TERMS AND CONDITIONS OF CONTRACT
Orbit Logistics Pty Ltd ABN 52 105 601 670 February, 2004
IN THESE TERMS AND CONDITIIONS.
The Company means Orbit Logistics Pty Ltd ABN 52 105 601 670 carrying on business in its own name or under any other registered or unregistered business name.
The Client means the person or company with whom this contract is made or who becomes bound by its terms and conditions or any other person or company for whom business is done by the Company.Goods means the cargo or articles or goods perishable or otherwise (including animals of any description) which the Client or any other person has provided together with any other container or any other packaging, pallets or other storing device supplied to the Company.
Services means the whole of the operations and services undertaken by the Company, including but not limited to forwarding, clearing, shipment, carriage, transport and/or storage of any Goods.
Dangerous Goods means all such Goods as are in fact or at law noxious, dangerous, hazardous, explosive, radio active, inflammable, volatile or capable by their nature of causing damage or injury to other Goods or persons or animals or any other thing in which such dangerous goods are carried or stored, or any Goods which in the opinion of the Company are likely to cause damage or injury to persons, other Goods or property.
Perishable Goods means any Goods which are subject to waste or deterioration or spoilage over a period of time or through contact with other Goods or elements, and includes, but is not limited to all chilled, frozen and refrigerated Goods
1. The Company is not a common carrier and will accept no liability as such. All Services whatsoever are performed by the Company subject only to these terms and conditions which can only be altered by a written document signed by a director of the Company. Any terms or conditions contained in any document issued, delivered, tendered, sent or produced by the Client in relation to the Goods or Services referred to herein which are contrary to any provisions of these terms and conditions shall to the extent ofsuch inconsistency be inapplicable. The Company reserves the right to refuse the carriage or transportation or storage or the provision of any other Services whatsoever in relation to any Goods at its absolute discretion and shall not be bound to give any reason for such refusal
2. The Client warrants that in agreeing to the terms hereof, it has the authority of all persons having an interest in the Goods. The Client hereby irrevocably undertakes to indemnity and keep indemnified the Company and its servants and agents against any claim asserted against any of them by any person who claims to have any interest whatsoever in the Goods irrespective of how any such claim arises including claims attributable to negligence or breach of contract whether fundamental or not or wilful act or default of the Company or others
3. The Company reserves the right to provide the Services by any means, route or procedure. The Client acknowledges that the Company is authorised to arrange for the provision of the Services by an independent contract or subcontractor or agent of the Company or by such other means as the Company shall see fit subject to any conditions imposed by any such independent contract or subcontractor or agent.The Client shall be bound by such conditions and will indemnify the Company and its servants and agents in respect of any claim made against them arising out of or in any way related to the Company having entered into any such arrangements as is referred to in this clause irrespective of whether or not such claim is attributable to negligence or breach of contract, whether fundamental or otherwise, or wilful act or default of the Company, its servants or agents.
4. The Client undertakes that no claim or allegation shall be made by any person against any other person (other than the Company), by whom any of the Services are provided which imposes or attempts to impose upon such person any liability whatsoever and howsoever arising including from negligence or breach of contract, whether fundamental or otherwise, or wilful act or default of the company or otherwise in connection with the Goods or Services. If any such claim or allegation should be made the Client undertakes to indemnify the Company and the person against whom such claim or allegation is made against the consequences thereof. For the purpose of this clause and these terms and conditions the Company is or shall be deemed to be acting as agent or trustee on behalf of and for the benefit of such persons and each of them and all such persons and each of them shall to this extent be or deemed to be parties to this contract.
5A. When these conditions apply to or form part of an air waybill issued by the Company in its capacity as a contracting party for air transportation, it is agreed that the transportation to the airport of departure and from the airport of arrival does not constitute part of the contract of air carriage. As far as the Company takes over the arrangement or performance of such Services, this is done under a separate contract which is subject to these terms and conditions and (to the extent only to which these terms and conditions do not or cannot exclude or modify the operation of any applicable legislation) to that legislation.
5B. Each term, condition, exemption, liberty and limitation contained herein and every defence, liberty,right, exemption and immunity of whatsoever nature applicable to the Company or to which the Company is entitled hereunder shall also be available and shall extend to protect all subcontractors, every servant or agent of the Company of the subcontractor, every other person other than the Company by whom theServices or any part thereof are provided and all persons who are or may be vicariously liable for the acts or omissions of any persons referred to earlier in this clause and for the purpose of this clause, theCompany is or shall be deemed to be acting as agent or trustee on behalf of and for the benefit of all such persons and each of them and all such persons and each of them shall to this extent be deemed to be parties to this contract
6. All Services are provided at the sole risk of the Client. The Company shall not be responsible either directly or vicariously for any loss whatsoever, howsoever and by whomsoever caused including without limiting the foregoing the negligence or breach of contract or bailment or wilful act or default of theCompany or others. This clause shall apply to all the consequences of any loss of or damage to or deterioration of Goods or misdelivery or failure to deliver or delay in delivery of Goods whether or not the same occurs in the course of performance by or on behalf of the Company of the Services or in events which are in the contemplation of the Company and/or the Client or in events which are foreseeable by them and events which could constitute a fundamental breach of the contract or a breach of a fundamental term thereof.
7. In all cases where liability has not been effectively excluded, whether by this agreement or by statute,convention or otherwise, the total liability of the Company for any loss or damage is limited to:(a) $100 Australian(b) In the case of a breach of warranty under the Trade Practices Act 1974 the payment of the cost of having the Services supplied again.
8. (a) The Company’s charges shall be considered earned by the Company when the Goods are entrusted to the company, its servants or agents, for the purpose of Services being provided in connection therewith. The Company’s charges will be paid within 7 days of invoice. Should any amount not be paid on due date then any outstanding amount will attract interest at the rates laid down from time to time thePenalty Interest Rates Act 1983 (Vic). If the Company incurs any expenses in relation to the provision ofServices for the Client prior to the Goods being entrusted to the Company, its servants or agents, then theClient will reimburse the Company in respect of such expenses. If any such expenses or the Company’s charges or part thereof shall be in arrears and unpaid for three months, the Company may give seven days notice in writing to the Client at its last known address requiring it to pay the charges. If upon the expiration of seven days from the posting of such notice the Client has failed to pay such charges theCompany may sell such Goods or any part thereof and may open any packet or other object in which theGoods are contained for that purpose and shall not be liable to any person for any loss or damage whatsoever thereby caused. Any rates quoted by the Company for the provision of Services are exclusive of any tax, duties, levies, imposts, deposits or outlays incurred in any way whatsoever in respect of the provision of Services (including, but not limited to, any goods and services tax levied under the A New TaxSystem (Goods and Services Tax) Act 1999 (Cth.) as amended or any other goods and services tax, value added tax, consumption tax or tax of similar effect levied from time to time (together, “GST”)) and if any tax, duties, levies, imposts, deposits or outlays, GST or any other charges, all of which will be collectively referred to as the charges, are raised against the Company arising out of in any way related to the provision by it of Services, then any such charges will be met by the Client who hereby indemnifies the Company, its servants or agents in respect of any such charges.
8. (b) Should the Company afford any Client credit, then the Company will be entitled on giving the Client two days written notice to its last known address to revoke the Client’s entitlement to credit. The Client undertakes not to withhold payment of any amounts due to the Company on the ground that the Client has or will sustain any losses for which it holds the Company responsible.
8.(c) The Company is entitled to retain and be paid any brokerage, commission, allowances and other remuneration retained by or paid to shipping agents, forwarding agents and insurance brokers.
8.(d) Quotations are given by the Company on the basis that the prices quoted will remain firm for thirty (30) days after the quotation. If however any changes occur in freight rates, customs duties,insurance premiums or any other charges applicable to the freight, the price quoted shall be subject to revision without notice.
9. The Company shall have a general lien and a particular lien on all Goods or documents relating to any and all Goods in their possession for any and all sums due at any time from the Client, and shall be entitled to sell or dispose of such Goods or documents at the expense of the Client and apply the proceeds in or towards the payment of such sums on 28 days notice in writing to the Client notwithstanding the fact that the Goods or documents thereby sold or disposed of do not relate to the sum or sums due to the Company.Without limiting this clause 9, the Client indemnifies the Company against all solicitor-client legal costs incurred by the Company for any reason in respect of these conditions and any contract hereunder, and the lien hereunder shall be available to cover all such costs incurred by the Company.
10. The Company is under no obligation whatsoever to effect insurance on any Goods nor to arrange for any subcontractor or agent engaged in the course of providing the Services to effect such insurance, and the Client acknowledges that such insurance will not be effected. Insurance of the Goods is the sole responsibility of the Client and the Client shall bear any costs incurred in respect of such insurance.
11. Except under special arrangements previously made in writing with the Client, the Company will not carry and the Client warrants that it will not tender for carriage or storage or the provision of any Services,any Dangerous Goods. The Client shall be liable for and will indemnify the Company for all loss and damage whatsoever caused by any Dangerous Goods and if in the opinion of the Company the Goods are or are liable to become of a dangerous, inflammable, explosive, volatile, offensive or damaging nature theGoods or any part thereof may at any time be retained, destroyed, disposed of, abandoned or rendered harmless by the Company at the Client’s cost without compensation to the Client and without prejudice to the Company’s right to any charges or any other rights hereunder.
12. It is the sole responsibility of the Client to address adequately each consignment and to provide written delivery instructions to enable effective delivery to be made and the Company shall not be liable for delay in forwarding or delivery resulting from the Client’s failure to comply with its obligations in this regard.
13. The Client warrants that it has complied with all laws and regulations relating to the nature, packaging,labelling, storage or carriage of the Goods or Services to be provided in respect of the Goods and the Goods are packed in a manner adequate to withstand the ordinary risk attendant on the Services to be provided having regard to their nature and the Client hereby indemnifies the Company for any liability whatsoever asa result of or arising out of the Client’s failure to comply with each of these warranties. The Company does not warrant that any Goods in respect of which Services are to be provided are capable of being dealt with pursuant to the contract to provide the Services in respect of the Goods without infringing the law of any country or state from, to or through which the Goods are destined or may be carried, stored or otherwise dealt with.
14. (a) The Client shall be responsible for the conformity of any containers, packaging or pallets or other objects in or on which the Goods are stored, packaged or contained with any requirements of the consignee or any relevant person or authority and from any expense incurred by the Company arising from any failure to so conform.
14. (b) If there are instructions from the Client to collect freight, duties, charges or other expenses from a consignee or any other person, the Client shall remain responsible for the same if they are not paid by such consignee or other person.
15. Notwithstanding any other provisions thereof other than clause 17, any claim for loss or damage must be notified in writing to the Company within seven (7) days of the date upon which the Goods should have been delivered or seven (7) days of the date on which any Services should have been provided. TheCompany shall be discharged of all liability howsoever arising unless suit is brought against the Company within nine (9) months after delivery of the Goods or the date when the Goods should have been delivered or the date upon which Services should have been provided.
16. All the rights, immunities and limitations of liability contained in these terms shall continue to have their full force and effect in all circumstances and notwithstanding any breach of this contract or of any of these terms and conditions by the Company or any other person entitled to the benefit of such provisions.
17. If any provision or part of any provision of these terms and conditions is unenforceable such unenforceability shall not affect any other part of such provision or any other provision hereof.
18. Nothing contained herein shall be read or implied so as to purport to exclude, restrict or modify or havet he effect of excluding, restricting or modifying the application in relation to the supply of Services herein contemplated of all or any of the provisions of Part V of the Trade Practices Act 1974 as amended or any relevant State Act or Territorial Ordinance which by law cannot be excluded, restricted or modified.
19. In addition to and without prejudice to the preceding terms and conditions, the Client undertakes that it will in all circumstances indemnify the Company against all liability suffered or incurred by the Company arising directly or indirectly from or in connection with the provision of Services irrespective of the cause of such liability including from negligence or breach of contract whether fundamental or otherwise and from wilful act or default of the Company or others in connection with the Goods or the Services.
20. Instructions to collect payment on delivery (COD) in cash or otherwise are accepted by the Company upon the condition that the Company will have no responsibility whatsoever for any failure to collect payment on delivery or for the consequences of any failure on the part of the Company, its servants or agents to collect such payment upon delivery irrespective of whether such failure is attributable to negligence or breach of contract, whether or not of a fundamental term or a fundamental breach of contract.
21. Perishable Goods which are not taken up immediately upon arrival or which are insufficiently addressed or marked or otherwise not readily identifiable may be sold or otherwise disposed of by theCompany without any notice to the Client and payment or tender of the nett proceeds of any sale after deduction of charges and expenses shall be deemed to constitute delivery.
22. The Company shall be entitled to sell or dispose of all non-perishable Goods which in the opinion of the Company cannot be delivered either because they are insufficiently or incorrectly addressed or because they are not collected or accepted by the consignee, or for any other reason whatsoever upon giving twenty one (21) days notice in writing to the Client at its last known address. All charges and expenses incurred in connection with the storage and sale or disposal of the Goods shall be paid by the Client and the Company shall be entitled to meet such charges and expenses out of the sale proceeds of the Goods.
23. Except under special arrangements previously made in writing, the Company will not accept or provide any Services in relation to bullion, coins, precious stones, jewellery, antiques, pictures, livestock or plants.Should any Client nevertheless deliver any such Goods to the Company otherwise than under special arrangements made in writing, the Company, without detracting from anything else provided for in these terms, shall be under no liability whatsoever for such Goods.
24. The agreement between the Company and the Client shall be governed by Victorian law and all disputes referred to the exclusive jurisdiction of the Victorian courts.
25. The use by a Client or the proffering by a Client of any document containing its terms and conditions shall in no way derogate from these terms and conditions, the whole of which, notwithstanding anything contained in any terms and conditions proffered by the Client, constitute the terms of the agreement entered into. Should it be said that any terms and conditions proffered by a Client are incorporated into any agreement between the Company and the Client, then any provision in any terms and conditions proffered by the Client which is contrary to these terms and conditions shall to the extent of such inconsistency be inapplicable.
26. The Company shall not be bound by any agreement purporting to vary these terms and conditions unless such agreement is in a written document signed on behalf of the Company by a director.
27. Any certificate of a director or secretary of the Company for the time being or any other person properly authorised by the Company shall be conclusive evidence as to any matter so certified.COPYRIGHT IFAA.