1 . In these conditions :-
- "Company" shall mean Megatop Cargo Pty Ltd.
- "Customer" shall mean the party entering into this contract with the company and shall include the shipper or bailor of the goods and their respective servants or agents. "The goods" shall mean the chattels, articles and things tendered for carriage by the Customer and shall include the container or containers or other packaging containing the same and any pallet or pallets delivered with the same to the Company.
- "Dangerous goods" shall mean such of the goods as shall be in fact or at law noxious, dangerous, hazardous, explosive, inflammable or capable by their nature of causing damage or injury to other goods or to any persons or animals or to any thing in which those goods are carried or stored.
2. The Company is not a common carrier and will accept no liability as such.
- The goods are carried and all storage, lifting, packing and other services are performed by the Company subject only to these terms and conditions and the Company reserves the right to accept or refuse the carriage of any goods or the performance of storage, lifting or packing of the goods or of any other service at its discretion.
3. The Customer expressly warrants that it is either the owner or the authorised agent of the owner of the goods and enters into this contract on its own behalf and also as agent for the owner of the goods.
4. The Customer shall comply with the requirements of any applicable law relating to the nature, condition and packaging of the goods and the expenses and charges of the Company in complying with the provisions of any such law or with any order or requirement thereunder or with the requirement of any harbour, dock, railway, shipping, customs, warehouse or other authority or corporation shall be paid by the Customer. Except where the Company is instructed in writing to pack the goods, the Customer warrants that all goods have been properly and sufficiently packed and prepared for transit.
5. If any of the goods are subject to the control of Customs, all customs duty, excise duty and costs which the Company becomes liable to pay and shall pay in respect of such goods pursuant to any law relating to Customs or Excise shall be paid by the Customer.
6. The Customer shall not tender any dangerous goods for carriage, storage, lifting or packing without presenting to the Company a full description thereof and giving such notice of intention to ship or bail dangerous goods and doing all such acts as may be required by any relevant authority. In default of so doing, the Customer shall be liable for all loss or damage caused by or through such dangerous goods.
7. The goods are at the risk of the Customer and not of the Company and the Company shall not be liable in tort or contract or otherwise for any loss of or damage to or deterioration of the goods or misdelivery or failure to deliver or delay in delivery of the goods including chilled, frozen, refrigerated, or perishable goods in transit or in storage or at any other time for any reason whatsoever including without limiting the foregoing the negligence or wilful act default of the Company or others and this clause shall apply to all such loss of or damage to or deterioration of the goods or misdelivery or failure to deliver or delay in delivery of the goods as aforesaid whether or not the same occurs in the course of performance by the Company of the contract or in events which are in the contemplation of the Company and/or the Customer or in events which are foreseeable by them either of them or in events which would constitute a fundamental breach of the contract or a breach of a fundamental term thereof.
8. In the event of the contract including any handling, lifting, packing, installation, removal, assembly or erection of any kind whatsoever it is undertaken on the basis that the Company shall not be under any liability or responsibility for any loss, damage or injury of any kind whatsoever howsoever arising caused or incurred including without limiting the foregoing the negligence or wilful act or default of the Company or others.
This disclaimer extends to include loss or damage or injury to any person, property or thing and any loss consequently or otherwise arising from any loss damage or injury as aforesaid.
9. The Customer hereby authorises the Company (if it should think fit to do
so) to arrange with a subcontractor or subcontractors for the carriage, storage, lifting or packing of any goods or the performances of any services being the subject of this contract. Any such arrangement shall be deemed to be ratified by the Customer upon delivery of the said goods to such subcontractor or subcontractors who shall thereupon be entitled to the full benefit to these terms and conditions to the same extent as the Company.
Insofar as it may be necessary to ensure that such subcontractor or subcontractors shall be so entitled the Company shall be deemed to enter into this contract for its own benefit and also as agent and trustee for the subcontractor or subcontractors.
10. If the Customer expressly or impliedly instructs the Company to use or it is expressly or impliedly agreed that the Company will use a particular method of handling, storing, lifting or packing the goods or a particular method of carriage whether by road, rail, sea or air the Company will give priority to that method but if it cannot conveniently be adopted by the Company, the Company hereby authorises the Company to handle, store, lift or pack or to carry or have the goods carried by another method or methods at the Company's discretion.
11. The Customer hereby authorises any deviation from the usual route or manner of cartage, storage, lifting or packing of the goods which in the absolute discretion of the Company be deemed reasonable or necessary in the circumstances.
12. Insurance will not be arranged by the Company except with the express instructions in writing of the Customer and then only at the Customer's expense and on lodgement of a declaration as to value prior to receipt of the goods by the Company. If insurance is arranged by the Company the Company shall not be under any responsibility or liability in relation thereto for any reason whatsoever.
13. Freight, storage, lifting and packing charges shall be considered earned whether the goods are delivered by the Company or not and whether damaged or otherwise. The Company may charge freight, storage, lifting and packing charges by weight, measurement or value, and may at any time re-weigh or re-value or re-measure or require the goods to be re-weighed, re-valued or re-measured and charge proportional additional freight, storage, lifting and packing charges accordingly.
14. (A) Unless stated to the contrary, all amounts required to be paid to the Company under this contract are exclusive of GST.
(B) If the Company makes a taxable supply in connection with this contract for a consideration which represents the GST exclusive price of the supply, then the Customer must also pay at the same time and in the same manner, the amount of any GST payable in respect of the taxable supply.
(C) For the purposes of this clause, words and expressions set out in italics bear the same meaning as those in the A New Tax System (Goods and Services Tax) Act 1999 (as amended).
15 . If any person fails to pay charges due to the Company in respect of the carriage, storage, lifting or packing or any goods or the performance of any service on reasonable demand being made in accordance with the contract, the Company may detain and sell all or any of the goods of that person which are in its possession and out of monies arising from the sale retain charges so payable and all charges and expenses of the detention and sale, and shall render the surplus if any of the monies arising from the sale of and such of the goods as remain unsold to the person entitled thereto. Any such sale shall not prejudice or affect charges due or payable in respect of such service or the said detention and sale.
16. Every special instruction to the effect that charges shall be paid by a person other than the Customer shall be deemed to include a stipulation that if that person does not pay the said charges within seven (7) days of delivery or tendered delivery of goods, then the Customer shall pay the said charges to the Company.
17. Perishable goods, which are not taken up immediately upon arrival or which are insufficiently addressed or marked or otherwise not identifiable, may be sold or otherwise disposed of by the Company without notice to any party and payment or tender of the net proceeds of any sale after deduction of charges shall be equivalent to delivery.
18. Non-perishable goods which cannot be delivered either because they are insufficiently or incorrectly addressed or because they are not collected or accepted by the consignee may be sold or returned at the Company's option at any time after the expiration of twenty-one (21) days from a notice in writing sent to the address of the consignee which the Customer gave to the Company on delivery of the goods. All charges and expenses arising in connection with the sales or return of the goods shall be paid by the Customer.
19. The Company shall not under any circumstances be liable for loss or damage resulting from or attributable to any quotation, statement representation or information whether oral or in writing howsoever, wheresoever and to whomsoever made or given by or on behalf of the Company or by any servant or agent of the Company as to classification of or the liability for or the amount, scale or rate of customs duty, excise duty or other impost, tax or freight rates applicable to any goods or property whatsoever.
20. Notwithstanding anything herein contained the Company shall continue to be subject to any implied warranty provided by the Trade Practices Act 1 974 (as amended) if and to the extent that the said Act is applicable to this contract and prevents the exclusion, restriction or modification of the warranty.
21. (A) The Company shall be discharged of all liability unless: (i) notice of any claim is received in writing by the Company or its agent within 14 days after the date specified in (b) below, or within a reasonable time after such date if the Customer proves that it was impossible to so notify, and (ii) suit is brought in the proper forum and written notice thereof received by the Company within 9 months after the date specified in (B) below .
(B) (i) in the case of loss or damage to goods, the date of delivery of the goods, (ii) in the case of delay or non-delivery of the goods, the date that the goods should have been delivered. (iii) in any other case, the event giving rise to the claim.
22. (A) The Customer and Owner shall defend, indemnify and hold harmless the Company against all liability, loss, damage, costs and expenses arising (i) from the nature of the goods unless caused by the Company's negligence, (ii) out of the Company acting in accordance with the Customer's or Owner's instructions, or (iii) arising from a breach of warranty or obligation by the Customer or arising from the negligence of the Customer or Owner.
(B) 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 of whatsoever nature levied by any Authority and for all payments, fines, costs, expenses, loss and damage whatsoever incurred or sustained by the Company in connection therewith.
(C) Advice and information, in whatsoever from it may be given, are 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.
(D) (i) The Customer undertakes that no claim 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, to indemnify the Company against all consequences thereof.
(ii) Without prejudice to the foregoing, every such servant, sub-contractor or agent shall have the benefit of all provisions herein, as if such provisions were expressly for their benefit. In entering this contract the Company, to the extent of those provisions, does so not only on his behalf, but as agent and trustee for such servants, sub-contractors and agents.
(iii) 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 the terms of these Conditions and without prejudice to the generality of this clause this indemnity shall cover all claims, costs and demands arising from or in connection with the negligence of the Company, its servants, sub-contractors and agents.
(iv) In this clause, "sub-contractors" includes direct and indirect sub-contractors and their respective servants and agents.
(E) The Customer shall be liable for the loss, damage, contamination, soiling, detention or demurrage before, during and after the carriage of property (including, but not limited to, Containers) of the Company or any person or vessel referred to in (D) above caused by the Customer or Owner or any person acting on behalf of either of them or for which the Customer is otherwise responsible.
23. The Company shall not be bound by any agreement purporting to vary these terms and conditions unless such agreement shall be in writing and signed on behalf of the Company by its duly authorised officer.
24. These conditions shall be governed and constructed by the law of the State of NSW wheresoever the contract was made any proceedings in respect of any claim, matter or thing against the Company shall be instituted in the State of NSW only.