to these Trading Conditions.
(b) The Customer shall not, and shall not permit any third party to:

(i) use, copy, distribute, reproduce, disclose, licence, assign, or otherwise make available the Intellectual Property in any form, in whole or in part, except as expressly provided in the Service Agreement and with the consent of the Company;
(ii) apply for registration of any Intellectual Property or any substantially similar intellectual property, anywhere in the world; or
(iii) create derivative works based on the Intellectual Property of the Company.

(c) Without limiting the effect of subclause 24(a) the Customer acknowledges and agrees that the Company shall retain all results of any research, enquiries or investigations undertaken by it in the course of providing the Services and is not obliged to provide those results to the Customer.

25. CONFIDENTIALITY

(a) The Customer acknowledges that in the course of the Company providing the Services, it may gain access to Confidential Information of the Company. The Customer must:

(i) not use the Confidential Information for any purpose other than to fulfill its obligations under the Service Agreement;
(ii) not disclose, reproduce, distribute, or transmit the Confidential Information, in whole or in part, to any third party, without the prior written consent of the Company;
(iii) take all reasonable steps to protect the confidentiality and value of the Confidential Information and to prevent unauthorised use or disclosure;
(iv) not copy or reverse engineer any materials or solutions provided by the Company that embody the Confidential Information;
(v) notify the Company immediately upon becoming aware of any unauthorised use or disclosure of the Confidential Information.

(b) The obligations of the Customer in this clause 25 shall not apply to information that:

(i) was known to the Customer prior to its disclosure by the Company;
(ii) becomes publicly available other than through a breach of the Service Agreement; or
(iii) is lawfully obtained by the Customer from a third party without any obligation of confidentiality.

(c) The obligations set forth in this clause 25 shall survive the termination or expiration of the Service Agreement for a period of five (5) years.

26. NON-CONSUMER CONTRACT AND NON-SMALL BUSINESS CONTRACT PROVISIONS

(a) This clause 26 only applies where the Service Agreement between the Company and the Customer is neither a Consumer Contract nor Small Business Contract.
(b) The Customer must not assign the Customer’s rights or transfer the Customer’s obligations under the Service Agreement without the Company’s prior written consent. The Company may assign the Company’s rights and obligation under the Service Agreement without the Customer’s consent.
(c) No modification amendments or other variation of the Trading Conditions shall be valid and binding on the Company unless made in writing and duly executed by and on behalf of the Company.
(d) 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.
(e) Any term in these Trading Conditions which limits the Company’s liability will also extend and apply to any Sub-contractor, agent or nominee. For the purpose of this subclause 26(e), the Company is deemed to be acting as agent or trustee for the Company’s agents, employees, nominees and Subcontractors and each of those persons shall be deemed to be a party to these Trading Conditions.
(f) The Customer undertakes that no claim or allegation will be made, whether by the Customer or any other person, against the Company’s agents, employees or Sub- contractors and if such claim or allegation is made for the consequence thereof. It is agreed that this release and indemnity operates irrespective of how the claim or allegation arises including negligence or out of events which may constitute a fundamental breach of contract or a breach of a fundamental term of a contract.
(g) The indemnity provided in subclause 10(c) 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.
(h) Except in relation to any rights the Customer may have in relation to the Consumer Guarantees, 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, nominee 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.
(i) In all cases where these Trading Conditions, Laws, 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 Fees the subject of the Service Agreement, or $1,000.
(j) The Company shall not be liable in any event for any Consequential Loss whether or not the Company had knowledge that such damage may be incurred.

27. CONSUMER CONTRACT OR SMALL BUSINESS CONTRACT PROVISIONS

(a) This clause 27 only applies to the extent that the Service Agreement between the Company and the Customer is a Consumer Contract or Small Business Contract.
(b) Neither Party may assign the other Party’s rights or transfer its obligations under the Service Agreement without the other Party’s prior written consent, which must not be unreasonably withheld.
(c) No modification amendments or other variation of the Trading Conditions shall be valid and binding on the Parties unless made in writing and duly executed by and on behalf of both Parties.
(d) The Company, acting reasonably, reserves the right 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.
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.
(e) Where the Company accepts instructions to deliver on a COD basis pursuant to clause 20,
THE COMPANY IS NOT LIABLE FOR ANY LOSS OR DAMAGE ARISING FROM SUCH INSTRUCTIONS OR SUCH COLLECTION, EXCEPT TO THE EXTENT THAT THE LOSS OR DAMAGE WAS CAUSED BY THE COMPANY.
(f) Except in relation to any rights the Customer may have in relation to the Consumer Guarantees, the Company shall not be liable in any event for any Consequential Loss unless the Company had knowledge that such damage was likely to incurred.
(g) In all cases where these Trading Conditions, Laws, 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 Fees the subject of the Service Agreement, or $1,000.

These Trading Terms are accepted by the Customer and the Customer hereby appoints the Company to act on its behalf on the terms of the Authority and on the terms of these Trading Conditions.