|
Trading
Terms and Condition
The following are
the Terms and Condition for Sea Freight cargo, you are deemed to
fully understand and agree all the terms and condition if you
use our services.
You will receive
the same copy with our house bill (hard copy or by email) every
time using our service. You may enlarge your screen or right
click the
E Trade Alliance
Logistics (ETA Logistics) Trading Terms & Condition.pdf to download to your computer if
the fronts are too small while viewing on your screen.
Please feel free
to obtain an updated copy from us.
TRADING TERMS AND
CONDITIONS
THESE CONTRACTUAL CONDITIONS
APPLY TO ALL SERVICES PROVIDED BY
E Trade Alliance Logistics
(ETA Logistics)
All and any business
undertaken by ETA Logistics (here
in after called "E Trade Alliance Logistics (ETA
Logistics)") is transacted subject to the
conditions here in after set out, each of which shall be
deemed to be incorporated in and to be a condition of
any agreement between ETA Logistics and its customers.
These Trading Conditions
including provisions entirely change, reduce or exclude
rights that you (“the Customer") might otherwise have.
DEFINITIONS AND
INTERPRETATION
1. DEFINITIONS:
In these Trading Conditions,
the following defined terms will have the following
defined meanings.
(1) ABN means the Australian
Business Number of the Customer pursuant to the GST Law
(2) ACS means the Australian
Customs Service
(3) Agreement means these
Trading Conditions
(4) AQIS means the
Australian Quarantine Inspection Service
(5) Assets means all assets,
goods, documents and records of the Customer held by
ETA Logistics as part of the contractual terms and trading
conditions for the appointment of E Trade Alliance
Logistics (ETA Logistics), and
include, without limitation, the Goods
(6) ATO means the Australian
Taxation Office
(7) Authorisation means the
appointment and authorisation of ETA Logistics to act on
behalf of the Customer on the terms and conditions of
this Agreement
(8) Authorised Signatory
means the party who signs the Authorisation on behalf of
the Customer
(9) Business Day means any
day that is not a Saturday or Sunday on which banks are
open for general banking business in Melbourne
(10) Carriage means vehicles
and conveyances of all kind including acts in
furtherance of an act of carriage by another or a
specific means, whether by air, sea or land transport
(11) Carrier means any party
involved in the carriage of Goods whether by airfreight,
seafreight or land transport
(12) Company means as holder
of Customs Brokers Licence number [ ] and the nominees,
agents, sub-agents and employees of ETA Logistics
(13) Customer means the
customer named in the Authorisation and will include all
employees, officers, agents and contractors of the
Customer
(14) Customs Act means the
Customs Act 1901 (as amended), and any succeeding
Legislation and any regulations made pursuant to the
Customs Act
(15) Customs Related Law has
the same meaning as in Section 4 of the Customs Act
(16) Dangerous Goods means
cargo which is noxious, hazardous, inflammable,
explosive or offensive (including radioactive materials)
or may become noxious, hazardous, inflammable, explosive
or offensive or radioactive and may become liable to
cause damage to any person or property whatsoever.
(17) Debts means all amounts
owing by the Customer to ETA Logistics on any account
whatsoever
(18) Fees means the fees
charged by ETA Logistics for provision of the Services
(19) Goods are any goods or items which are the subject
of the Services provided by ETA Logistics to the Customer
under this or any other Agreement
(20) Government Authorities
means, without limitation, all Government Departments
with responsibility for the import and export of goods,
the collection of revenue on the import and export of
goods and the transport of those goods to include,
without limitation, ACS, AQIS, the ATO and the RSE
(21) GST has the same
meaning as under the GST Law and means the Goods and
Services Tax imposed under the GST Law
(22) GST Law means the A New
Tax System (Goods and Services Tax) Act 1999
(23) GST Rate means the rate
of GST under the GST Law
(24) Laws means any laws or
regulations of any of the Commonwealth of Australia, or
any of the States, Territories or Municipalities of
Australia
(25) Occupational Health and
Safety means the Occupational Health and Safety Act 2000
(NSW) (as amended), all associated regulations or
guidelines and any other relevant State or national
occupational health and safety legislation, regulations
or guidelines
(26) Privacy Laws means the
Privacy Act 1998 (Cth), all associated regulations or
guidelines, and any other associated or relevant State
or national privacy legislation, regulations or
guidelines
(27) Reporting Obligations
means the obligations to report the arrival, carriage
and movement of goods pursuant to the Customs Act or any
Customs Related Law or as required by any Government
Authorities.
(28) Related Body Corporate
has the same meaning as under the Corporations Act 2001
(29) RSA means those State
and Commonwealth Government Authorities in Australia
responsible for road safety and the laws governing the
carriage of goods by road
(30) Services are the
rights, benefits, privileges or facilities that are or
are to be provided, granted or conferred under a
contract for or in relation to the performance of work
by ETA Logistics for the Customer, to include, without
limitation:
(a) to make any Reports,
Entries and Declarations required by any Government
Authorities;
(b) to quote the ABN as may
be required under the GST Law;
(c) to provide all necessary
information and complete all necessary documentation and
reports for the purposes of any Government Authorities;
and to enter into contracts with Sub-contractors on
behalf of the Customer to enable the carriage, import,
export or transportation of the Goods.
(31) Standards means:
(a) Australian Standard AS/NZS
ISO 9001:2000 in relation to the operation of E Trade
Alliance Logistics (ETA Logistics) business; and
(b) Australian Standard AS/NZS
4801:2000 in relation to occupational health and safety
in the provision of the Services
(32) Sub-contractor means
any third party appointed by ETA Logistics to assist in
the provision of the Services
(33) Supply means the same
as in the GST Law
(34) Taxable Supply means
any Supply under these Conditions in respect of which
ETA Logistics is or may become liable to pay GST
(35) Vessel means any
vessel, vehicle or aircraft used to effect carriage of
the Goods, whether by sea, land or air.
2. INTERPRETATION
(1) These Trading Conditions
and any collateral agreements made by ETA Logistics with
the Customer wherever made shall be governed and
construed according to the laws of the State of
Australia in which this agreement is entered into and
shall be subject to the exclusive jurisdiction of the
Courts of the said State.
(2) If these Trading
Conditions are held to be subject to the laws of the
Commonwealth of Australia or of any particular State or
any other legislature then these conditions shall
continue to apply and shall be void only to the extent
that they are inconsistent with or repugnant to those
laws and no further.
(3) All the rights,
immunities and limitations of liability contained herein
shall continue to have their full force and effect in
all the circumstances notwithstanding any breach of any
term or condition hereof or any collateral agreement by
ETA Logistics and notwithstanding that the Services have
been provided, the Goods delivered as directed by the
Customer or the Authorisation having expire or been
terminated.
(4) Unless written
notification to the contrary is given by the Customer to
ETA Logistics at or prior to entering into these Trading
Conditions the Customer expressly warrants and
represents that all or any Services to be supplied by
ETA Logistics and acquired by the Customer pursuant to
this agreement are so supplied and acquired for the
purposes of a business, trade, profession or occupation
carried on or engaged in by the Customer.
(5) In the interpretation of
these Trading Conditions the singular includes the
plural and vice versa; words importing one gender mean
and include each other gender; and words importing
corporations mean and include natural persons and vice
versa.
(6) No agent or employee of
ETA Logistics has the authority to waive or vary these
Trading Conditions unless ETA Logistics approves such
waiver or variation in writing.
(7) Where any provision (or
part thereof) of these Trading Conditions is held by a
Court to be unenforceable, it shall in no way affect or
prejudice the enforceability of any other term or
condition herein.
(8) References to clauses
are references to clauses in the Trading Conditions.
(9) Headings have no effect
on interpretation of the Trading Conditions.
(10) Terms not defined in
these Trading Conditions will have the same meaning as
defined in the Customs Act.
3. APPLICATION
Clauses 1 and 2 will apply
to the Trading Conditions
TRADING CONDITIONS
NATURE OF SERVICES
(1) ETA Logistics carries on
business as a and forwarding
agent. All Services provided by ETA Logistics are governed
solely by these Trading Conditions which, shall prevail
over the Customer’s terms and conditions and any terms
and conditions contained in any transport document
including any bill of lading, waybill or consignment
note except to the extent provided for in these Trading
Conditions. ETA Logistics is not a common carrier and will
accept no liability as such. ETA Logistics may refuse at
its sole and absolute discretion to accept any Goods for
carriage without assigning any reason.
(2) No modification
amendments or other variation of the Trading Conditions
shall be valid and binding on ETA Logistics unless made in
writing and duly executed by and on behalf of E Trade
Alliance Logistics (ETA Logistics).
(3) ETA Logistics acknowledges
that where, terms of Carriage are limited pursuant to
convention, statute, law, bill of lading or airway bill,
and the transport of the goods extends or requires
transport outside and beyond the terms provided for in
that convention, statute, law, bill of lading or airway
bill then the Customer may be required to enter into a
further contractual agreement with the forwarder or
carrier regarding that portion of transport in order to
limit liability on behalf of the forwarder or carrier,
or where the transport was unforseen, the limitation of
liability provisions in place for the foreseen transport
will extend to the unforeseen transport, even where that
liability provision does not envision transport of that
kind.
ACCEPTANCE OF TRADING
CONDITIONS
(4) All and any business
undertaken by ETA Logistics is
transacted subject to our Trading Conditions, copies
which are available on request.
COMMUNICATIONS WITH E
Trade Alliance Logistics (ETA Logistics)
(5) Wherever it is
necessary, for the purpose of these Trading Conditions
or any other purpose whatever, for instructions to be
given to E Trade Alliance Logistics (ETA Logistics), such instructions will be valid
only if given in writing, acknowledged by ETA Logistics in
writing and given in sufficient time in all the
circumstances for ETA Logistics reasonably to be able to
adopt the instructions. Standing or general
instructions, or instructions given late, even if
received by ETA Logistics without comment, shall not be
binding upon E Trade Alliance Logistics (ETA Logistics). If
ETA Logistics adopts standing
or general instructions, or instructions given late, for
one of more transaction for the Customer or any other
party, that does not in any way affect the validity of
those instructions in relation to any future
transaction. No attempt by ETA Logistics to adopt late
instructions will constitute an acceptance by ETA
Logistics or affect the validity of those instructions.
(6) Notwithstanding any
prior dealings between ETA Logistics and the Customer or
any rule of law or equity or provision of any statute or
regulation to the contrary, or any contracts, documents
and other matter (including cash, cheques, bank drafts
and other remittances) sent to ETA Logistics through the
post shall be deemed not to have been received by ETA
Logistics unless and until they are actually delivered
to ETA Logistics at its office address or placed in E
Trade Alliance Logistics (ETA Logistics) post office box, if so addressed.
ABILITY TO APPOINT
AGENTS, SUB-CONTRACTORS AND THIRD PARTIES
(7) ETA Logistics reserves
complete freedom to decide the manner or procedure to be
adopted for any or all of the various acts that will be
necessary for the completion of the Services. That
discretion will be varied only by instructions delivered
by the Customer to ETA Logistics in writing and
acknowledged by ETA Logistics in writing in sufficient
time before the performance of any service to reasonably
allow ETA Logistics to adopt the manner of performing the
service required by the special instructions. ETA
Logistics SHALL HAVE NO LIABILITY OR RESPONSIBILITY BY
VIRTUE OF THE FACT THAT THERE MAY BE A CHANGE IN THE
RATES OF DUTY, WHARFAGE, FREIGHT, RAILAGE OR CARTAGE, OR
ANY OTHER TARIFF BEFORE OR AFTER THE PERFORMANCE BY ETA
Logistics OR ANY ACT INVOLVING A LESS FAVOURABLE RATE OR
TARIFF, OR BY VIRTUE OF THE FACT THAT A SAVING MAY HAVE
BEEN EFFECTED IN SOME OTHER WAY HAD ANY ACT BEEN
PERFORMED AT A DIFFERENT TIME AND WHETHER ITS
PERFORMANCE OF ANY OF THE ACTS AFORESAID IS DELAYED OR
PRECIPITATED THROUGH THE NEGLIGENCE OF ETA Logistics OR
ITS SERVANTS OR AGENTS OR HOWEVER CAUSED.
(8) Subject to and in
accordance with these Trading Conditions, ETA Logistics
agrees and the Customer hereby employs and authorises
ETA Logistics as agent for the Customer to contract either
in its own name as principal or as agent for the
Customer with any Sub-contractor for the carriage,
movement, transport or storage of the Goods or for the
performance of all or any part of the Services pursuant
to or ancillary to these Trading Conditions. Any such
contract may be made upon the terms of contract used by
the Sub-contractor with whom ETA Logistics may contract
for the Services and may be made upon the terms and
subject to the conditions of any special contract which
the Sub-contractor may in any particular case require,
including in every case any term that the Sub-contractor
may employ any person, firm or company for performance
of the Services so contracted for.
PAYMENT, RECOVERY OF FEES
AND GST
(9) ETA Logistics is entitled
to retain and be paid all brokerages, commissions,
allowances and other remunerations customarily retained
by or paid to shipping and forwarding agents and (where
ETA Logistics accepts specific instructions under clause
19 to effect insurance) insurance broker whether
declared or otherwise and no such brokerage, commission
or allowance or other remuneration shall be payable or
allowable to the Customer or its principal (if any).
ETA Logistics 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.
(10) Quotations as to Fees
and other charges are given on the basis of immediate
acceptance and subject to the right of withdrawal or
revision by E Trade Alliance Logistics (ETA Logistics). Quotations are valid only for
the specified weight and volume ranges quoted and for
the designated services and standard of services quoted.
If any changes occur in the rates of freight, insurance
premiums, warehousing, statutory fees or any other
charges applicable to the Goods, quotation and charges
are subject to revision accordingly with or without
notice to the Customer.
(11) ETA Logistics 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.
(12) This clause 12 applies
if ETA Logistics is or may become liable to pay GST in
relation to any Supply under these Trading Conditions.
(1) Unless otherwise stated,
all charges quoted are exclusive of the GST imposed
under the GST Law.
(2) The Customer shall be
responsible for payment of any GST liability in respect
of the Services as provided by ETA Logistics or by third
parties or Sub-contractors which shall be payable at the
same time as the GST-exclusive consideration.
(3) The Customer must also
pay GST on the Taxable Supply to E Trade Alliance
Logistics (ETA Logistics), calculated
by multiplying the GST exclusive consideration by the
GST Rate.
(4) GST shall be payable by
the Customer without any deduction or set-off for any
other amount at the same time as the GST exclusive
consideration is payable.
(5) ETA Logistics agrees to
provide the Customer with a Tax Invoice to enable the
Customer to claim Input Tax Credit.
(6) If the Customer defaults
in the payment on the due date of any amount payable
under this subclause 12(2) then without prejudice to any
other remedies of ETA Logistics and upon demand by E
Trade Alliance Logistics (ETA Logistics), the Customer shall pay to
ETA Logistics an amount
equal to the amount of any damages or interest or
additional GST that may become payable by ETA Logistics
due to the default of the Customer.
(13) All amounts due to ETA
Logistics in Australia are payable in Australian dollars.
ETA Logistics is entitled to charge a currency conversion
premium when converting receivables into Australian
currency.
(14)If any amounts payable
due under any agreement between ETA Logistics and the
Customer (including, without limitation, amounts payable
pursuant to subclause 18 (1) or fees payable for
Services provided by E Trade Alliance Logistics (ETA
Logistics)) are not made within
seven days of the due date, the Customer will be in
default and without limiting any other rights of E Trade
Alliance Logistics (ETA Logistics), the Customer shall pay to
E Trade Alliance Logistics (ETA Logistics), by way
of liquidated damages, interest at the rate of 24 per
cent per annum on the amount outstanding calculated from
the due date until payment is made in full. ETA
Logistics
may take any legal proceedings to recover amounts owing
pursuant to these Trading Conditions.
(15) ETA Logistics reserves
the right to offset any amounts receivable from the
Customer against any amounts payable to that Customer or
any company affiliated with the Customer or any Related
Body Corporate of the Customer. This right exists
irrespective of the date the liability has been created
or debt incurred with E Trade Alliance Logistics (ETA
Logistics).
(16)(1) E Trade Alliance
Logistics (ETA Logistics), its
servants or agents shall have a special and general lien
on the Assets and a right to sell the Assets whether by
public or private sale or auction without notice, for
freight, demurrage, detention charges, duty, fines,
penalties, salvage, average of any kind whatsoever and
without limitation and for any and all debts, charges,
expenses or other sums due and owing by the Customer or
the Customer's principals, servants or agents. In
addition, the lien shall cover the costs and expenses of
exercising the lien of such a sale including reasonable
legal fees. The lien and rights granted by this
subclause 16(1) shall survive delivery of the Assets and
ETA Logistics shall be entitled to retain the proceeds of
sale of the Assets in respect of any outstanding amounts
referred to in this clause.
(2) ETA Logistics sells or
otherwise disposes of such Assets pursuant to subclause
16(1) as principal and not as agent and is not the
trustee of the power of sale.
(3) The lien created by
subclause 16(1) does not limit or exclude any other
liens which arise by operation of law or pursuant to any
Laws.
WARRANTIES BY THE
CUSTOMER
(17)(1) The Customer (on
behalf of itself, the consignor and the consignee)
warrants to ETA Logistics that:
(a) it will provide all
documents, information and assistance required by ETA
Logistics to comply with the requirements of the
Government Authorities in an accurate and timely fashion
as required by those Government Authorities;
(b) it will retain all
documents or records in the manner required by the
Government Authorities;
(c) it will observe all
provisions of any Government Authorities;
(d) it will maintain as
confidential the terms of the Authorisation and these
Trading Conditions;
(e) it has complied with all
laws and regulations of any Government Authorities
relating to the nature, condition, packaging, handling,
storage and carriage of the Goods including all Laws
prescribed by the RSA;
(f) the Goods are packed to
withstand ordinary risks of handling storage and
carriage, having regard to their nature;
(g) the Goods are not
Dangerous;
(h) the Goods and their
carriage do not contravene any Laws;
(i) ETA Logistics is the
legal owner of the Goods or legally entitled to
authorise their carriage; and (j) it will notify ETA
Logistics of any issue or event that may affect E Trade
Alliance Logistics (ETA Logistics) ability
to adhere to the Standards in the provision of the
Services;
(k) it will comply with all
Privacy Laws in relation to this Agreement, the Goods
and the Services at all times and will notify ETA
Logistics of any issues or requirements under such laws in
relation to this Agreement or Services of which the
Customer should be aware; and
(l) it will comply with all
Occupational Health and Safety Laws in relation to this
Agreement, the Goods and the Services at all times, and
will notify ETA Logistics of any issues or requirements
under such laws in relation to this Agreement or the
Services of which the Customer should be aware, or which
may affect E Trade Alliance Logistics (ETA Logistics) ability to comply either with
the Occupational Health and Safety Laws or the
Standards.
(2) The Customer
acknowledges that a breach or failure to observe all or
any of the warranties in subclause 17(1) could lead to
penalties or damages to the Customer and also to ETA
Logistics and the Customer agrees to provide the indemnity
to ETA Logistics on account of such penalties or damages
pursuant to clause 18.
INDEMNITY BY THE CUSTOMER
(18)(1) Without limiting the
effect of these Trading Conditions, the Customer agrees
to indemnify and keep indemnified ETA Logistics for:
(a) amounts of Customs Duty,
GST and other payments made to Government Authorities by
ETA Logistics on behalf of the Customer;
(b) any penalties payable by
ETA Logistics (pursuant to a Court order or pursuant to an
Infringement Notice) due to the Customer:
(i) providing information
that is incorrect or misleading;
(ii) omitting to provide
material information required to the Government
Authorities;
(iii) providing information
in a manner which does not enable ETA Logistics to comply
with the requirements of the Government Authorities for
reporting in prescribed periods; and
(iv) failing to provide
information or documentation requested by E Trade
Alliance Logistics (ETA Logistics);
(c) penalties associated
with the failure by the Customer to maintain or provide
its documents or records in the manner and at the time
contemplated by the Government Authorities;
(d) penalties associated
with providing misleading or deceptive information
regarding the status of Goods, whether pursuant to the
Trade Practices Act 1974 (Cth) or other legislation;
(e) penalties imposed by any
RSA for any breach of the laws governing to the carriage
of goods by road;
(f) damages payable by ETA
Logistics from the failure of the Customer to return any
container or transport equipment involved in Carriage in
the time required by the contract between ETA Logistics
and the supplier or owner of that container or other
transport equipment;
(g) demurrage or other
charge for detention or failure to return items provided
by ETA Logistics pursuant to contracts with other parties;
(h) liabilities or costs
incurred by ETA Logistics on behalf of the Customer
associated with the transport of Goods including,
without limitation, amounts paid to carriers of goods
for the carriage of Goods or cleaning of containers
(whether Sub-Contractors or otherwise and amounts
incurred by ETA Logistics in exercising its rights
pursuant to these Trading Conditions);
(i) damages payable by ETA
Logistics arising from or contributed to by errors or
misrepresentations by the Customer;
(j) losses or damage
incurred by ETA Logistics due to a breach by Customs of
any of the warranties in this subclause 17(1) ;
(k) all expenses directly or
indirectly incurred arising out of or in connection with
the entry of an officer of any Government Authorities or
other authorised person on the premises of ETA Logistics
for the purpose of exercising any powers pursuant to the
requirements of any Government Authorities and/or
inspecting, examining, making copies of, taking extracts
of documents on the premises;
(l) any Customs Duty, GST or
other charge assessed against ETA Logistics in relation to
the Goods or Services;
(m) any charges levied by
Government Authorities for examination and treatment of
the Goods.; and
(n) any costs or charges
incurred by ETA Logistics pursuant to clause 31, 32 and
33.
(2) The Customer agrees to
pay any amounts claimed pursuant to the indemnity in
subclause 18 (1) within 7 days of demand by E Trade
Alliance Logistics (ETA Logistics).
(3) The nature of the
indemnity provided pursuant to subclause 18 (1) will
include, without limitation, all penalties, liabilities
and damages assessed against ETA Logistics and its
officers and employees, together with all legal costs
incurred by ETA Logistics (calculated on a
solicitor/client basis). The indemnity shall continue in
force and effect whether or not the Goods have been
pillaged, stolen, lost, damaged or destroyed and shall
not be affected in any way if such pillaging, stealing,
loss, damage or destruction has occurred or been brought
about wholly or in part by the negligence or the alleged
negligence or any default, omission, neglect or default
or any breach of duty of obligation of E Trade Alliance
Logistics (ETA Logistics), its
servants or agents.
(4) ETA Logistics may execute
all or any of its rights pursuant to clause 16 to
recover any amounts owing pursuant to this clause 18.
INSURANCE
(19) ETA Logistics shall not
effect insurance on the Goods except upon receipt of
express instructions given in writing by the Customer
and the Customer's written declaration as to the value
of the Goods. All such insurances effected by ETA
Logistics are subject to the usual exceptions and
conditions of the policies of the insurer or underwriter
taking the risk. At the discretion of ETA Logistics such
insurance may name the Customer or owner as insured. In
the event of any dispute in regard to liability under
any such insurance policy for any reason whatsoever the
Customer or other insured shall have recourse against
the insurer or underwriter only and ETA Logistics shall
have no liability or responsibility in relation to any
such insurance policy.
STORAGE AND TRANSPORT
(20)(1) Subject to express
instructions in writing given by the Customer and
accepted by ETA Logistics in writing (and without limiting
the generality of clauses 7 and 8), ETA Logistics reserves
to itself complete freedom to decide upon the means,
route and procedure to be followed in the handling,
storage and transportation of the Goods and is entitled
and authorised to engage Sub-contractors to perform all
or any of the functions required of ETA Logistics upon
such terms and conditions as ETA Logistics in its absolute
discretion may deem appropriate.
(2) Handling Fees will be
added to any charges on shipments and all payments made
by ETA Logistics on your behalf and
may vary from shipment to shipment. Handling Fees will
change from time to time. We will provide details of the
Handling Fee applicable on request.
(3) Payments made by ETA
Logistics on your behalf will be in such currency as ETA
Logistics chooses.
(21)(1) The Customer agrees
that the value of the Goods shall not be declared or
inserted in a Bill of Lading or a sea carriage document
for the purpose of extending a ship or carrier's
liability under the Carriage of Goods by Sea Act 1991
and Regulations 1998 except upon express instructions
given by the Customer.
(2) In the case of carriage
by air, no option or declaration of value to increase
air-carrier's liability under Article 22(2) of the First
Schedule to the Civil Aviation (Carrier's Liability) Act
1959, will be made except on express instruction given
in writing by the Customer.
(3) In the case of carriage
by land, or any carriage ancillary to the carriage
mentioned above and not expressly provided for under any
contract within these Trading Conditions, under
convention or under any statute or law, the Customer
agrees that the value of the Goods shall not be declared
or inserted into a contractual document or as part of
the trading terms for the purpose of extending the
forwarder or carrier’s liability under any circumstance
except upon express conditions agreed to in writing by
the carrier or forwarder who expressly elect to waive
that right.
(4) In all other cases where
there is a choice of charges by carriers, warehousemen,
stevedores or others according to the extent of the
liability assumed by the carriers, warehousemen,
stevedores or others no declaration of value (where
optional) will be made for the purpose of extending
liability, and the Goods will be forwarded or dealt with
at the Customer's risk for minimum charges, unless
express instructions in writing to the contrary are
given by the Customer.
(5) ETA Logistics shall have
no obligation to take any action in respect of any Goods
that may be recognisable as belonging to the Customer
unless it has received suitable instructions relating to
such Goods together with all necessary documents. In
particular, ETA Logistics shall not be obliged to notify
the Customer of the existence or whereabouts of the
Goods or to examine them or to take any other steps for
their identification, protection or preservation or for
the preservation of any claim by the Customer or any
other party against the carrier, insurer or any third
party.
(6) All freight moved by air
is subject to volumetric conversion on the basis of one
kilo being the equivalent of six thousand cubic
centimetres. Freight moved by other means is subject to
volumetric conversion on the basis of relevant industry
standards or as modified by the carrier’s standard
trading conditions .
PERISHABLE,
NON-DELIVERABLE, HAZARDOUS AND DAMAGED GOODS
(22)(1) Where the Goods are
perishable and are not taken up immediately upon arrival
or are insufficiently or incorrectly addressed or marked
or otherwise not identifiable, they may be sold or
otherwise disposed of with or without notice to the
Customer, consignor, owner or consignee of the Goods and
payment or tender of the net proceeds of any sale after
deduction of all costs, expenses and charges incurred by
ETA Logistics in effecting such sale or disposal shall be
equivalent to delivery.
(2) Where the Goods are
non-perishable and cannot be delivered either because
they are insufficiently or incorrectly addressed or
marked or otherwise not identifiable or because they are
not collected or accepted by the consignee they may be
sold or returned at E Trade Alliance Logistics (ETA
Logistics) option at any time
after the expiration of 21 days from a notice in writing
sent to the Customer at the address which the Customer
gave to ETA Logistics on delivery of the Goods. All costs,
charges and expenses incurred by ETA Logistics and arising
in connection with the sale or return of the Goods shall
be paid by the Customer and may be deducted from the
proceeds of the sale of the Goods. A communication from
ETA Logistics or its agent to the effect that the Goods
cannot be delivered for any reason shall be conclusive
evidence of that fact.
(3) In respect of subclauses
21(1) and (2) above, ETA Logistics sells or otherwise
disposes of such Goods as principal and not as agent and
is not trustee of the power of sale.
(4) In the event that any
sale of Goods pursuant to subclause 21(2) does not
provide sufficient proceeds to discharge all liability
of the Customer to E Trade Alliance Logistics (ETA
Logistics), ETA Logistics acknowledges
that it is not released from the remainder of the
liability to ETA Logistics merely by sale of the Goods.
DESTRUCTION OF DANGEROUS
GOODS
(23) In the event that the
Goods are found to be Dangerous they may be destroyed or
otherwise dealt with at the sole discretion of ETA
Logistics or any other person in whose custody they may be
at the relevant time. If such Goods are accepted under
arrangements previously made in writing they may
nevertheless be destroyed or otherwise dealt with if
they become dangerous to other goods or property. The
expression "goods likely to cause damage" includes goods
likely to harbour or encourage vermin or other pests and
all such goods as fall within the definition of
hazardous and dangerous goods in the legislation
governing carriage by rail in the States and Territories
of Australia.
RAILWAY DECLARATION
(24) ETA Logistics shall be
under no obligation to make any declaration to, or to
seek any special protection or cover from, the
Department of Railways, railways authority or provider
of railways in any State or any airline or road
transport authority in respect of any Goods falling
within the definition of that body:
(1) of dangerous or
hazardous goods; or
(2) of goods liable to be
stored in the open, unless written instructions to that
effect are given to ETA Logistics by the Customer.
PILLAGED GOODS
(25) If the Goods are landed
from any vessel in a damaged or pillaged condition and
an examination might be held or other action taken by
ETA Logistics in respect of thereof no responsibility
attaches to ETA Logistics for any failure to hold such
examination or take such other action unless ETA
Logistics
has been given sufficient notice to enable it to arrange
for such examination or for the taking of such other
action as the case may be.
STORAGE OF GOODS PENDING
DELIVERY
(26) Without limiting the
effect of clause 20, pending forwarding and delivery,
the Goods may be warehoused or otherwise held at any
place or places at the sole discretion of ETA Logistics at
the Customer's risk and expense.
C.O.D. GOODS
(27) ETA Logistics may in its
absolute discretion refuse instructions to collect on
delivery (COD) in cash or otherwise. Where ETA Logistics
does accept such instructions its only obligation to the
Customer is to use reasonable diligence and care in such
collection. ETA Logistics IS NOT LIABLE FOR ANY LOSS OR
DAMAGE ARISING FROM SUCH INSTRUCTIONS OR SUCH COLLECTION
WHETHER CAUSED BY NEGLIGENCE OR OTHERWISE.
LIMITATION OF LIABILITY,
FORCE MAJEURE AND INDEMNITY FROM LIABILITY TO THIRD
PARTIES
(28) Without limiting the
effect of clause 18, to the full extent permitted by
law, ETA Logistics its servants and agents shall not be
responsible for loss or damage of any kind whatsoever
arising out of the provision of its Services to the
Customer (whether caused by negligence or wilful default
by ETA Logistics its servants or agents) and the Customer
agrees to indemnify ETA Logistics in respect of any claims
made by sub-contractors or third parties concerning the
provision of Services by ETA Logistics and the following
matters are expressly covered by this limitation of
liability:
(1) any liability to pay
amounts to Government Authorities (including, without
limitation, Customs Duty or GST) that would not have
otherwise been payable or any penalties (including
penalties imposed directly on E Trade Alliance Logistics
(ETA Logistics), its servants
or agents as a result of their reliance on incorrect
information provided by the Customer, consignor or
consignee of the Goods, or their respective agents
whether imposed by Court or Infringement Notice);
(2) any liability concerning
the making of any statement, forecast, information or
giving advice in relation to the liability of the
Customer to pay any amounts owing to any Government
Authorities;
(3) any liability in respect
of the loss, misdelivery, deterioration, non-delivery,
contamination, evaporation or damage to the Goods or
consequential loss arising therefrom however caused;
(4) any loss or depreciation
of market value attributable to delay in forwarding the
Goods or failure to carry out instructions of the
Customer;
(5) loss, damage, expense or
additional cost arising from or in any way connected
with marks or brands on, weight, numbers, content,
quality, description of the Goods;
(6) loss or damage resulting
from fire, water, explosion or theft;
(7) loss, damage or delay
occasioned by examination of the Goods by any of the
Government Authorities;
(8) loss, damage or delay
occasioned by treatment of the Goods by any of the
Government Authorities (including without limitation,
any fumigation or decontamination or other treatment by
AQIS);
(9) any costs incurred by
ETA Logistics on behalf of the Customer to any other
person in relation to the carriage of the Goods; and
(10) loss, damage or delay
occasioned by delay in the carriage of the Goods or
handling of the Goods in the course of the carriage of
the Goods.
(29) The Customer undertakes
and warrants that neither it, nor any other party that
has an interest in the Goods or Services, shall bring
any claims against any party that has provided all or
any part of the Services (including any Sub-contractor,
principal, employer, employee or agent of E Trade
Alliance Logistics (ETA Logistics))
and where any such claims are made by the Customer or
any other interested party, the Customer undertakes to
indemnify all parties against whom the claims are made
(including E Trade Alliance Logistics (ETA Logistics)) against any loss and damage that
may be suffered as a result of such claims.
(30) ETA Logistics shall not
be liable in any event for any special, incidental, or
consequential damages, including, but not limited to,
loss or profits, income, utility, interest, or loss of
market, whether or not ETA Logistics had knowledge that
such damage might be incurred.
(31) ETA Logistics and
Customer acknowledge that Goods moving by airfreight are
subject to the applicable international treaties
including the Convention for the Unification of Certain
Rules relating to International Carriage by Air, signed
at Warsaw, the 12th October 1929, or that Convention as
amended by the Hague Protocol 1955. The Customer’s
recovery of any loss or damage is against the airline
carrier and is limited in accordance with these or any
other conventions that may be applicable. In the event
of any loss or damage suffered by the Customer whilst
the Goods are in the possession of the airline carrier,
ETA Logistics will seek to recover on behalf of the
Customer from the principal airline carrier amounts
payable by these conventions as they are applicable. The
Customer will indemnify, defend and hold ETA Logistics
harmless against any claims for loss or damage to their
Goods incurred whilst they were in the possession of the
airline carrier.
(32) ETA Logistics and
Customer acknowledge that Goods moving by seafreight are
subject to the applicable international treaties
including the International Convention for the
Unification of Certain Rules relating to Bill of Lading
signed at Brussels on August 25, 1924 (the Hague Rules),
or those rules as amended by the Protocol signed at
Brussels on February 23, 1968 (the Hague Visby Rules)
and the SDR Protocol (1979). The Customer’s recovery of
any loss or damage is against the seafreight carrier and
is limited in accordance with these or any other
conventions that may be applicable. In the event of any
loss or damage suffered by the Customer whilst the Goods
are in the possession of the seafreight carrier, ETA
Logistics will seek to recover on behalf of the Customer
from the carrier amounts payable by these conventions as
they are applicable. The Customer will indemnify, defend
and hold ETA Logistics harmless against any claims for
loss or damage to their goods incurred whilst they were
in the possession of the seafreight carrier.
(33) ETA Logistics and
Customer acknowledge that Goods moving by airfreight or
seafreight may necessary involve a part of transport
undertaken by other means in order to comply with the
terms of carriage under this or any contract between the
parties. Where this is so, and no international treaty
is applicable which covers the additional transport, the
Customer’s recovery of any loss or damage is against the
carrier and is limited in accordance with the convention
applicable for the majority of the transport, even where
that convention does not envisage liability of the kind
of transport concerned. In the event of any loss or
damage suffered by the Customer whilst the Goods are in
the possession of a third party carrier, ETA Logistics
will seek to recover on behalf of the Customer from the
carrier amounts payable by these conventions as they are
applicable. The Customer will indemnify, defend and hold
ETA Logistics harmless against any claims for loss or
damage to their Goods incurred whilst they were in the
possession of the third party carrier, where such
carriage was necessary in order to comply with the terms
of the contract.
(34) ETA Logistics shall not
be liable to the Customer for any breach or failure to
performs its obligations under these Trading Conditions
or any damage or loss to Goods resulting from one of the
following:
(1) perils, dangers and
accidents of the sea or other navigable waters;
(2) act of God;
(3) act of war;
(4) act of public enemies;
(5) arrest or restraint of
princes, rulers or people, or seizure under legal
process;
(6) strikes or lock-outs or
stoppage or restraint of labour from whatever cause,
whether partial or general;
(7) riots and civil
commotions;
(8) saving or attempting to
save life or property at sea; or
(9) any other cause arising
beyond the reasonable control of E Trade Alliance
Logistics (ETA Logistics), without
the actual fault or privity of ETA Logistics and without
the actual fault or privity of the agents or servants of
E Trade Alliance Logistics (ETA Logistics).
(35) If the occurrence of
any event contemplated in clause 36 causes a delay of
over 5 Business Days in any obligation of E Trade
Alliance Logistics (ETA Logistics),
then the provision of Services may be terminated by
notice in writing by either party to the other party.
(36) Any claim made against
E Trade Alliance Logistics (ETA Logistics), its servants or sub-agents is limited to
the full extent permitted by law, where that liability
has not been expressly excluded or limited by any
convention, statute, law or contract. To the extent that
the liability of ETA Logistics is limited by any
convention, statute, law or contract, and that
limitation exceeds the limitation of liability pursuant
to these Trading Conditions then the liability pursuant
to that convention, statute, law or contract shall
apply.
(37) In all cases where
these Trading Conditions, statute, international
convention or otherwise do not exclude the liability of
E Trade Alliance Logistics (ETA Logistics), the liability of
ETA Logistics whatsoever and
howsoever caused shall be limited to whichever is the
lesser between the value of the Goods the subject of the
Agreement at the time the Goods were delivered to ETA
Logistics or Australian $200.
NOTIFICATION OF LIABILITY
(38) Any claim for loss or
damage must be notified in writing to ETA Logistics within
seven days of delivery of the Goods or of the date upon
which the Goods should have been delivered. In any
event, ETA Logistics shall be discharged from all
liability whatsoever in connection with the Services
and/or the Goods unless proceedings are served within
nine months from delivery of the Goods (or from when
they should have been delivered).
GUARANTEE BY DIRECTORS
AND SHAREHOLDERS
(39)(1) If the Customer is a
company, the directors and shareholders of that company
will guarantee the Debts and indemnify and keep
indemnified ETA Logistics against the Debts.
(2) For the purposes of
subclause 39(1), the Customer will ensure that its
directors and shareholders will sign any other documents
required by ETA Logistics to evidence and confirm any
guarantee and indemnity in the form annexed.
INTELLECTUAL PROPERTY
(40) The Customer
acknowledges that ETA Logistics shall retain all copyright
and other intellectual property in any documents or
things created by ETA Logistics in the course of providing
its Services pursuant to these Trading Conditions.
|