Terms and Conditions

Definitions

Carrier means any person, company or entity engaged to carry goods, whether by air, sea or road.

Company means Powerhouse Logistics Pty Ltd and their nominees, officers, agents, sub-agents and employees.

Customer means the entity or person to whom these services are provided and will include all employees, officers, agents and contractors of the Customer, and any party acting for and on behalf of the Customer.

Goods means any goods or items which are the subject of services provided by the Company to the Customer under these Standard Terms and Conditions of Contract or any other agreement.

Government Authority means, without any limitation, all Government Departments with the responsibility for the export and import of Goods, the collection of revenue on the import and export of Goods and the transport of these Goods, including (but are not limited to) the Australian Customs Service, the Australian Quarantine Inspection Service and the Australian Taxation Office.

Services means the benefits, rights, obligations and performance of work by the Company to the Customer.

The Company carries on business as a freight forwarder, customs broker, road transporter and warehouse operator.

1. These standard conditions apply to all services provided by the Company. The Company only deals with Goods subject to these conditions which prevail over any other terms including the Customer’s terms and conditions and any other terms and conditions contained in any transport document including any bill of lading, air or sea waybill or consignment note except to the extent provided for in these conditions. The Company is not a common carrier and accepts no liability as such. The Company may refuse at its sole and absolute discretion to accept any goods for carriage without giving any reason, and may return any goods at any time to the Customer.

2. Any instructions received by the Company from the Customer for the supply of services will constitute acknowledgement by the Customer that it has received, read, understood and agrees to be bound by the Trading Terms. Such instructions will also constitute authorisation by the Customer to the Company to act on behalf of the Customer in accordance with these standard terms and conditions.

3. No modification, amendment or other variation of any Trading Conditions are valid and binding on the Company unless made in writing and signed by each party. No agent or employee of the Company has the Company’s authority to alter or vary these conditions. Customers entering into transactions with the Company expressly warrant that they are either the owners or the authorised agents of the owners of the goods or property, the subject matter of the Services. By contracting for the Services the Customer accepts these conditions for and on behalf of all and any other relevant parties.

4. The Company reserves complete freedom to decide the manner, means, route and/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 may only be varied by instructions delivered by the Customer to the Company, acknowledged by the Company and if the instructions are provided to the Company in sufficient time before the performance of any Service to reasonably allow the Company to adopt the manner of performing the Service required by the special instructions. If in the Company’s opinion it is necessary or desirable in the customer’s interests to depart from any express instructions, the Company shall be at liberty to do so. The Company at its own discretion may warehouse, or hold any Goods at any place at any time, at the Customer’s risk and expense.

5. Subject to these Trading Conditions, the Company agrees and the Customer authorises the Company as agent for the Customer to contract with any sub-contractor for the Services, carriage, movement, transport or storage of the Goods or for the performance of any ancillary services. Any such contract may be made upon the terms of the contract used by the sub-contractor and the Customer will be bound by and subject to all exclusions and other terms and conditions without recourse to or any claim against the Company by reason of the Company entering into such arrangements.

6. Where there is a choice of charges, by Carriers, warehousemen, stevedores or others according to the extent of liability assumed by the carriers, warehousemen, stevedores or others, 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.

7. Quotations are given on the basis of immediate acceptance and may be withdrawn or revised by the Company at any time prior to acceptance. Unless stated otherwise, all charges quoted are exclusive of GST. Quotations are valid only for the specified weight and volume and designated services and standard of services quoted. The Company may charge by weight, measurement or value and may at any time reweigh, re-measure or revalue the goods (or request the same) and charge additional fees accordingly.

8. The Customer is responsible for and will pay all duties, taxes, fines, penalties, port storage and transport charges, insurance costs and all other imports, costs, expenses, losses or damages, or any other charge incurred relating to the Goods or Services other than those specifically included in the agreed price.

9. The Company’s charges to the customer including freight are deemed fully earned on receipt of the Goods by the Company and shall be paid and non-returnable in any event, cargo lost or not lost or a voyage or flights broken up or abandoned. In the event of any interruption or abandonment howsoever caused of a voyage or flight at the port or airport of shipment or elsewhere or at any inland place, any forwarding of the Goods or any part thereof shall be at the risk and expense of the Customer and the consignors, owners and consignees and the Company bears no liability in respect of same.

10. Except under special arrangements previously made in writing the Company will not accept bullion, coins, precious stones, jewellery, valuables, antiques, pictures, livestock or plants and the Company will not accept any liability whatever for any such Goods except under special arrangements previously made in writing.

11. The Company will have no liability or responsibility by virtue of the fact that there may be a change in the rates of duty, wharfage, freight, railage or cartage or any other tariff before or after the performance by the Company by virtue of the fact that a saving may have been effected in some other way or at some other time, irrespective of whether the performance is delayed or precipitated through the negligence of the Company or its servants or agents or however caused.

When Goods are accepted or dealt with upon instructions to collect freight, duties, charges or other expenses from the consignee or any other person, the Customer shall remain responsible for the same if they are not paid by such consignee or other person.

12. The Customer consignors, owners and consignees of the Goods and their agents, if any, shall be jointly and severally liable for any duty, tax, impost, excise, levy, penalty, deposit or outlay of whatsoever nature levied by any Government Authority at any port or place in connection with the Goods and for any payments, fines, expenses, loss or damage incurred or sustained by the Company in connection therewith and shall indemnify the Company, its servants and agents from all claims by third parties howsoever arising in connection with the Goods.

13. All amounts due to the Company are payable in the currency in which they were invoiced. At the option of the Company, amounts may be paid in the currency of the place of delivery at the applicable exchange rate in effect on the day of payment or if the date of payment falls on a day which banks are closed for business, the rate ruling on the next business day. The Customer will be responsible for any loss on account of exchange rate differentials and/or banking charges.

14. Instructions to collect payment on delivery in cash or otherwise are accepted by the Company upon the condition that the Company, its agents and servants will exercise reasonable diligence and care in such collection. If any sums or monies are not paid by the Customer to the Company, the Customer will pay to the Company, interest at 2% per month.

15. The Company is entitled to retain and be paid all brokerages, commissions, allowances and other remunerations customarily retained by or paid to other companies carrying out the services of the Company including insurance broker whether declared or otherwise, and any goodwill or intellectual property rights that may be created by the provision of the Services shall remain and vest with the Company.

16. No insurance will be effected on any Goods except upon express instructions given in writing by the Customer and the Customer’s written declaration as to the risks which are to be insured against and the value of the Goods and then only if such insurance is available through the Company. All insurances effected by the Company are subject to the usual exceptions and conditions of any relevant insurance policies and on underwriters accepting the risk. The Company shall not be under any obligation to effect a separate insurance on each consignment but may declare it on any open or general policy. In the event of any dispute in regard to liability under such insurance policy, the insured shall have recourse against the insurers only and the Company shall not be under any responsibility or liability in relation to any such insurance policy.

17. Where any amounts payable under any agreement between the Company and the Customer are not paid within 7 days of the due date, all amounts due to the Company by the Customer shall immediately and without further notice become due and payable, and interest shall accrue thereafter as provided for in clause 14.

18. The Company, its servants or agents will have a special and general lien on all and any Goods and a right to sell the Goods whether by public or private sale or auction without notice, for freight, demurrage, container detention charges, duty, fines, penalties, salvage, average of any kind whatsoever and without limitation including any sum owed on any other Goods belonging to the same Customer 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 legal fees.

The lien and rights granted by this clause will survive delivery of the Goods. The Company is entitled to retain the proceeds of sale of the Goods in respect of any outstanding amounts referred to in this clause. The Company sells or otherwise disposes of such Goods as principal and not as agent and is not the trustee of the power of sale.

19. Unless expressly instructed in writing given by the Customer and accepted by the Company in writing:

(a) The Company will not make any declaration of value or insert the same in any bill of lading or other document on behalf of the Customer for the purpose of extending or preserving the liability of any shipper or Carrier as may be provided by any relevant statute and/or applicable law; and

(b) In the case of carriage by air, the Company will not make any option or declaration of value to increase air-Carriers’ liability as may be provided by any relevant statute and/or applicable law.

20. The Customer (on behalf of itself, the consignor and the consignee) warrants:

(a) it will provide in an accurate and timely fashion all documents, information and assistance required by the Company to comply with the requirements of any Government Authority and will retain all documents or records in the manner required by any Government Authority;

(b) except where the Company is instructed in writing to pack the Goods, that the Goods are properly and sufficiently packed to withstand ordinary risks of handling storage and carriage, having regard to their nature and shall comply with all laws and regulations of any Government Authority relating to the nature, condition, packaging, handling, storage and carriage of the Goods;

(c) the Goods are not noxious, dangerous, hazardous, inflammable, explosive or likely to cause damage. The Customer further warrants that the Goods are neither dangerous nor hazardous for the purposes of the legislation governing cartage by road or rail in the States and Territories of Australia. The Customer further warrants that the Goods are not likely to harbour or encourage vermin or other pests;

(d) the Goods do not breach any applicable law either in Australia, or any laws in any country through which the Goods may be carried, loaded or discharged;

(e) the Customer is either the legal owner of the Goods or has authority to arrange their carriage and to agree to the Services.

21. The Customer acknowledges that a breach or failure to observe one or more of the warranties above could lead to penalties, claims, damages, costs and expenses to the Customer and also to the Company and the Customer agrees to provide an indemnity to the Company for any liability whatsoever which may fall or be levied on the Company by reason of any breach or any failure by the Customer.

22. The nature of the indemnity provided under clause 21 includes, without limitation, all penalties, liabilities and damages whatsoever or howsoever arising against the Company and its officers and employees, together with all legal costs incurred by the Company (calculated on a solicitor/client basis). This indemnity includes (but is not limited to):

(a) any and all costs, penalties and/or liabilities to the Company arising from the act or omission of the Customer which the Company makes on behalf of the Customer to any Government Authority. Such acts or omissions include (but are not limited to) any failure by the Customer:

i). to pay any amounts of customs duty, GST and other payments;

ii). to provide information to any Government Authority that is material;

iii). to maintain or provide documents and records in the manner and at the time contemplated by any Government Authority, or that they be reasonably requested;

iv). to provide information regarding the status of the Goods that is not misleading or deceptive as defined under the relevant provisions of the Trade Practices Act 1974 (Cth) or any other applicable legislation;

v). to rectify any errors or misrepresentations by the Customer that leads to the Company being liable for damages as a result of same;

and in any event, the Customer agrees to pay any sum pursuant to the Indemnity within seven days.

(b) any and all costs and/or liabilities to the Company arising from the Customer’s failure to return any shipping container or air freight container or transport equipment of any kind to the relevant shipping line and/or airline and/or transport operator within the time required by the contract between the Company and the relevant shipping line and/or airline and/or transport operator who is the supplier and/or owner of that shipping container or air freight container or transport equipment including (but not limited to) any damages, shipping container detention or demurrage charges; and

(c) any and all costs and/or liabilities to the Company arising from the Customer’s failure to return any shipping container or air freight container or transport equipment to the relevant shipping line and/or airline and/or transport operator in the condition required by the contract between the Company and the relevant shipping line and/or airline and/or transport operator who is the supplier and/or owner of that shipping container or air freight container or transport equipment including (but not limited to) any charges relating to damage sustained to the shipping container or air freight container or transport equipment, or any cleaning costs that are incurred as a result of the shipping container or air freight container or transport equipment being returned to the shipping line and/or airline and/or transport operator in an unclean condition.

23. 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 through any breach of duty of obligation by the Company, its servants or agents. The Customer agrees to pay any amounts claimed pursuant to the indemnity under clause 21 within 7 days of written demand by the Company. The Company reserves its right to take any lawful steps it deems necessary under these Standard Terms and Conditions of Contract and in law to recover any amounts owed to it by the Customer, together with interest.

24. In the event that the Goods are found to be noxious, dangerous, hazardous, inflammable, explosive or likely to cause damage, they may be destroyed or otherwise dealt with at the sole discretion of the Company or any other person in whose custody they may be at the relevant time.

If such Goods are accepted under arrangements previously made in writing they may nevertheless be so destroyed or otherwise dealt with if they become dangerous to other goods, property or life, or if there is a reasonable belief that damage is likely to occur.

25. 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 the Company in effecting such sale or disposal will be equivalent to delivery.

26. Non-perishable Goods which 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 or the Customer or cannot be delivered due to the non-surrender of the original bill of lading or failure to make any required payment, may be sold or returned at the Company’s option at any time after the expiration of 21 days from a notice in writing sent to the Customer at the address which the Customer gave to the Company on delivery of the Goods. All costs, charges and expenses incurred by the Company and arising in connection with the 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 the Company or agent to the effect that the Goods cannot be delivered for any reason will be conclusive evidence of that fact.

27. Where the Company sells or otherwise disposes of such Goods as contemplated in clauses 24, 25 and 26 above, it does so as principal and not as agent and is not the trustee of the power of sale.

28. To the full extent permitted by law, the Company, its servants and/or agents shall not be responsible for loss or damage of any kind whatsoever arising out of the provision of its services to the Customer (whether caused by negligence or wilful default by the Company, its servant or agents). In any event, the Company shall not be liable for any special, incidental or consequential loss including, but not limited to consequential loss, loss of profits, income, utility, interest or loss of market whether or not the Company had knowledge that such damage or loss may have been incurred. The Customer further agrees to indemnify the Company in respect of any claims made by sub-contractors or third parties concerning the provision of services by the Company. The following matters are expressly covered:

(a) 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;

(b) any liability in respect of the loss, misdelivery, deterioration, non-delivery, contamination, evaporation or damage to the Goods or consequential loss however caused;

(d) loss, damage, expense or additional costs arising from or in any way connected with marks, numbers, brands, contents, quality or description of any Goods;

(e) or loss or damage resulting from fire, water, explosion or theft;

(f) loss, damage or delay occasioned by examination of the Goods by any Government Authorities;

(g) any costs incurred by the Company on behalf of the Customer to any other person in relation to the carriage of the Goods; and

(h) 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, will bring any claims against any party other than the Company that has provided all or any part of the Services (including any sub-contractor, principal, employer, employee or agent of the Company). Where any such claims are made by the Customer or any other interested party, the Customer undertakes to indemnify all such parties against whom the claims are made (including the Company) against any loss and damage that may be suffered as a result of such claims. The Customer also undertakes that it will indemnify the Company against any costs incurred or any losses suffered by the Company as a result of these claims against any sub-contractor, principal, employer, employee, servant or agent of the Company.

30. Any claim for loss or damage must be notified to the Company within 7 days of any damages, or the date when the Goods should have been delivered, in writing. The Goods will be deemed to be delivered as described, unless notice of loss or damage is given to the Company within three days of delivery of the Goods or of the date upon which the Goods should have been delivered. In any event, the Company shall be discharged from all liability in connection with the Service or Goods unless proceedings are commenced and served within six months from the date of delivery of the Goods (or in the event that no delivery has occurred, the date on which the Goods should have been delivered).

31. Liability of the Company arising out of any one incident, whether or not there has been any declaration of value of the Goods, is limited to any of the following:

(a) the re-supplying of the Services; or

(b) the payment of the cost of having the Services supplied again; or

(c) the lesser of A$200.00 for loss of or damage to any such Goods, packages or units or A$2.00 per kilogram of the gross weight for loss of or damage to any such Goods, packages or units or A$20.00 per package or unit lost or damaged, whichever is the lower.

32. For the purposes of this clause the word “package” shall include the contents even if particulars have been provided or incorporated in any document of the Company.

33. The Company shall not be liable to the Customer for any breach or failure to perform its obligations under these Standard Conditions resulting from any event of force majeure, frustration, or any event or occurrence outside the reasonable control of the Company, including but not limited to strikes, lockout, arrest, restraints of princes, acts of god, acts of war, attempting to save life or property, and any other dangers, occurrences, without fault or priority of the company.

34. If the Customer is a company, the Directors and Shareholders of that company will guarantee all debts and liabilities and agree to indemnify the Company against any such debts or liabilities, that may arise in connection with these standard conditions, and shall be bound by these terms.

35. These standard conditions and any collateral agreements made by the Company with the Customer will be governed by the exclusive laws and jurisdiction of New South Wales.

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