Terms And Conditions | Action Customs And Cargo Services Pty Ltd

ACTION CUSTOMS AND CARGO SERVICES PTY LTD - STANDARD TERMS AND TRADING CONDITIONS

THESE CONTRACTUAL CONDITIONS APPLY TO ALL SERVICES PROVIDED BY Action Customs And Cargo Services Pty Ltd, ABN 14 051 282 921 (the "Company”)

These Trading Conditions include provisions that entirely change, reduce or exclude rights that you (the "Customer") might otherwise have.

DEFINITIONS AND INTERPRETATION

Definitions

In these Trading Conditions, the following defined terms will have the following defined meanings:

"Assets" means all assets, Goods, documents and records of the Customer and/or Owner held by the Company and includes, without limitation, the Goods and shipping documents, bills of lading, insurance policies, commercial invoices and certificates as to weight, quality or other attributes;

"ATD" means an authority to deal as defined by the Customs Act;

"ATO" means the Australian Taxation Office;

"Authority" means the Authorisation and Acknowledgement of Trading Conditions signed by the Customer;

"Authorised Signatory" means the person who signs the Authority on behalf of the Customer;

"Business Day" means any day that is not a Saturday or Sunday on which banks are open for general banking business in New South Wales;

"Company" means Action Customs And Cargo Services Pty Ltd, ABN 14 051 282 921, as holder of Customs Brokers Licence number 01484C and the nominees, agents, sub-agents and employees of the Company;

"Consequential Loss" means any loss or damage (i) which does not arise naturally or in the usual course of things or (ii) which constitutes, or arises from or in connection with, a loss in revenue, profit or opportunity, loss of goodwill or business reputation, even if such loss or damage arises naturally or in the usual course of things;

"Consumer Contract" means a contract between the Company and the Customer for a supply of Services to a Customer that is an individual whose acquisition of the Services is wholly or predominantly for personal, domestic or household use or consumption; "Customer" means:

(a) if there is an Authority, the entity that is taken to have entered into the Authority and will include all employees, officers, agents and contractors of that entity; or

(b) if there is no Authority, any entity that instructs the Company to perform the Services; and for the avoidance of doubt, the Customer may also be the Owner.

"Customs" means the Department of Immigration and Border Protection, the Australian Border Force and the Comptroller-General of Customs;

"Customs Act" means the Customs Act 1901 (as amended), and any succeeding Legislation and any regulations made pursuant to the Customs Act;

"Customs Broker's Licence" means any licence granted by Customs to a party to operate as a licensed customs broker pursuant to Part XI of the Customs Act;

"Customs Duty" has the same meaning as "Duty" in the Customs Act;

"Customs Related Law" has the same meaning as in Section 4B of the Customs Act; "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 or may become liable to cause damage to any person or property whatsoever whether prescribed by Laws or otherwise;

"Debts" means all amounts owing by the Customer to the Company on any account whatsoever;

"DOA" means the Australian Government Department of Agriculture;

"Fees" means the fees charged by the Company for provision of the Services;

"Goods" are any goods or items which are the subject of the Services provided by the Company to the Customer under this Service Agreement;

"Government Authorities" means, without limitation, all Government departments and agencies 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, Customs, DOA, and the ATO;

"GST" has the same meaning as under the GST Law and means the Goods and Services Tax imposed under the GST Law;

"GST Law" means the A New Tax System (Goods and Services Tax) Act 1999;

"Laws" means any laws, regulations or guidelines of the Commonwealth of Australia, any of the States, Territories or Municipalities of Australia, or of any country from which, through which or into which the Goods are carried including, without limitation all regulations, ordinances and directions made pursuant to the Laws and any successor Laws;

"Licence" means any Customs Broker's Licence, or any other licence issued by Customs or other Government Authority;

"Owner" means the owner or importer of the Goods and/or a person or entity authorised to act on behalf of the owner or importer of the Goods;

"PPSA" means the Personal Property Securities Act 2009 (Cth);

"Related Body Corporate" has the same meaning as under the Corporations Act 2001 (Cth) "Security Interest" has the same meaning as under the PPSA;

"Service Agreement" means:

(a) these Trading Conditions;

(b) the Authority (if there is one);

(d) any fee quotation estimate or agreement,

as amended from time to time, regardless of whether the Customer is given notice of any amendment.

"Services" means any performance of work by the Company for the Customer in anyway connected with the transport, customs clearance and warehousing of the Goods;

"Sub-contractor" means any third party appointed by the Company to assist in the provision of the Services;

"Supply" and "Taxable Supply" each have the same meaning as under the GST Law; and "Third Party Trading Conditions" means any contract or agreement between the Owner and the Customer where the Owner is not also the Customer.

Interpretation

2.1 These Trading Conditions and any collateral agreements made by the Company with the Customer wherever made shall be governed and construed according to the laws of New South Wales and shall be subject to the exclusive jurisdiction of the courts of New South Wales and any courts which can hear appeals from those courts.

2.2 If these Trading Conditions are held to be subject to the laws of any jurisdiction other than the State/Territory of New South Wales 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.

2.3 Subject to clause 22, 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 the Company and notwithstanding that the Services have been provided, the Goods delivered as directed by the Customer or the Authority having expired or been terminated.

2.4 In the interpretation of these Trading Conditions the singular includes the plural and vice versa, and words importing corporations mean and include natural persons and vice versa. 2.5 Any forbearance by the Company in enforcing the Trading Conditions does not constitute a waiver. If the Company waives a breach of a Trading Condition, the waiver does not operate as a waiver of another breach of the same or any other Trading Condition or as a continuing waiver.

2.6 Where any provision (or part thereof) of these Trading Conditions is held to be illegal or unenforceable, it may be severed and shall in no way affect or prejudice the enforceability of any other term or condition herein.

2.7 Where there is an inconsistency between the terms and conditions of the Service Agreement, the relevant documents shall be construed in the following descending order of priority:

(a) these Trading Conditions;

(b) the Authority;

(d) any fee quotation estimate or agreement

2.8 Reference to any Laws or to any section or provision of any Laws includes any statutory modifications, re- enactments, substitutions or replacements thereof and all Laws issued there under.

2.9 These Trading Conditions do not affect any rights the Customer has under the Competition and Consumer Act 2010.

2.10 If the Service Agreement between the Company and the Customer is a Consumer Contract:

(a) clause 21 does not apply;

(b) clause 22 applies; and

2.11 If the Service Agreement between the Company and the Customer is not a Consumer Contract:

(a) clause 21 applies; and

(b) clause 22 does not apply.

TRADING CONDITIONS

Nature of Services

3.1 All Services provided by the Company are governed 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.

3.2 The Company may refuse in its sole and absolute discretion to perform the Services without assigning any reason.

3.3 No modification amendments or other variation of the Trading Conditions shall be valid and binding on the Company unless made in writing and duly executed by and on behalf of the Company.

3.4 The Company, its agents, employees or contractors will not be in breach of these Trading Conditions or in their obligations to the Customer in complying with such conditions relating to any Licence or any Laws.

3.5 Without limiting the generality of clause 3.4, the Customer further acknowledges and agrees that:

(a) the Company's obligation may require the Company, its agents, employees and contractors to disclose a breach or possible breach of any Law, including any Customs Related Law, to any Government Authority; and

(b) none of the Company, its agents, employees and contractors will have any liability to the Customer or any other party arising from compliance with its obligations pursuant to the Law or the condition of its Licences.

Acceptance of Trading Conditions

The Authorised Signatory acknowledges and agrees that it has received the Trading Conditions, understands the Trading Conditions and by either signing the Authority or instructing the Company to perform the Services, the Customer will be bound by the Trading Conditions.

Communications with the Company

5.1 Where instructions are to be given to the Company, such instructions will be valid only if given in writing, acknowledged by the Company in writing and given in sufficient time in all the circumstances for the Company reasonably to be able to adopt the instructions. Standing or general instructions, or instructions given late, even if received by the Company without comment, shall not be binding upon the Company. If the Company adopts standing or general instructions, or instructions given late, for one or 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 the Company to adopt late instructions will constitute an acceptance by the Company or affect the validity of those instructions.

5.2 Documents and other matter (including cash, cheques, bank drafts and other remittances) sent to the Company through the post shall be deemed not to have been received by the Company unless and until they are actually delivered to the Company at its office address or placed in the Company's post office box, if so addressed.

Ability to Appoint Agents, Sub-contractors and Third Parties

6.1 The Customer authorises the Company, 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 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 the Company 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.

Payment, Recovery of Fees and GST

7.1 (a) The Company is entitled to retain and be paid all brokerages, commissions, allowances and other remunerations customarily retained by or paid to shipping and forwarding agents, customs brokers and (where the Company accepts specific instructions under clause 11 to effect insurance) insurance brokers 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).

(b) The Company may charge by weight, measurement or value and may at any time reweigh, remeasure or revalue the Goods (or request the same) and charge additional fees accordingly.

(c) If the Customer cancels any Services the Company may at its option require the Customer to pay the Company all costs incurred by the Company prior to cancellation or incurred or arising as a result of that cancellation.

(d) The Company may make an additional charge in respect of any delay in or in connection with loading and unloading which delay is of unreasonable duration in light of all relevant circumstances and which delay is not caused by the default of the Company.

7.2 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 the Company. 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 insurance premiums, warehousing, statutory fees or any other charges applicable to the Goods, quotations and charges are subject to revision accordingly with or without notice to the Customer. Unless otherwise stated, the price quoted does not include the cost of permits, escort and detention, demurrage and storage charges and other additional costs and expenses incurred by the Company in the course of or in connection with the performance of the Services.

7.3 The Company shall under no circumstances be precluded from raising a debit in respect of any amounts payable, including Fees 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.

7.4 This subclause 7.4 applies if the Company is or may become liable to pay GST in relation to any Supply under these Trading Conditions.

(a) Unless otherwise stated, all charges quoted are exclusive of the GST imposed under the GST Law.

(b) The Customer shall be responsible for payment of any GST liability in respect of the Services as provided by the Company or by third parties or Sub-contractors which shall be payable at the same time as the GST-exclusive consideration.

(d) GST shall be payable by the Customer without any deduction or set-off for any other amount.

7.5 All amounts due to the Company in Australia are payable in Australian dollars. The Company is entitled to charge a currency conversion premium when converting receivables into Australian currency.

7.6 The Customer agrees that the Fees will be paid in full within 7 days of the date of an invoice statement unless otherwise agreed in writing.

7.7 If any amounts payable by the Customer are not made within seven days of the due date, the Customer will be in default and without limiting any other rights of the Company, the Customer shall pay to the Company, by way of liquidated damages, interest to be calculated in accordance with the National Australia Bank business overdraft reference rate on the amount outstanding calculated from the due date until payment is made in full.

7.8 The Company 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 the Company.

7.9 The Company, 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 Fees, freight, demurrage, detention charges, duty, fines, penalties, salvage, average of any kind whatsoever and without limitation, 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 including without limitation, the costs of sale and reasonable legal fees. The lien and rights granted by this subclause 7.9 shall survive delivery of the Assets and the Company shall be entitled to retain the proceeds of sale of the Assets in respect of any outstanding amounts referred to in this clause. The Company sells or otherwise disposes of such Assets pursuant to subclause 7.9 as principal and not as agent and is not the trustee of the power of sale.

7.10 Without limiting the generality of subclause 7.9, the Customer acknowledges that the Company may elect to have a security interest which attaches over any Assets which are the subject of the Services and in the Company's possession. The Customer acknowledges and consents to the registration and perfection of the interest set out this subclause 7.10 for the purposes of the act or acts and regulations that is, or are, enacted following the passing of the PPSA.

7.11 To the maximum extent permitted by law, if the PPSA applies, the Customer irrevocably waives any rights the Customer may have to:

(a) receive notices or statements under sections 95, 121(4), 125, 130, 132(3)(d), 132(4) and 135 of the PPSA;

(b) redeem the Assets under section 142 of the PPSA;

(d) receive a verification statement (as defined in the PPSA);

7.12 The Customer agrees to do anything which the Company asks and considers necessary for the purposes of:

(a) ensuring that a Security Interest is created under these Trading Conditions is enforceable, perfected and otherwise effective; or

(b) enabling the Company to apply for any registration, or give any notification, in connection with a Security Interest created under these Trading Conditions so that the Security Interest has the priority required by the Company.

Warranties by the Customer

8.1 The Customer (on behalf of itself, the Owner, the consignor and the consignee) warrants to the Company that:

(a) it is either the owner of the Goods, or the authorised agent of the Owner of the Goods with authority to bind the Owner to act or otherwise have authority to arrange the Services under the Service Agreement;

(b) it has complied with all Laws of any Government Authorities relating to the Services and the Goods;

(d) the Goods are not Dangerous Goods;

(e) the Goods and their carriage do not contravene any Laws; and

(f) all information it has provided in respect of the Goods is accurate and not misleading or deceptive.

Obligations of the Customer

9.1 The Customer (on behalf of itself, the Owner, the consignor and the consignee) will:

(a) provide all documents, information and assistance requested by the Company to enable the Company to comply with the requirements of the Government Authorities in an accurate and timely fashion as required by those Government Authorities, including but not limited to, documents required for customs clearance of the Goods;

(b) retain all documents or records in the manner required by the Government Authorities; (c) observe all requirements of any Government Authorities; and

(d) maintain as confidential the terms of the Authority and these Trading Conditions.

9.2 Where the Customer is not the Owner, the Customer acknowledges and agrees that it enters into these Trading Conditions as the Owner's agent and will:

(a) undertake due diligence as to the identification of the Owner and on request by the Company, provide evidence of that due diligence and the reasonable basis for accepting the Owner's identity;

(b) ensure all limitations of liability that apply to the Customer as provided for in the Third Party Trading Conditions apply equally to the Company;

(d) on request, provide documentary evidence of the Owner's instructions regarding the provision of the Services by the Company;

(e) on request, provide the Third Party Trading Conditions to the Company; and

(f) pay all Fees, charges or other costs incurred by the Company in providing the Services in respect of the Owner's Goods regardless of whether the Customer has received payment or reimbursement by the Owner of such Fees, charges or other costs.

Indemnity by the Customer

10.1 Without limiting the effect of these Trading Conditions, the Customer indemnifies and will pay to the Company on demand:

(a) any amount of loss or damage incurred or suffered by the Company which is directly or indirectly caused by the Goods or by breach of these Trading Conditions by the Customer;

(b) amounts of Customs Duty, GST and other payments made to Government Authorities, by or otherwise assessed against, the Company in connection with the Goods or Services;

(c) any penalties payable by the Company (whether pursuant to a court order or an Infringement Notice) due to the Customer:

(1) providing information that is incorrect, misleading or deceptive;

(2) omitting to provide material information required to the Government Authorities;

(3) providing information in a manner which does not enable the Company to comply with the requirements of the Government Authorities for reporting in prescribed periods; and/or (4) failing to provide information or documentation requested by the Company;

(d) liabilities or costs incurred by the Company on behalf of the Customer associated with the Services;

(e) losses or damage incurred by the Company due to a breach by the Customer of any of the warranties in subclause 8.1;

(f) 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 the Company 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 to the extent that the exercise of the powers is related to the Services;

(g) any costs or charges incurred by the Company as a result of or in connection with a direction or request from Customs in relation to the Goods or Services;

(h) any costs or charges incurred by the Company as a result of or in connection with a suspension or cancellation by Customs of an ATD in relation to the Goods or Services;

(i) any costs, charges or penalties incurred by the Company as a result of or in connection with any breach, suspension, cancellation or variation of conditions of any Licences in relation to the Goods or Services;

(j) any costs or charges incurred by the Company as a result of or in connection with the Company complying with any conditions or Laws in respect of any Licences in relation to the Goods or Services;

(k) any claims made by the Owner, Sub-contractors or third parties concerning the provision of the Services by the Company; and

(l) any costs or charges incurred in recovering any amounts payable to the Company by the Customer (including, without limitation, costs of legal proceedings).

10.2 The Customer will pay any amounts claimed pursuant to the indemnity in subclause 10.1 within 7 days of demand by the Company.

10.3 The nature of the indemnity provided pursuant to subclause 10.1 will include, without limitation, all penalties, liabilities, all losses (including indirect and Consequential Loss) and damages assessed against the Company and its officers and employees, together with all legal costs incurred by the Company (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.

10.4 The Company may execute all or any of its rights pursuant to clause 7 to recover any amounts owing pursuant to this clause 10.

10.5 There is no need for the Company to suffer or incur any losses, costs, damages, liabilities, judgments, penalties or expenses before requiring payment from the Customer.

Insurance

The Company 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 the Company are subject to the exceptions and conditions of the policies of the insurer or underwriter taking the risk. At the discretion of the Company 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 the Customer or other insured shall have recourse against the insurer or underwriter only and the Company shall have no liability or responsibility in relation to any such insurance policy.

Storage and Transport

12.1 The Company has complete freedom to decide upon the means and procedure to be followed in the handling and storage of the Goods and is entitled and authorised to engage Sub-contractors to perform all or any of the functions required of the Company upon such terms and conditions as the Company in its absolute discretion may deem appropriate.

Perishable, Non-deliverable, Uncollected, Hazardous and Damaged Goods

13.1 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 the Company in effecting such sale or disposal shall be equivalent to delivery.

13.2 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 uncollected or not accepted by the consignee they 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 storage, 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 its agent to the effect that the Goods cannot be delivered for any reason shall be conclusive evidence of that fact.

13.3 Where the Goods are stored by the Company for the Customer and they are uncollected for whatever reason they 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 storage, 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 its agent to the effect that the Goods cannot be delivered for any reason shall be conclusive evidence of that fact.

13.4 In respect of subclauses 13.1, 13.2 and 13.3 above, the Company sells or otherwise disposes of such Goods as principal and not as agent and is not trustee of the power of sale. 13.5 In the event that any sale of Goods pursuant to subclauses 13.1, 13.2 and 13.3 does not provide sufficient proceeds to discharge all liability of the Customer to the Company, the Company acknowledges that it is not released from the remainder of the liability to the Company merely by sale of the Goods.

Destruction of Dangerous Goods

In the event that the Goods are found to be Dangerous Goods 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 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.

Inspection

The Company may without liability open any package or other container which the Goods are placed or carried to inspect the Goods either to determine their nature or condition or to determine their ownership or destination.

Storage of Goods pending delivery

16.1 Without limiting the effect of clause 12, pending forwarding and delivery, the Goods may be warehoused or otherwise held at any place or places at the sole discretion of the Company at the Customer's risk and expense.

16.2 In circumstances were the Company stores the Goods, the Company may, by notice in writing, require that the Customer remove the Goods for any reason whatsoever within 7 days from receipt of a notice delivered to the address which the Customer gave to the Company on delivery of the Goods. If the Customer fails to do so, the Company may remove the Goods and store them in such a manner and in such a place as the Company thinks appropriate at the Customer's expense and risk.

Limitation of Liability, Force Majeure and Indemnity from Liability to Third Parties

17.1 Without limiting the effect of clause 9, to the full extent permitted by law, the Company 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 and the Owner (whether caused by negligence or wilful default by the Company its servants or agents) and the following matters are expressly covered by this limitation of liability:

(a) 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;

(b) any liability concerning the making of any statement, forecast, information or giving advice in relation to the liability of the Customer or Owner to pay any amounts owing to any Government Authorities;

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

(d) any loss or depreciation of market value attributable to delay in forwarding the Goods or failure to carry out instructions of the Customer or Owner; and

(e) 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.

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

17.2 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, nominee or agent of the Company) and where any such claims are made by the Customer, the Owner or any other interested party, the Customer undertakes to indemnify all 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.

17.3 The Company shall not be liable in any event for any Consequential Loss whether or not the Company had knowledge that such damage might be incurred.

17.4 The provision of clauses 17.1, 17.2 and 17.3 continue to apply whether or not any such loss, damage, destruction, non-delivery, mis-delivery, delay in delivery or failure to produce arises out of or in connection with any breach of the contract by the Company which would constitute a fundamental breach of contract or a breach of a fundamental term of the contract.

17.5 Without limitation to clause 17.1, the Company shall not be liable to the Customer or Owner 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:

(a) perils, dangers and accidents of the sea or other navigable waters;

(b) act of God;

(d) act of terrorism;

(e) act of public enemies;

(f) arrest or restraint of princes, rulers or people, or seizure under legal process;

(g) strikes or lock-outs or stoppage or restraint of labour from whatever cause, whether partial or general;

(h) riots and civil commotions;

(i) saving or attempting to save life or property at sea;

(j) act of any government or authority; or

(k) any other cause arising beyond the reasonable control of the Company, without the actual fault or privity of the Company and without the actual fault or privity of the agents or servants of the Company.

17.6 If the occurrence of any event contemplated in subclause 17.5 causes a delay of over 5 Business Days in any obligation of the Company, then the provision of Services may be terminated by notice in writing by either party to the other party. However, all costs, charges and expenses already incurred by the Company prior to the termination or arising in connection with the disposal or return of the Goods shall be paid by the Customer.

17.7 Any claim made against the Company, its servants or sub-agents is limited to the full extent permitted by Law. To the extent that the liability of the Company is limited by any statute, Law or contract, and that limitation exceeds the limitation of liability pursuant to these Trading Conditions then the liability pursuant to that statute, Law or contract shall apply.

17.8 If the Customer is not acquiring the Services wholly or predominately for personal, domestic or household use or consumption, the Company's liability to the Customer for a breach of any non-excludable warranty, condition or guarantee is limited, at the Company's option, to supplying the Services again, or the cost of supplying the Services again.

Notification of Liability

Any claim for loss or damage must be notified in writing to the Company within seven days of delivery of the Goods or of the date upon which the Goods should have been delivered. Time is of the essence of this clause and a note or narration on a delivery docket does not constitute the giving of notice.

Guarantee, Undertaking and Indemnity by Directors and Shareholders

19.1 If the Customer is a company, the directors and shareholders of that company will guarantee the Debts, undertake to perform the obligations of the Customer and indemnify and keep indemnified the Company against the Debts.

19.2 For the purposes of subclause 19.1, the Customer will ensure that its directors and shareholders will sign any other documents required by the Company to evidence and confirm any guarantee, undertaking and indemnity in the form annexed to these Trading Conditions.

Intellectual Property

The Customer acknowledges that the Company shall retain all copyright and other intellectual property in any documents or things created by the Company in the course of providing its Services pursuant to these Trading Conditions.

Non-consumer provisions

21.1 The Customer must not assign the Customer's rights or transfer the Customer's obligations under the Service Agreement without the Company's prior written consent. The Company may assign the Company's rights and obligation under the Service Agreement without the Customer's consent.

21.2 The Company 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 including consolidating the Goods with other goods. That discretion will be varied only by instructions delivered by the Customer to the Company in writing and acknowledged by the Company in writing 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. THE COMPANY 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 THE COMPANY 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 THE COMPANY OR ITS SERVANTS OR AGENTS OR HOWEVER CAUSED. 21.3 Any term in these Trading Conditions which limits the Company's liability will also extend and apply to any Sub-contractor, agent or nominee. For the purpose of this subclause 21.3, the Company is deemed to be acting as agent or trustee for the Company's agents, employees, nominees and Sub-contractors and each of those persons shall be deemed to be a party to these Trading Conditions.

21.4 The Company 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). Time is of the essence in respect to this clause.

21.5 The indemnity provided in subclause 10.1, 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 the Company, its servants or agents or fundamental breach of contract by the Company, its servants or agents.

21.6 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, nominee or agent of the Company) 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 the Company) against any loss and damage that may be suffered as a result of such claims. It is agreed that this release and indemnity operates irrespective of how the claim or allegation arises including negligence or out of events which may constitute a fundamental breach of contract or a breach of a fundamental term of a contract.

21.7 In all cases where these Trading Conditions, Laws or otherwise do not exclude the liability of the Company, the liability of the Company whatsoever and howsoever caused shall be limited to whichever is the lesser between the value of the Goods the subject of the Service Agreement at the time the Goods were delivered to the Company or Australian $200.

Consumer provisions

22.1 Neither Party may assign its rights or transfer its obligations under the Service Agreement without the other Party's prior written consent, which must not be unreasonably withheld.

22.2 The Company, acting reasonably, reserves to the right 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 including consolidating the Goods with other goods. THE COMPANY 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 THE COMPANY 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.

22.3 Where the Company accepts instructions to deliver on a COD basis, THE COMPANY IS NOT LIABLE FOR ANY LOSS OR DAMAGE ARISING FROM SUCH INSTRUCTIONS OR SUCH COLLECTION, EXCEPT TO THE EXTENT THAT THE LOSS OR DAMAGE WAS CAUSED BY THE COMPANY NOT USING REASONABLE DILIGENCE AND CARE IN SUCH COLLECTION.

22.4 The Company shall not be liable in any event for any Consequential Loss unless the Company had knowledge that such damage might be incurred.

22.5 Clause 17 will not apply to the extent that:

(a) the Company directly caused loss or damage; or

(b) the loss or damage was caused by negligence or wilful default by the Company, its servants or agents.