PENDLETON & CO TERMS AND CONDITIONS
(APPLICABLE TO PENDLETON SUBSIDIARIES IN SINGAPORE AND AUSTRALIA)
SECTION 1 – DISTRIBUTION TRADING CONDITIONS (MEAT/ SEAFOOD/ VEGETABLES/ FOOD PRODUCT IMPORT/EXPORT)
“GST” means Goods and Services Tax applicable in Australia.
“The Customer” where the context so permits shall include the customer named on page I of this credit application and any guarantors both jointly and severally.
“The Supplier” means “Pendleton & Co” which terms refer to and includes any one or more of the entities outlined on page I as applicable.
“The Guarantor” shall include one or more guarantors as applicable and if more than one on a joint and several basis.
The Customer (including the Customer and any Guarantor hereof) agrees to comply with the trading terms of Pendleton & Co (“the Supplier”) as prescribed herein or as may be notified by the Supplier to the Customer in writing from time to time.
- Sales Orders/Invoice and Deposits
- The Supplier may either accept or decline any order for goods by the Customer in whole or in part in the Supplier’s absolute discretion.
- The Customer may not cancel any order or refuse to accept delivery of goods ordered unless with the Supplier’s consent first obtained. In the event that the Customer attempts to cancel any order or refuses delivery the Supplier may take steps to recover the full invoice amount including any delivery costs and
- At the Supplier’s sole discretion a deposit may be required. The deposit amount or percentage of the Price will be stipulated at the time of the order of the Goods and shall become immediately due and payable.
- Delivery and Risk
- Unless otherwise agreed in writing the Customer authorises the Supplier to arrange for delivery of any goods ordered at the Customer’s expense but in the event that the Supplier decides to pay such costs the Customer agrees to reimburse the Supplier the full amount incurred or paid by the Supplier upon demand.
- Risk passes to the Customer upon despatch of goods from the Supplier’s premises.
- The Customer shall inspect goods immediately once they are received. The Seller will accept no liability for any claim made regarding the goods unless notified to the Supplier in writing strictly within 24hrs days from delivery to the Customer’s possession.
- Any delivery dates provided by the Supplier are only estimates in good faith and time shall not be of the essence in this regard.
- The Supplier shall not be liable for any delay in delivery including but not limited to such delay due to causes beyond the Supplier’s reasonable control including acts of god, act of civil or military authority, fire, strike, flood, epidemic, quarantine restriction, war, riot, civil commotion, acts of the Customer or any delay in transportation. In the event of delay due to such causes the estimated date of delivery shall be extended for a period equal to the time lost by reason of any such delay.
- To the maximum extent permitted by law the Supplier’s liability for any delay or non-delivery is excluded but is otherwise limited to the supply or replacement of the goods or equivalent goods (at the Supplier’s option) within a reasonable time.
- The Customer acknowledges that should the goods supplied be of a perishable nature the Customer has a duty of care and shall handle and store the goods in accordance with proper applicable standards and the Customer agrees to indemnify the Supplier against any claims for injury or death or loss or damage to any property arising out of or in connection with the supply of any such goods by the Supplier.
- The Customer acknowledges that claims are not recognized unless notified on the day of delivery.
- The Supplier submits any proposal/quotation and the Customer orders the goods subject to the following rights reserved by the Supplier:
(a) Price Variations – the Supplier shall be entitled to vary the prices quoted in the event of:
(i) Fluctuations in the value of the Australian Dollar or changes in the rates of taxes and duties affecting the costs of supply the goods between the date this quotation was submitted to the Customer and the date the goods are delivered;
(ii) Changes in the product specifications without prior notice to the Supplier resulting in a variation in the costs of acquiring the goods.
(iii) Request by the Customer for the supply of the items in non-standard packs or in quantities less than the minimum quantities advised by the Supplier.
(b) Correction of errors or omissions on invoices and credit notes, if applicable.
(c) Rescission of this agreement in the event of:
(i) The non-availability of any raw materials required by the Supplier within thirty (30) days from the date of acceptance by the Customer;
(ii) Amendments to the product specification by the Supplier’s supplier without prior notice to the Supplier resulting in the goods being unsuitable for the Customer’s purposes.
- Any quotation provided by the Supplier to the Customer shall be valid for a period of seven (7) days only.
- Delivery of the Goods to a third party nominated by the Customer is deemed to be delivered to the Customer for the purposes of this agreement.
- The Supplier may (in its discretion) accept the Goods for credit but this may incur a handling fee of of the value of the returned Goods plus any freight.
- Payment Terms
- The Customer shall pay to the Supplier the full amount of all amounts invoiced to the Customer (including any GST, transport, freight, delivery, service, hiring or finance fees or charges) strictly within the period stated on each invoice or statement (or if no period is stated 14 days from invoice shall apply) and the Customer hereby waives any right to set-off any amount which the Customer at any time claims is due and owing by the Supplier to the Customer.
- In the event that the Customer fails, refuses or neglects to pay any amounts strictly within the agreed terms of trade:
(a) The Supplier may in its discretion repossess the invoiced goods and proceed to recover any balance then remaining.
(b) The Customer shall be liable to pay to the Supplier monthly interest at the rate of 2.5% per month until the invoiced amount has been paid to the Supplier in full.
(c) The Customer shall pay or reimburse to the Supplier all recovery costs paid or payable by the company of whatever nature including (but not limited to) legal costs on a solicitor/own client basis, mercantile costs (including any fees, expenses, disbursements and/or commissions at a rate not exceeding a maximum of 15% of the total debt amount), accountancy fees, bank charges, statutory or government fees, stamp duty, search costs or other disbursement together with interest upon the above accruing at the rate of current bank overdraft rates on a monthly basis.
- In the event that:
(a) the Supplier retains possession or control of the Goods; and
(b) payment of the Price is due to the Supplier; and
(c) the Supplier has made demand in writing of the Customer for payment of the Price in terms of this contract; and
(d) the Supplier has not received the Price of the Goods, then, whether the property in the Goods has passed to the Customer or has remained with the Supplier, the Supplier may dispose of the Goods and may claim from the Customer the loss to the Supplier on such disposal.
- Any delivery dates provided by the Supplier are only estimates in good faith and time shall not be of the essence in this regard.
- Without prejudice to any other remedies the Supplier may have, if at any time the Customer is in breach of any obligation (including those relating to payment), the Supplier may suspend or terminate the supply of Goods to the Customer and any of its other obligations under the terms and conditions. The Supplier will not be liable to the Customer for any loss or damage the Customer suffers because the Supplier exercised its rights under this clause.
- If any account remains unpaid at the end of the second month after supply of the Goods or services the following shall apply: An immediate amount of the greater of $300.00 or 10% of the amount overdue shall be levied for administration fees which sum shall become immediately due and payable.
- Ownership of Goods
- Retention of Title
Property and title in Goods supplied under these conditions does not pass to the Customer until payment in full by the Customer is received by the Supplier in relation to such Goods and in relation to all other amounts owing to the Supplier by the Customer on any account whatsoever, until which time (subject always to clause 4.3):
- the Customer must not deal with any Goods to which the Supplier retains property and title in accordance with this paragraph 4 (“Retained Goods”) in any way inconsistently with the rights and interest of the Supplier as owner thereof; and
- the Customer must hold the Retained Goods as fiduciary bailee and agent for the Supplier, and the Customer must store the Retained Goods in such separate place and in such manner such that the Retained Goods are capable of being clearly identified as the Property of the Supplier.
- Possession of Retained Goods
Upon demand by the Supplier, which demand may be made at any time upon the Customer defaulting in any of its obligations under these conditions, the Customer must deliver all Retained Goods to the Supplier or as otherwise directed by the Supplier, The Supplier may enter upon any premises under the Customer’s control (whether occupied or not) for the purpose of recovering any Retained Goods the subject of a demand made in accordance with this paragraph and, in so entering upon such premises, the Supplier and its authorised representatives may use all reasonable force to obtain such possession and will not be trespassers. Further or in the alternative the Supplier may take copies of or extracts of the Customer’s records pertaining or apparently pertaining to any goods supplied. The authority to so enter premises is given by the Customer irrevocably.
- Sale of Retained Goods
The Customer may in the ordinary course of business, sell Retained Goods on behalf of the Supplier or mix or combine Retained Goods other goods in the course of a manufacturing process and sell the product or products thereof (“Products”), in which case the Customer must:
- keep separate records of all sales of such Retained Goods or Products;
- account to the Supplier for all proceeds of the sale of such Retained Goods or Products (as applicable); and
- keep a part of such proceeds equal to the total amount outstanding to the Supplier in relation to all Retained Goods in a separate account on trust for the Supplier and not to mix them with any other monies (including funds of the Customer) other than with other monies held on trust by the Customer for the Supplier.
A statement signed for or on behalf of the Supplier by the Supplier’s Business Partner, Manager, Director or the Supplier’s accountant or solicitor sent by ordinary post to the Customer’s last known address or email, shall be sufficient evidence at all times of the amount due to the Supplier by the Customer.
- Privacy Act/Personal Information
- The Customer’s personal information provided to the Supplier (including that information in this Commercial Credit Application) may be disclosed to a credit reporting agency for the purposes permitted by the Privacy Act 1988 (as amended or replaced from time to time) (“the Privacy Legislation”).
- In the process of assessing the Customer’s Commercial Credit Application, the Supplier is authorised to seek information relating to the Customer’s commercial activities or commercial creditworthiness from a credit repotting agency.
- In assessing the Customer’s application for commercial credit the Supplier is authorised to obtain from a credit reporting agency personal credit information about the Customer and the Supplier may give this information to whoever insures the Customer’s commercial credit with the Supplier.
- For the purpose of collecting overdue commercial credit payments due by the Customer to the Supplier, the supplier is authorised to receive personal information held on the Customer by a credit reporting agency.
- The Supplier is irrevocably authorised from time to time whilst the Customer is indebted to the Supplier in any way to:
- give to or obtain from any other credit provider(s) and/or provide to any insurer of the Customer’s commercial credit personal information held on the Customer for the particular purpose for which it is properly required (this can include creditworthiness, credit standing, credit history, credit capacity and loan indebtedness that credit providers are permitted to give or receive from each other under the Privacy Legislation);
- give the Supplier’s opinion on the Customer’s creditworthiness to another provider of credit;
- disclose monthly outstanding amounts and/or payout figures to the Customer’s authorised agent including the Customer’s solicitor, accountant, bank, finance, broker/dealer or supplier of goods and/or services acting for the Customer;
- give such agent if requested access to the personal credit information the Supplier holds on the Customer concerning the Customer’s credit application or the credit facility itself;
- give the information to the Customer or any one or more of the Customer’s guarantor(s), any Ombudsman or Tribunal, if requested, or such other person authorised by the Customer to have access to such information.
- The Customer will promptly advise the Supplier if there are any changes to the credit or personal information the Supplier holds on the Customer, The Customer acknowledges that the Supplier relies on the Customer to ensure that such information is kept up-to-date and complete, and no claim will be made against the Supplier where such information is found to be outdated, incomplete or inaccurate due to the Customer’s default in so advising the Supplier.
- The Customer expressly authorises and requests that the Supplier make all necessary enquiries with the trade references that the Customer has provided to the Supplier above.
- The Customer agrees that each and every one of the Customer’s acknowledgements and agreements remain in force until the Customer revoke(s) them by written notice to the Supplier but subject to and after fully discharging all liability owing by the Customer to the Supplier.
- That the full benefit of all the acknowledgements, declarations and agreements herein contained shall also pass to the party (if any) to whom the Customer’s liability and obligations to the Supplier may be assigned to by the Supplier. The Customer and any guarantor(s) so authorise the Supplier.
If at any time:
- sequestration order is made affecting the property of the Customer;
- the Customer executes an authority to a trustee under Section 1 88 of the Bankruptcy Act;
- the Customer commits any act of bankruptcy;
- any petition is issued or resolution passed for winding up of the Customer, or if the Customer is struck off the official register of companies;
- a receiver, manager, receiver and manager or provisional liquidator is appointed to the whole or part of the undetaking of the Customer;
- an official manager and/or administrator under the Corporations Law is appointed to the Customer;
- the Customer ceases to trade or carry on business in the usual manner or suffers its builders licence (if any) to be cancelled or restricted;
- the Customer defaults in duly and punctually paying when due any amount owing to the Supplier hereunder,
- without the prior written consent of the Supplier, the Customer reduces its share capital, or attempts to do so;
- any judgment, execution or other process of any Court or authority is issued against the Customer;
- the Customer suspends payment generally, or ceases or threatens to cease to carry on its business, or is unable to pay its debts as they fall due;
- without the prior written consent of the Supplier the Customer assigns, disposes of or parts with possession of the whole or a substantial part of its undertaking or assets or attempts to do so;
- the Customer being a corporation, if any person or persons who between them beneficially hold or control, directly or indirectly, at the date hereof more than fifty per cent (50%) of the voting, income and/or capital participation rights therein subsequently ceases to hold or control, directly or indirectly, more than fifty per cent (50%) of such rights, without the prior written consent of the Supplier;
- a cheque provided by the Customer to the Supplier be dishonoured; then notwithstanding the waiver of any previous default, there shall be deemed to have happened an event of default and the whole of any monies then outstanding to the Supplier from the Customer shall thereupon become due and payable immediately although any time otherwise appointed thereof may not have arrived and forthwith upon the determination of an event of default the Customer will pay all such monies outstanding to the Supplier without demand.
This agreement is made with the owners and/or directors of the Customer as at the date of application. The Customer shall notify the Supplier in writing within seven (7) days of any change whatsoever in ownership structure and, further, hereby indemnifies the Supplier against any loss or damage that may result from the Customer’s failure to notify the Supplier of any such change.
- Trustee Provisions
In the event that the Customer enters into this Agreement as a trustee of any trust or is giving this guarantee for the purposes of or in order to benefit any trust of which the Customer is a Trustee:
- The Customer shall be personally liable for performance of all terms, covenants, conditions and obligations herein contained.
- The Customer warrants that it has full, complete and valid authority pursuant to the Trust to enter into this Agreement.
- The rights of recourse of the Supplier shall not be limited to the Customer personally and the assets of the Customer but shall extend to relevant Trust assets.
- The Customer hereby charges all rights of indemnity which the Customer has or will have from time to time against the Trust fund or Trust property and covenants that such rights of indemnity have not been excluded by the provisions of the Trust or by any breach of Trust or otherwise and that the Customer will not release or otherwise prejudice such rights of indemnity.
- The Trustee or trustees of the Trust shall not be altered (save upon death of a trustee) unless the Supplier has been given written notice of and has consented to such alteration PROVIDED THAT such consent shall not be unreasonable withheld:
- None of the following powers shall be exercised by the trustee unless the Supplier is given written notice of and consents to such exercise PROVIDED THAT such consent shall not be unreasonably withheld:
- any power to alter or vary the trustee or trustees of the Trust whether by resignation, appointment or otherwise;
- any power to advance or distribute capital or income;
- any power to vary the terms of the Trust’,
- any power to resettle or vest the Trust property.
- any power to add any beneficiaries to the Trust.
- Any breach of trust by the trustee shall constitute a breach of this Agreement entitling the Supplier to exercise all such rights and remedies upon default as are contained in this Agreement or otherwise conferred by law.
- The Customer warrants that it has either secured or has had the opportunity to secure advice from solicitors familiar with the terms of the Trust that such terms create no impediment to the granting of the covenants in this clause nor create any reason why the covenants in this clause should be ineffective. AND all persons of full capacity (if any) whose consent or covenant would be necessary to ensure the effectiveness of the covenants of this clause are parties to this Agreement.
- Guarantee and Indemnity
In consideration of the Supplier extending or agreeing to extend credit to the Customer:
- The Guarantor GUARANTEES payment to the Supplier of all monies and the performance of all obligations including any past, present and future indebtedness or obligation by the Customer arising from any past, present or Future dealings with the Supplier,
- The Guarantor INDEMNIFIES the Supplier against all loss or damage arising from any past, present or future dealings with the Customer.
- The Guarantor AGREES:
- That this is a continuing guarantee;
- That the Guarantors liability under this guarantee is joint and several and will not be affected, waived or discharged by the reason of any time or indulgences granted by the Supplier or any grant to any of the guarantor’s of a release whether in whole or in part from any obligation contained in or complied by this guarantee and indemnity;
- That the Guarantors liability under this guarantee shall not be affected, waived or discharged by the Customer entering into a Deed of Company Arrange (“DOCA”) or by the Supplier voting in favour of or against, or abstaining from voting, in relation to any proposal by the Customer to enter a DOCA;
- That this guarantee becomes binding on such of the Guarantors that sign this guarantee irrespective of whether or not all intended signatories execute this guarantee;
- That the Supplier is entitled to recover against a Guarantor without having first taken steps to recover against the Customer or any other Guarantor;
- That this guarantee may only be revoked as to future trading with the Applicant and any notice of revocation may only be given by pre-paid registered mail delivered to the Supplier at the address stated on the face of this Credit Application and shall not become effective until the expiration of 14 days from the date of posting;
- That any payment which is subsequently avoided by any law relating in insolvency shall be deemed not to have been paid; and
- That we sign in both our personal capacity and as Trustee of every Trust of which we are Trustee and/or a beneficiary.
- The Customer and Guarantor hereby pledge and charge all the freehold and leasehold interest in land and also all personal property held by the Guarantor both of which the Guarantor is now possessed and which the Guarantor may hereafter acquire (the pledge and charge attaching ipso facto from the point of acquisition) with payment of all monies due and owing from time to time to the Supplier by the Customer (including all recovery, mercantile and collection costs and commissions). The Guarantor further agrees that immediately upon demand by the Supplier so to do the Guarantor will execute and deliver to the Supplier such Bill of Mortgage, Bill of Sale, Mortgage Debenture or other like instrument or consent to such Caveat as the Supplier shall require to be executed and delivered or consented to by the Guarantor and in the event that the Guarantor shall neglect or fail to do so or alternatively in the event that the Supplier chooses in its sole and unfettered discretion so to do the Guarantor HEREBY IRREVOCABLY APPOINTS the Supplier an/or any Manager, Secretary, Credit Manager or Solicitor of the Supplier to be the lawful attorney of the Guarantor for the purpose of executing and registering such instrument and/or executing a consent on behalf to the Guarantor to any Caveat required by the Supplier and any such Attorney may act according to the terms hereof without being liable for any cause whatsoever.
- Personal Properties Securities Act 2009 (Cth)
With respect to the Personal Properties Security Act 2009 (Cth):
- The Customer and the Guarantor/s hereby acknowledge that these Terms and Conditions of Trade constitute a Security Agreement which creates a Security Interest in favour of Pendleton & Co and in all Goods including services previously supplied by Pendleton & Co to the Customer and all after acquired Goods including services supplied to the Customer by Pendleton & Co to secure the payment from time to time and at a time, including future advances.
- The Customer and the Guarantor/s give Pendleton & Co a Security Interest in all of their present and after-acquired property in which Goods including services supplied or financed by Pendleton & Co have been attached or incorporated, including any Commingled goods.
- The Customer and the Guarantor/s acknowledge and agree that by agreeing to these Terms and Conditions of Trade, they grant a Security Interest (by virtue of the retention of title clause in these Terms and Conditions of Trade) to Pendleton & Co and in all Goods including services previously supplied by Pendleton & Co to the Customer and these Terms and Conditions of Trade shall apply notwithstanding anything express or implied to the contrary contained in Your purchase order. The Customer and Guarantor’s additionally agree that Pendleton & Co can without notice to the Customer seek Registration of its Security Interest as a purchase money security interest on the PPSR and under the PPSA.
- The Customer and the Guarantor/s acknowledge, agree and undertake to:
- Sign any further documents and/or provide any further information (which information the Customer warrant to be complete, accurate and up-to-date in all respects) which Pendleton & Co may reasonably require to enable perfection of its Security Interest or registration of a financing statement or financing change statement on the PPSR;
- Not register a financing change statement as defined in section 10 of the PPSA or make a demand to alter the financing statement pursuant to section 178 of the PPSA in respect of the Goods including any services without the prior written consent of Pendleton & Co;
- Give Pendleton & Co not less than 14 days written notice of any proposed name change in and/or any other changes of details (including but not limited to, changes in address, facsimile number, email address, trading name or business practice);
- Pay all costs incurred by Pendleton & Co in the Registration and maintenance its Financing Statement to enable Registration of its Security Interest (including registering a Financing Change Statement) on the PPSR such costs shall not exceed the regulated cost for registering or maintaining (updating) a Security Interest, as amended from time to time, together with an administrative charge of $10.00 per Registration and/or amendment to, a Security Interest, as a genuine pre-estimate of Pendleton & Co costs, and/or enforcing or attempting to enforce the Security Interest created by these Terms and Conditions of Trade including but not limited to, executing subordination agreements;
- Be responsible for the full costs incurred by Pendleton & Co (including actual legal fees and disbursements on a solicitor and client basis) in obtaining an order pursuant to section 182 of the PPSA;
- Acknowledge and agree to waive any rights that they may have had under section 115 of the PPSA upon enforcement;
- Pursuant to section 157 of the PPSA, unless otherwise agreed in writing by Pendleton & Co, agree to waive the right to receive the Verification Statement in respect of any Financing Statement or Financing interest statement relating to the Security Interest;
- Agree that immediately on request by Pendleton & Co to procure from any persons considered by Pendleton & Co to be relevant to its security position, such agreement and waivers as Pendleton & Co may at any time require.
- Release and hold hamless Pendleton & Co from any liability whatsoever in the event of any dispute between Pendleton & Co as to whether any interest registered on the PPSR constitutes a valid Security Interest.
- Indemnify Pendleton & Co from any cost reasonably incurred by Pendleton & Co in amending or withdrawing any Security interest registered by Pendleton & Co over any Goods sold, even if the registration has occurred through error or mistake on behalf of Pendleton & Co.
This Agreement shall be governed by and construed in accordance with the laws of the State of Western Australia and:
- The Supplier shall have the exclusive right to nominate the Court in which any legal action is to be commenced; and
- The Customer shall consent to a permanent stay of any proceedings which may have been commenced by the Customer in a Court not nominated by the Supplier.
Each clause or sub-clause of this Agreement is severable from the others and if any part is invalid or unenforceable for any reason such invalidity or unenforceability shall not affect in any way effect the validity or enforceability of any other part,
NOTE: ALL NEW ACCOUNT FORMS AND CREDIT ACCOUNT FORMS ARE AN IMPORTANT DOCUMENT. BY EXECUTING THESE DOCUMENT ALL SIGNATORIES TO IT CONFIRM THAT THE INFORMATION PROVIDED [N SUPPORT OF THIS APPLICATION IS TRUE AND CORRECT AND THAT EACH HAS READ AND UNDERSTOOD THIS DOCUMENT AND HAS EITHER RECEIVED OR HAS HAD OPPORTUNITY TO OBTAIN INDEPENDENT LEGAL OR FINANCIAL ADVICE.
SECTION 2 – FREIGHT FORWARD / TRANSPORT AND LOGISTICS TRADING CONDITIONS
PART I: General Conditions
1.1 Subject to Clause 1.2, all Services of the Company whether gratuitous or not are undertaken subject to these Conditions and not otherwise and:
(a) The provisions of Part I shall apply to all Services.
(b) The provisions of Part II shall only apply to the extent that the Services are provided by the Company as agents.
(c) The provisions of Part III shall only apply to the extent that such services are provided by the Company as principals.
1.2 Where a document is issued by or on behalf of the Company and bears the title of, or includes the words, “bill of lading” (whether or not negotiable), or sea or air “waybill” and provides that the Company contracts as carrier, the provisions set out in that document, if inconsistent with these Conditions, shall be paramount and prevail over these Conditions to the extent that such provisions are inconsistent but no further.
1.3 Any variation, cancellation or waiver of these Conditions (or any of them) must be in writing signed by a Director of the Company. No other person has or will be given any authority whatsoever to agree to any variation, cancellation or waiver of these Conditions.
1.4 Any instructions received by the Company from the Customer for the supply of Services shall constitute acknowledgement by the Customer that it has received, understands and agrees to be bound by these Conditions and will be bound by these Conditions. Such instructions received by the Company from the Customer for the supply of Services and/or any supply of goods shall also constitute authorisation for the Company to act on behalf of the Customer in accordance with these Conditions.
- Provision of Services
2.1 All Services are provided by the Company as agents only, except in the following circumstances where the Company acts as principal:
(a) where the Company performs any carriage, handling or storage of Goods, but only to the extent that the carriage is performed by the Company itself or its servants and the Goods are in the actual custody and control of the Company; or
(b) where, prior to the commencement of the carriage of Goods, the Customer in writing demands from the Company particulars of the identity, services or charges of persons instructed by the Company to perform part or all of the carriage, and the Company fails to give the particulars demanded within 28 days. However, for the purposes of this sub-clause, the Company shall only be deemed to be contracting as a principal in respect of that part of the carriage which the Company fails to give the particulars demanded.; or
(c) to the extent that the Company expressly agrees in writing to act as a principal, or
(d) to the extent that the Company is held by a court of law to have acted as a principal.
2.2 Without prejudice to the generality of clause 2.1;
(a) the charging by the Company of a fixed price for any Services whatsoever shall not in itself determine or be evidence that the Company is acting as an agent or a principal in respect of those Services.
(b) the supplying by the Company of its own or leased equipment shall not in itself determine or be evidence that the Company is acting as agent or a principal in respect of any carriage, handling or storage of Goods;
(c) the Company acts as an agent where the Company procures a bill of lading, sea or air waybill or other document evidencing a contract of carriage between a person, other than the Company, and the Customer or Owner;
(d) the Company acts as an agent and never as a principal when providing Services as a customs broker in respect of or relating to customs requirements, taxes, licenses, consular documents, certificates of origin, inspection, certificates and other similar services or when providing any other services whatsoever for or on behalf of the Customer.
2.3 The Company is not a common carrier and will accept no liability as such and it reserves the right to accept or refuse the carriage of any Goods or any other Service at its discretion. All Services are performed subject only to these Conditions (and when applicable but subject to clause 21.6, the conditions on any bill of lading or seaway bill or air waybill issued by the Company as principal).
In these Conditions:
(a) “Authority” means a duly constituted legal or administrative person, acting within its legal powers and exercising jurisdiction within any nation, state, municipality, port or airport;
(b) “Company” is Pendleton & Co Pty Ltd, ACN 612 148 151
(c) “Container” includes any container, flexitank, trailer, transportable tank, flat, pallet or any article of transport used to carry or consolidate goods and any equipment of or connected thereto;
(d) “Customer” means any person at whose request or on whose behalf the Company provides a service;
(e) “Dangerous Goods” includes goods which are or may become of a dangerous, inflammable, radio-active or damaging nature and goods likely to harbour or encourage vermin or other pests;
(f) “Force Majeure Event” means any cause or causes beyond the control of the party whose performance is directly affected by it, including but not limited to war (declared or undeclared), rebellion, revolution, tumults, political disturbance, accident to wharf, accidents at works or wharf, at receivers’ works or wharf, breakdown or stoppage of slurry pipeline, transfer vessels, motor vehicles or any part of the works from which the Goods are supplied or to which the Goods are destined, including loading and/or discharging facilities, installations and/or equipment at or en route, partial or total stoppage of roads, rivers or channels, riot, insurrection, civil commotion, epidemics, quarantine, strike, lockout, blockade, industrial disturbance, labour/industrial disputes or stoppages of miners, workmen, lightermen, tugboatmen or other hands essential to the working, carriage, delivery, shipment or discharge of the said Goods whether partial or general, interference of trade unions, act of God, fire, floods, storm, tempest, volcanic eruption, earthquake, landslips, frost or snow, bad weather, intervention of sanitary, customs, and/or other constituted authorities, act of government (whether de-facto or de-jure) and supervening illegality, or any other cause beyond the control of the Company. Act of government shall include, but is not limited to, the refusal to grant any necessary import or export licence;
(g) “Goods” mean all goods and equipment that Pendleton & Co Pty Ltd supplies to the Customer on a sale, bailment, consignment or any other basis. In addition, “goods” includes the cargo and any container not supplied by or on behalf of the Company, in respect of which the Company provides a service;
(h) “Hague-Visby-Rules” means the provisions of the International Convention for the Unification of certain rules Relating to Bills of Lading signed at Brussels on 25th August 1924 as amended by the Visby Protocol of 23rd February 1968 and the SDR Protocol of 21st December 1979;
(i) “Incidental Matters” means anything done or to be done in relation to the Goods or the provision of any services ancillary to the Goods including but not limited to moving, storing or leaving the Goods at any warehouse, terminal, yard, wharf or other place or area, loading or unloading the Goods from any vehicle, vessel or other conveyance, stowing or packing the Goods or fumigating, transhipping, inspecting or otherwise handling the Goods or anything done in relation thereto;
(j) “Insolvency Event” means if any (or more than one) of the following occur with respect to a Customer:
(i) the Customer becomes insolvent or is otherwise unable to pay its debts as and when they fall due;
(ii) the Customer (or any third party) institutes any insolvency, receivership or bankruptcy proceedings with respect to the Customer, for the settlement of the Customer’s debts;
(iii) the Customer makes a general assignment for the benefit of creditors; or
(iv) the Customer ceases to conduct business.
(k) “Instructions” means a statement of the Customer’s specific requirements;
(l) “Montreal Convention” means the Convention for the Unification of Certain Rules relating to International Carriage by Air, signed in Montreal in 1999 (Montreal Convention) as applied respectively by the legislation of the Commonwealth of Australia;
(m) “Owner” includes the owner, shipper and consignee of the Goods and any other person who is or may become interested in the Goods and anyone acting on their behalf;
(m) “Person” includes individuals, partnerships, firms trusts, associates or any body or bodies corporate;
(o) “PPSA” means the Personal Property Securities Act 2009 (Cth);
(p) “Services” means the whole of the Services provided by the Company to the Customer and all matters necessarily related to the provision of the Services or ancillary to the provision of the Services;
- Obligations of Customer
4.1 The Customer warrants that it is either the Owner or the authorised agent of the Owner of the Goods and that it is authorised to accept and accepts these Conditions, not only for itself, but also as agent for and on behalf of the Owner.
4.2 The Customer warrants that it has reasonable knowledge of matters affecting the conduct of its business, including, but not limited to, the terms of sale and purchase of the Goods and all other matters relating thereto.
4.3 The Customer shall give sufficient and executable instructions.
4.4 The Customer warrants that the description and particulars of the Goods are complete and correct.
4.5 The Customer warrants that the Goods are properly packed and labelled, except where the Company has accepted instructions in respect of packaging and/or labelling.
- Special Instructions, Goods and Services
5.1 Unless agreed in writing, the Customer shall not deliver to the Company, or cause the Company to deal with or handle, Dangerous Goods.
5.2 If the Customer is in breach of Clause 5.1:
(a) the Customer shall be liable for all loss or damage whatsoever caused by or to or in connection with the Goods howsoever arising;
(b) the Customer shall defend, indemnify and hold harmless the Company against all penalties, claims, damages, costs and expenses whatsoever arising in connection therewith; and
(c) the Company (or any other person in whose custody the Goods may be in at the relevant time) may, at the Company’s sole discretion, have the Goods destroyed or otherwise dealt with (without compensation to the Customer or liability on the Company). For the purposes of this sub-clause, notice is not required to be given to any person of the intention to destroy or otherwise deal with the Goods.
5.3 If the Company agrees to accept Dangerous Goods and then it (or any other person) reasonably forms the view that those Goods constitute a risk to other goods, property, life or health, it may (without notice or compensation to the Customer and without liability on the Customer) have the Goods destroyed or otherwise dealt with at the expense of the Customer or Owner.
5.4 The Customer undertakes not to tender for transportation any Goods which require temperature control without previously giving written notice of their nature and the particular temperature range to be maintained and, in the case of a temperature controlled Container packed or stuffed by or on behalf of the Customer, the Customer further undertakes that:-
(a) the Container has been properly pre-cooled or pre-heated as appropriate;
(b) the Goods have been properly packed or stuffed in the Container; and
(c) the Container’s thermostatic controls have been properly set by the Customer.
5.5 If the requirements of Clause 5.4 are not complied with the Company shall not be liable for any loss of or damage to the Goods caused by such non-compliance.
5.6 Unless agreed in writing, the Company shall not be obliged to make any declaration for the purposes of any statute, convention or contract as to the nature or value of any Goods or as to any special interest in delivery or to make any declaration as to specific stowage requirements of any Goods.
5.7 Unless agreed in writing or otherwise provided for under the provisions of a document signed by the Company, instructions relating to the delivery or release of Goods against payment or against surrender of a particular document shall be in writing and the Company’s liability shall not exceed that provided for in respect of misdelivery of Goods.
5.8 Unless agreed in writing that the Goods shall depart by or arrive by a particular date, the Company accepts no responsibility for departure or arrival dates of Goods.
6.1 Insurance of the Goods is the responsibility of the Customer. The Company does not issue insurance. Upon request, the Company will provide the Customer with the contact details of insurance companies / brokers and assist the Customer so that the Customer can obtain insurance from them directly. All such insurances are subject to the usual exceptions and conditions of the policies of the insurance company or underwriters taking the risk.
- General Indemnities and Liabilities of the Customer and Owner
7.1 The Customer and Owner shall defend, indemnify and hold harmless the Company against all liability, loss, damage, costs and expenses howsoever arising:
(a) from the nature of the Goods, other than to the extent caused by the Company’s negligence,
(b) out of the Company acting in accordance with the Customer’s or Owner’s instructions, or
(c) from a breach of warranty or obligation by the Customer or arising from the negligence of the Customer or Owner.
7.2 Except to the extent caused by the Company’s negligence, the Customer and Owner shall be liable for and shall defend, indemnify and hold harmless the Company in respect of all duties, taxes, imposts, levies, deposits and outlays whatsoever levied by any Authority and for all payments, fines, costs, expenses, loss and damage whatsoever incurred or sustained by the Company in connection therewith.
7.3 Advice and information, in whatever form it may be given, is provided by the Company for the Customer only and the Customer shall defend, indemnify and hold harmless the Company for all liability, loss, damage, costs and expenses arising out of any other person relying on such advice or information.
7.4 The Customer shall be liable for the loss, damage, contamination, soiling, delay detention or demurrage whether arising before, during and after the Carriage of property of:
(a) the Company (including, but not limited to, Containers);
(b) the Company’s servants, sub-contractors or agents;
(c) independent contractors engaged by the Company for performance of part or all of the Services;
(d) any person; or
(e) any vessel
caused by the Customer or Owner or any person acting on behalf of either of them or for which the Customer is otherwise responsible and will defend, indemnify and hold harmless the Company in respect of the same.
7.5 Instructions to collect payment on delivery in cash or otherwise are accepted by the Company upon and on the condition that the Company in the matter of such collection will be liable for the exercise of reasonable diligence and care only. Unless express written instructions are received that the Goods are not to be delivered without payment, the Company accepts no liability if, upon delivery of the goods, payment is not made.
8.1 The Customer undertakes that no claim will be made against any servant, sub-contractor or agent of the Company which imposes or attempts to impose upon any of them any liability whatsoever in connection with the Goods. If any such claim should nevertheless be made, the Customer undertakes to indemnify the Company against all consequences thereof.
8.2 Without prejudice to Clause 8.1, every servant, sub-contractor or agent of the Company shall have the benefit of all provisions herein as if such provisions were expressly for their benefit. In entering into this contract, the Company, to the extent of those provisions, does so not only on its behalf, but as agent and trustee for such servants, sub-contractors and agents.
8.3 The Customer shall defend, indemnify and hold harmless the Company from and against all claims, costs and demands whatsoever and by whomsoever made or preferred, in excess of the liability of the Company under these Conditions.
8.4 Without prejudice to the generality of this Clause 8, the indemnity referred to in Clause 8.3, shall cover all claims, costs and demands arising from or in connection with the negligence of the Company, its servants, sub-contractors and agents.
8.5 In this Clause, “sub-contractors” includes direct and indirect sub-contractors and their respective employees, servants and agents.
- Charges etc.
9.1 The Customer shall pay to the Company in cash, or as agreed, all sums immediately when due without deduction or deferment on account of any claim, counterclaim or set-off.
9.2 When the Company is instructed to collect freight, duties, charges or other expenses from any person other than the Customer, the Customer:
(a) shall remain responsible for these amounts; and
(b) shall pay these amounts to the Company on demand where these amounts have become due and have not been paid by such other person.
9.3 On all accounts overdue to the Company, the Company shall be entitled without notice to charge default interest to be calculated at the rate 4 per cent above the base interest rate of the Company’s bank applicable during the periods that such amounts are overdue for the period from the due date until the date of payment in full.
9.4 The Customer shall be liable for and pay to the Company any additional costs or expenses the Company may incur and for any loss or damage occasioned either directly or indirectly to the Company as a result of the Company relying upon the description and particulars provided by the Customer or by reason of any illegal, incorrect or insufficient marking, numbering or addressing of the Goods.
9.5 The charging by the Company of a fixed price for any Services whatsoever shall not in itself determine or be evidence that the Company is acting as an agent or a principal in respect of those services. 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. Where any amount charged by the Company is described as a disbursement (or similar expression), such amount will include the forwarder’s handling and administration fee in respect of the same and the fee is not required to be separately disclosed.
9.6 The Customer acknowledges that the Company has a pecuniary interest in all contracts entered into by the forwarder as its agent in terms of these Conditions and agrees that the Company may receive and retain all brokerages, commissions, allowances and other remunerations paid by the other party to the contract and customarily retained by or paid to forwarding agents, in addition to the charges and expenses invoiced to the Customer, and need not disclose to the Customer the nature or amount thereof. The Company may charge by weight, measurement or value and may at any time reweigh, remeasure or revalue the Goods (or request same) and charge additional fees accordingly.
9.7 Unless otherwise stated, all charges quoted are exclusive of Goods and Services Tax (GST).
- Liberties and Rights of the Company
10.1 Unless otherwise agreed in writing, the Company shall be entitled to enter into contracts on behalf of itself or the Customer and without notice to the Customer:
(a) for the carriage of Goods by any route, means or person,
(b) for the carriage of Goods of any description, whether containerised or not, on or under the deck of any vessel,
(c) for the storage, packing, transhipment, loading, unloading or handling of Goods by any person at any place whether on shore or afloat and for any length of time,
(d) for the carriage or storage of Goods in containers or with other goods of whatever nature,
(e) for the performance of its own obligations, and to do such acts as the Company reasonably considers may be necessary or incidental to the performance of the Company’s obligations.
10.2 The Company shall be entitled (without incurring any additional liability), but shall be under no obligation, to depart from the Customer’s instructions in any respect if the Company considers there is good reason to do so in the Customer’s interest.
10.3 The Company may at any time comply with the orders or recommendations given by any Authority. The responsibility and liability of the Company in respect of the Goods shall cease on the delivery or other disposition of the Goods in accordance with such orders or recommendations.
10.4 The Company shall be entitled (but under no obligation) at any time and from time to time to inspect the Goods and for this purpose to open or remove any Containers.
10.5 If at any time the Company reasonably considers that the carriage of the Goods should not be undertaken or continued or only continued after effecting any necessary Incidental Matters or incurring additional expense or risk, the Company shall be entitled to:
(a) abandon the carriage of such cargo or to effect such additional Incidental Matters and incur such additional expense, as may be reasonably necessary in order to enable the carriage to be effected or further effected; and
(b) be reimbursed by the Customer for the cost of all such additional Incidental Matters and all such additional expense incurred.
10.6 If the Company (or any person whose services the Company makes use of) considers:
(a) the performance of the Company’s obligations are likely to be effected by any hindrance, risk, delay, difficulty or disadvantage whatsoever; and
(b) the hindrance, risk, delay, difficulty or disadvantage cannot be avoided by reasonable endeavours of the Company or such other person,
the Company may (upon giving notice in writing to the Customer or Owner) treat the performance of its obligations as terminated and may, at the Customer’s expense, place the Goods or any part of them at the Customer’s or Owner’s disposal at any place which the Company deems safe and convenient.
10.7 The notice in writing referred to in Clause 10.6 is not required where it is not reasonably possible to give such notice.
10.8 Where the Company exercises its rights and obligations under Clause 10.6, responsibility and liability of the Company in respect of the Goods shall thereupon cease absolutely.
10.9 Where the Company (or any person whose services the Company makes use of) is entitled to call upon the Customer or Owner to take delivery of the Goods at a designated time and place and delivery of the Goods, or any part thereof, is not taken by the Customer or Owner at the designated time and place the Company (or such other person) shall be entitled to store the Goods in the open or under cover at the sole risk and expense of the Customer.
10.10 Notwithstanding Clauses 10.6 to 10.9, the Company shall be entitled (but under no obligation) without any responsibility or liability to the Customer and Owner, to sell or dispose of
(a) all Goods which the Company considers cannot be delivered as instructed, but only upon giving 21 days notice in writing to the Customer, and
(b) without notice, Goods which have perished, deteriorated or altered, or are in immediate prospect of doing so in a manner which has caused (or may be reasonably expected to cause) loss or damage to any person or property or to contravene applicable regulations.
10.11 Where the Company sells or disposes of Goods pursuant to Clause 10.10 the Customer shall be responsible for any costs and expenses of the sale or disposal.
10.12 The Company shall be entitled to retain and be paid all brokerages, commissions, allowances and other remunerations customarily retained by or paid to freight forwarders without notice to the Customer.
10.13. The Company shall have the right to enforce against the Owner and the Customer jointly and severally any liability of the Customer under these Conditions or to recover from them any sums to be paid by the Customer which upon demand have not been paid.
- Security Interest
11.1 Special and General Lien: From the time the Company, or its servants or agents, receive the Goods into its custody, the Company, its servants or agents shall have a special and general lien on the Goods and a right to sell the Goods whether by public or private sale or auction without notice, for any unpaid amounts for freight, demurrage, container detention charges, duty, fines, penalties, salvage, average of any kind whatsoever and without limitation and for any and all debts, charges, expenses or any other sums due and owing by the Customer or the Customer’s principals, servants or agents. In addition, the lien shall cover the all costs and expenses of exercising the lien, including the costs of a public or private sale or auction, including legal costs and administration costs. The lien and rights granted by this) Clause 11.1 shall survive delivery of the Goods and the Company shall be entitled to retain the proceeds of sale of the Goods in respect of any outstanding amounts whatsoever referred to in this clause. The Customer accepts that any sums due and owing by the Customer are secured debts and that any payment made to the Company in discharge of the Company’s lien does not amount to a preference, priority or advantage in any manner or turn. The Company sells or otherwise disposes of such Goods pursuant to this Clause 11.1as principal and not as agent and is not the trustee of the power of sale.
11.2 Continuing Security Interest: From the time the Company, or its servants or agents, receive the Goods into its custody, the Goods, and all of the Customer’s present and future rights in relation to the Goods, are subject to a continuing security interest in favour of Company for the payment of all amounts for freight, demurrage, container detention charges, duty, fines, penalties, salvage, average of any kind whatsoever and without limitation and for any and all debts, charges, expenses or any other sums due and owing by the Customer or the Customer’s principals, servants or agents. In addition, the continuing security interest shall cover all the costs and expenses of exercising the lien, including the costs of a public or private sale or auction, including legal costs and administration costs.
11.3 Custody and Possession: For the purposes of these Conditions, and in particular Clauses 11.1 and 11.2 the Company shall be deemed to have custody and possession of the Goods whether the Goods are in the actual physical custody and possession of the Company or of any subcontractors, servants or agents, and whether or not the Company is in possession of any documents of title relating to the Goods. The Customer and the Company agree that the Company has possession of the Goods within the meaning of section 24 of the PPSA, even if the Goods are in the possession of the Company’s subcontractors, servants or agents.
11.4 Registration of Security Interest: The Customer acknowledges that Company may, at the Customer’s cost, register its security interest in the Goods, and all of the Customer’s present and future rights in relation to the Goods, on the Personal Property Securities Register established under PPSA.
11.5 Provide Information: 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 Company in writing at least 14 days before such change takes effect.
11.6 Contracting Out and Waiver:
(a) The Company need not give any notice to the Customer or any other person (including a notice of verification statement) unless the notice is required to be given by the PPSA and cannot be excluded.
(b) The Customer and the Company agree pursuant to section 115 of the PPSA that Sections 125, 142 and 143 of the PPSA do not apply to this Agreement.
(c) The Customer, pursuant to section 115 of the PPSA, waives its right to receive any notice, details or other document from the Company under Sections 95, 121(4), 130, 135, 132(3)(d) and 132(4) of the PPSA.
11.7 Customer’s Obligations: The Customer will not:
(a) permit to subsist any other security interest in relation to the Goods which would rank ahead of the Company ’s interest; or
(b) except in the normal course of business, sell, lease or dispose of, or permit the sale, lease or disposal of, the Goods.
11.8 Company’s Rights: In addition to any rights the Company has under the PPSA, the Company shall have the right, as the Customer’s agent, at any time while any amounts owing by the Customer to the Company under any Contract remains outstanding, to enter into the premises where Goods are stored and remove them without being responsible for any damage caused in doing so. The Customer shall indemnify the Company for all such moneys and all costs, charges and expenses in repossessing the Goods.
11.9 Confidentiality: The Customer and the Company agree not to disclose information of the kind mentioned in Section 275(1) of the PPSA, except in circumstances required by Sections 275(7) (b) to (e) of the PPSA. The Customer agrees that it will only authorise the disclosure of information under Section 275(7)(c), or request information under Section 275(7)(d), unless the Company approves. Nothing in this Clause 11.9 will prevent any disclosure by the Company that it believes is necessary to comply with its other obligations under the PPSA or any other law.
12.1 If a Container has not been packed or stuffed by the Company, the Company shall not be liable for loss of or damage to the contents if caused by:
(a) the manner in which the Container has been packed or stuffed;
(b) the unsuitability of the contents for carriage in Containers, unless the Company has approved the suitability;
(c) the unsuitability or defective condition of the Container, provided that where the Container has been supplied by or on behalf of the Company this paragraph (c) shall only apply if the unsuitability or defective condition of the Container:
(i) arose without any negligence on the part of the Company; or
(ii) would have been apparent upon reasonable inspection by the Customer or Owner or person acting on behalf of either of them.
(d) the fact that the Container is not sealed at the commencement of the carriage, except where the Company has agreed to seal the Container.
12.2 The Customer shall defend, indemnify and hold harmless the Company against all liability, loss, damage, costs and expenses arising from one or more of the matters referred to in Clause 12.1.
12.3 Where the Company is instructed to provide a Container, in the absence of a written request to the contrary, the Company is not under an obligation to provide a Container of any particular type or quality.
12.4 The Customer agrees to indemnify and keep indemnified the Company for all hire and other charges charged for the Customer’s use of Containers provided by the Company, and for any costs incurred by the Company for the cleaning of Containers.
- General Liability
13.1 Except where otherwise provided in these Conditions, the Company shall not be liable for any loss or damage whatsoever arising from:
(a) the act or omission of the Customer or Owner or any person acting on their behalf,
(b) compliance with the instructions given to the Company by the Customer, Owner or any other person entitled to give them,
(c) insufficiency of the packing or labelling of the Goods, except where such service has been provided as a Service by the Company,
(d) handling, loading, stowage or unloading of the Goods by the Customer or Owner or any person acting on their behalf,
(e) inherent vice of the Goods,
(f) riots, civil commotions, strikes, lockouts, stoppage or restraint of labour from whatsoever cause,
(g) fire, flood, storm, explosion or theft,
(h) any Force Majeure Event, or
(i) any other cause which the Company could not avoid and the consequences whereof it could not prevent by the exercise of reasonable diligence.
13.2 Subject to Clause 5.8, the Company shall not be liable for loss or damage howsoever caused (whether or not direct, indirect or consequential) to property other than the Goods themselves and shall not be liable for any pure economic loss or loss of profit (or similar claim) , delay or deviation howsoever arising.
- Limits of Liability
14.1 Except in so far as otherwise provided by these Conditions, the liability of the Company, howsoever arising, shall not exceed the following:
(a) in respect of all claims other than those subject to the provisions of Clause 14.4 whichever is the lesser of:
(i) the value of, or
(ii) the equivalent of US$2.00 per gross kilogram in the currency of the loss or damage, (the exchange rate to apply being the rate as at the date of the delivery of the Goods) of,
the Goods lost, damaged, misdirected, misdelivered or in respect of which a claim arises.
(b) in respect of claims for delay where not excluded by the provisions of these Conditions, the amount of the Company’s charges in respect of the Goods delayed.
14.2 The limitation of liability referred to in Clause 14.1 shall apply notwithstanding that the cause of the loss or damage is unexplained.
14.3 If agreed in writing prior to receipt of the Goods, the Company may accept liability in excess of the limits set out in these Conditions upon the Customer agreeing to pay the Company’s additional charges for accepting such increased liability. Details of the Company’s additional charges will be provided upon request.
14.4 The value of the goods shall be calculated by reference to the invoice value of the Goods plus freight and insurance if paid.
14.5 If there be no invoice value for the Goods, the value of the goods shall be calculated by reference to the value of such Goods at the place and time when they were delivered to the Customer or Owner or should have been so delivered. The value of the Goods shall be fixed according to the current market price, or, if there be no commodity exchange price or current market price, by reference to the normal value of goods of the same kind and quality.
14.6 Unless agreed in writing prior to receipt, the Company will not accept or deal with bullion, coin, precious stone, jewellery, antiques, works of art or other valuable Goods. Should any Customer nevertheless deliver any such Goods to the Company or cause the Company to handle or deal with any such Goods other than in accordance with prior written agreement, the Company shall be under no liability whatsoever for or in connection with such Goods howsoever arising.
14.7 The liability of the Company arising out of any one incident for breach of a any right or guarantee the Customer may have under the Competition and Consumer Act 2010 and the Australian Consumer Law, or comparable legislation in each of the States and Territories of Australia, or howsoever arising is limited to any of the following as determined by the Company:
(a) the supplying of the services again; or
(b) the payment of the cost of having the services supplied again; or
(c) the value of the Goods the subject of the services at the time the Goods were received by the Company,
whichever is lower.
- Notice of Loss, Time bar
15.1 The Company shall be discharged of all liability unless:
(a) notice of any claim is received by the Company or its agent in writing within 14 days after the date specified in Clause 15.2, or within a reasonable time after that date if the Customer proves that it was impossible to so notify, and
(b) suit is brought in the proper forum and written notice thereof received by the Company within 9 months after the date specified in Clause 15.2.
15.2 For the purposes of Clause 15.1, the applicable dates are:
(a) in the case of loss or damage to Goods, the date of delivery of the Goods,
(b) in the case of delay or non-delivery of the Goods, the date that the Goods should have been delivered,
(c) in any other case, the event giving rise to the claim.
- General Average
16.1 The Customer shall defend, indemnify and hold harmless the Company in respect of any claims of a General Average nature, including any claims or demands for General Average security which may be made on the Company, and the Customer shall forthwith provide such security as may be required by the Company in this connection.
Any notice served by post shall be deemed to have been given on the third day following the day on which it was posted to the address last known to the Company to be the address of the recipient of the notice.
17.2 Defences and Limits of Liability
The defences and limits of liability provided in these Conditions shall apply in any action against the Company whether founded in contract or in tort or howsoever otherwise founded.
(a) If these Conditions are held to be subject to the laws of the Commonwealth of Australia or of any particular State or Territory in Australia 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. Nothing in these Conditions is intended to have the affect of contracting out of any applicable provisions of the Competition and Consumer Act 2010 and the Australian Consumer Law, or comparable legislation in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
(b) If any other legislation is compulsorily applicable to any business undertaken, these Conditions shall, as regards such business, be read as subject to such legislation and nothing in these Conditions shall be construed as a surrender by the Company of any of its rights or immunities or as an increase of any of its responsibilities or liabilities under such legislation and if any part of these Conditions is held to be repugnant to such legislation to any extent such part shall as regards such business be over-ridden to that extent and no further.
Headings of clauses or groups of clauses in these Conditions are for indicative purposes only.
- Governing Law and Jurisdiction
18.1 These Conditions and any claim or dispute arising out of or in connection with the services of the Company shall be subject to the law of the State or Territory of Australia in which the Company has its principal place of business and any such claim or dispute shall be determined by the Courts of that State or Territory and no other Court.
PART II: Company as Agent
- Special Liability and Indemnity Conditions
19.1 To the extent that the Company acts as an agent, the Company does not make or purport to make any contract with the Customer for the carriage, storage or handling of the Goods nor for any other physical service in relation to them and acts solely on behalf of the Customer in securing such services by establishing contracts with third parties so that direct contractual relationships are established between the Customer and such third parties.
19.2 The Company shall not be liable for the acts and omissions of third parties referred to in Clause 19.1.
19.3 The Company, when acting as an agent, has the authority of the Customer to enter into contracts on the Customer’s behalf and to do acts which bind the Customer in all respects notwithstanding any departure from the Customer’s instructions.
19.4 Except to the extent caused by the Company’s negligence, the Customer shall defend, indemnify and hold harmless the Company in respect of all liability, loss, damage, costs or expenses arising out of any contracts made in the procurement of the Customer’s requirements in accordance with Clause 19.1.
- Choice of Rates
20.1 Where there is a choice of rates according to the extent or degree of liability assumed by persons carrying, storing, or handling the Goods, no declaration of value (where available) will be made by the Company unless previously agreed in writing between the Customer and the Company.
PART III: Company as Principal
21 Special Liability Conditions
21.1 Where the Company contracts as principal for the performance of the Customer’s instructions, the Company undertakes to perform, or in its own name to procure, the performance of the Customer’s instructions and, subject to the provisions of these Conditions, shall be liable for the loss of or damage to the Goods occurring from the time that the Goods are taken into its charge until the time of delivery.
(a) the Company contracts as a principal and sub-contracts the performance of the Company’s Services; and
(b) it can be proved that the loss of or damage to or in respect of the Goods arose or was caused whilst the Goods were in the care or custody of the sub-contractor;
the Company shall have the full benefit of all rights, limitations and exclusions of liability available to the sub-contractor in the contract between the Company and the sub-contractor and in any law, statute or regulation and the liability of the Company shall not exceed the amount recovered, if any, by the Company from the sub-contractor.
21.3 Notwithstanding other provisions in these Conditions, if it can be proved where the loss of or damage to the Goods occurred, the Company’s liability shall be determined by the provisions contained in any international convention or national law, the provisions of which:
(a) cannot be departed from by private contract, to the detriment of the claimant; and
(b) would have applied if the claimant had made a separate and direct contract with the actual provider of the particular service in respect of that service or stage of carriage where the loss or damage occurred and received as evidence thereof any particular document which must be issued if such international convention or national law shall apply.
21.4 Notwithstanding other provisions in these Conditions, if it can be proved that the loss of or damage to the Goods occurred at sea or on inland waterways and the provisions of Clause 21.2 do not apply, the Company’s liability shall be determined by the Hague-Visby Rules. Reference in the Hague-Visby Rules to carriage by sea shall be deemed to include reference to carriage by inland waterways and the Hague-Visby Rules shall be construed accordingly.
21.5 Notwithstanding the provisions of Clauses 21.2, 21.3 and 21.4 but subject to clause 21.5 if the loss of or damage to the Goods occurred at sea or on inland waterways, and the Owner, Charterer or operator of the carrying vessel is entitled to limit its liability at law and establishes a limited fund, the liability of the Company shall be limited to the proportion of such limitation fund as is allocated to the Goods.
21.6 In the event of any inconsistency between these Conditions and the conditions of any bill of lading or air waybill issued by or on behalf of the Company as principal, the conditions of any such bill of lading or seaway bill or air waybill shall prevail to the extent of such inconsistency but no further.
22 Both-to-Blame Collision Clause
22.1. The Both-to-Blame Collision Clause as recommended by BIMCO as at the time of the provision of Services is incorporated into and forms part of these Conditions.
- USA and/or Canada and Additional Responsibility Clause
23.1 With respect to transportation within the USA or Canada, the responsibility of the Company shall be to procure transportation by carriers (one or more) and such transportation shall be subject to such carrier’s contracts and tariffs and any law compulsorily applicable. The Company guarantees the fulfilment of such carrier’s obligations under their contracts and tariffs.
23.2 If and to the extent that the provisions of the Harter Act of the USA 1893 would otherwise be compulsorily applicable to regulate the Company’s responsibility for the Goods during any period prior to loading on or after discharge from the vessel on which the Goods are to be or have been carried, the Company’s responsibility shall instead be determined by these Conditions. If such provisions are found to be invalid such responsibility shall be determined by the provisions in the Carriage of Goods by Sea Act of the USA Approved 1936.
23.3 If and to the extent that the provisions of the Regulations made pursuant to the Carriage of Goods by Sea Act 1991 (as amended) of the Commonwealth of Australia (or any amendments to such Regulations) would otherwise be compulsorily applicable to regulate the Company’s responsibility for the Goods during any period prior to loading on or after discharge from the vessel on which the Goods are to be or have been carried, the Company’s responsibility shall be determined by these Conditions. If such provisions are found to be invalid such responsibility shall be determined by the provisions of the said Carriage of Goods by Sea Act.
23.4 If the Hamburg Rules should be held to be compulsorily applicable to any carriage of goods by sea undertaken by the Company as principal, these Conditions shall be read subject to the provisions of the Hamburg Rules and any term of these Conditions that is repugnant to the Hamburg Rules shall be void to the extent of such repugnancy but no further.
- Air Carriage
24.1 Where the Company acts as a principal in respect of a carriage of Goods by air, the following notice is hereby given:
If the carriage involves an ultimate destination or stop in a country other than the country of departure, the Montreal Convention may be applicable and the Convention governs and in most cases limits the liability of carriers in respect of loss of or damage to Goods. Agreed stopping places are those places (other than the places of departure and destination) shown under requested routing and/or those places shown in carrier’s timetables as scheduled stopping places for the route. The address of the first carrier is the airport of departure.
24.2 Notwithstanding any other provision of these Conditions, where the Company acts as a principal in respect of a carriage of Goods by air, the Company’s liability in respect of loss of or damage to such Goods shall be determined in accordance with the Montreal Convention.
PART IV: SUBCONTRACTORS
It is a requirement of subcontractors that copies of certificate of currencies for current Public Liability, Workers Compensation, Motor Vehicle insurance that include third party property damage and comprehensive non-owned trailer damage are to be supplied. The minimum required values for each insurance class is listed and is the present minimum.
It is a requirement that all contractors shall at all times, for the duration of this agreement, at own cost and expense, maintain in full force and effect the following insurances, with insurer(s).
Public and Products Liability:
Public Liability Insurance covering any and all liabilities to third parties arising out of or in connection with this agreement in an amount of not less than AUD 20,000,000 for each occurrence and unlimited in the aggregate in respect of all incidents occurring during each period of insurance except Products Liability which is in aggregate during the period of insurance.
The policy needs to be extended to name Pendleton & Co Pty Ltd as Principal on the policy with a waiver of subrogation in favour of Pendleton & Co Pty Ltd.
A Workers Compensation policy including common law to cover employees and workers of the contractor, in accordance with the relevant laws of the state or commonwealth.
The policy to provide common law cover to be not less than AUD 50,000,000.
All working Directors are to be included and nominated on the policy.
The policy is required to have a Principals Indemnity extension for Statutory Benefits and Common Law, with a waiver of subrogation in favour of Pendleton & Co Pty Ltd.
Industrial Disease (This is only a requirement if attending a mine site/quarry)
An industrial disease policy in accordance with the provisions of the Workers Compensation and Rehabilitation Act.
Comprehensive and Motor Vehicle Third Party Liability Insurance:
Comprehensive insurance covering all mechanically propelled vehicles required to be licensed in the state where the work is performed, including third party liability cover for an amount not less than AUD 20,000,000 in respect of each claim and unlimited in the aggregate.
The policy needs to be extended to name Pendleton & Co Pty Ltd. as Principal on the policy with a waiver of subrogation in favour of Pendleton & Co Pty Ltd.
Goods in Transit Insurance
All Risks insurance covering the goods carried with a sum insured of no less than Pendleton & Co Pty Ltd any one conveyance/load.
The policy needs to be extended to name Pendleton & Co Pty Ltd as Principal on the policy.