AM Logistics (SA) Pty Ltd Terms and Conditions
AM LOGISTICS (SA) PTY LTD
(ABN 28 156 362 739) Standard Trading Conditions
The Customer's attention is drawn to the clauses here of which exclude or limit the Company's liability and those that require the Customer to indemnify the Company in certain circumstances.
These Standard Trading Conditions ("Conditions") apply to all services provided by AM Logistics (SA) Pty Ltd (ABN 28 156 362 739) (the Company).
1. Definitions In these Conditions:
"COMPANY" means AM Logistics (SA) Pty Ltd (ABN 28 156 362 739), its employees, officers, agents and subcontractors.
"CUSTOMER" means any person at whose request or on whose behalf the Company undertakes any business or provides advice, information or services.
"GOODS" are any goods or items which are the subject of the services provided by the Company to the Customer together with any container, packaging or pallet(s) supplied by or on behalf of the Customer.
"GST" means the goods and services tax imposed by or under the GST Law.
"GST Law" means the same as in the A New Tax System (Goods and Services Tax) Act 1999.
"GST RATE" means the rate of GST under the GST Law.
"INVOICE" means the tax invoice under the GST Law.
"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 the Company for the Customer.
"SUBCONTRACTOR" includes any other person who pursuant to a contract or arrangement with any other person (whether or not the Company) provides or agrees to provide the Services or any part of the Services.
"SUPPLY," means the same as in the GST Law.
"TAXABLE SUPPLY" means any Supply under these Conditions in respect of which the Company is or may become liable to pay GST.
2. Not a common carrier
The Company is not a common carrier and accepts no liability as such. The Company reserves the right to accept or refuse the provision of Services in respect of the Goods at its sole discretion.
3. Customer warrants ownership
The Customer warrants that it is either the owner or the authorised agent of the person or persons owning or having any interest in the Goods or any part of the Goods and enters into this Contract on its own behalf or as authorised agent of that person or those persons. Further the Customer undertakes to indemnify the Company in respect of any liability whatsoever and howsoever arising (including without limiting the foregoing from negligence or breach of contract or willful act or default of the Company or others) in connection with the provision of the Services and/or the Goods to any person (other than the Customer) who claims to have, who has or may hereafter have any interest in the Goods or any part of the Goods.
4. Customer warrants compliance with laws
The Customer warrants that it has complied with all laws and regulations relating to the nature, condition, packaging, handling, storage and carriage of the Goods and that the Goods are packed to withstand the ordinary risks of handling, storage and carriage, having regard to their nature and the Customer indemnifies the Company for all liability and for all costs incurred as a result of or arising out of a breach of this warranty. Further the Customer shall provide to the Company all such assistance, information and documentation that may be necessary to enable the Company to comply with such laws and regulations in a timely manner.
5. Duties and excises payable by Customer
All customs and/or excise duties, costs, fines or penalties which the Company becomes liable to pay for any reason whatsoever in respect of the Goods and any documentation relating to the Goods pursuant to any applicable laws or regulations (whether or not resulting from or arising out of the negligence of the Company) shall be paid by the Customer. If these customs and/or excise duties, costs, fines or penalties are in the first instance paid by the Company, the Customer shall reimburse in full to the Company such amounts.
6. Dangerous goods
The Customer shall not tender for the provision of Services by the Company any Dangerous Goods without presenting to the Company a full description disclosing their nature and in any event the Customer shall be liable for all death, bodily injury, loss and / or damage thereby caused and shall indemnify the Company for such liability.
Goods may be destroyed if dangerous If, in the opinion of the Company, the Goods are or are liable to become of a dangerous, inflammable, explosive, volatile, offensive or a damaging nature, they may at any time be destroyed, disposed of or abandoned or rendered harmless by the Company without compensation to and at the cost of the Customer.
7. Abandoned goods – non-perishable
Non-perishable Goods which cannot be delivered either because they are insufficiently packed or incorrectly addressed or because they are not collected or accepted by the Customer 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. All charges and expenses arising in connection with a sale or return of the Goods shall be paid by the Customer.
8. Abandoned goods –perishable
Perishable Goods, which are not taken up immediately upon arrival or which are insufficiently addressed or marked or otherwise not identifiably may be sold or otherwise disposed of without any notice to the Customer and payment or tender of net proceeds of any sale after deduction of charges shall be equivalent to delivery.
9. No declaration of value
Unless expressly instructed in writing by the Customer:
(i) the Company will not make any declaration of value or insert the same into any Bill of Lading or other documents 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
(ii) where there is a choice of tariff rates according to the extent of the liability assumed by carriers, warehousemen or others no declaration or value (where optional) will be made for the purpose of extending liability and the Goods will be forwarded or dealt with at the lowest cost.
10. Special or unusual arrangements
The Company accepts the Goods on the basis that no refrigeration or other special or unusual arrangements for storage or handling will be made unless stipulated and agreed in writing by the Company notwithstanding that the Company may or should be aware from the nature of the Goods or their packaging that some arrangements should be or are in the usual course made for such Goods.
(i) Subject to sub-clauses (ii) and (iii) below, the Goods are at the sole risk of the Customer and not of the Company and the Company shall not be responsible in tort or contract or bailment or otherwise for any, and the consequences of any, loss of or damage to or deterioration of the Goods or misdelivery or failure to deliver or delay in delivery of Goods or delay in providing the Services for any reason whatsoever including without limiting the foregoing the negligence or breach of contract or willful act or default of the Company or others or the conversion or misappropriation of the Goods by the Company's servants, agents or Subcontractors.
(ii) Other than in respect of all those warranties and conditions implied by relevant legislation including the Trade Practices Act 1974 (Cth), the exclusion of which would contravene a statute or cause part or all of this clause to be void ("non-excludable condition"), the Company excludes all other terms, conditions and warranties in relation to the Services provided to the Customer under this Contract.
(iii) The Company's liability for breach of any non-excludable condition is limited at the Company's option, to the supplying again of the Services or the payment of the costs of having the Services supplied again.
12. No liability for handling
Where any handling, installation, removal, assembly or erection of any kind whatsoever is required to be undertaken by the Company, the Company shall not be liable for any death, injury, loss or damage which may result from or arise out of what the Company undertakes. Further the Customer shall indemnify the Company in respect of any such liability whether or not that liability arises from negligence or breach of contract or willful act or default of the Company or the Company's servants, agents or Subcontractors.
(i) The Customer authorises the Company and any Subcontractor to subcontract on any terms the whole or part of the provision of the Services.
(ii) The Customer undertakes:
(a) that no claim or allegation shall be made, whether by the Customer or any other person who is or who may subsequently be interested in the provision of the Services and / or in the Goods, against any person (other than the Company) by whom (whether it is a Subcontractor, principal, employer, servant, agent or otherwise) the Services or any part of the Services are or is provided which imposes or attempts to impose upon such person any liability whatsoever and howsoever arising (including without limiting the foregoing from negligence or breach of contract or willful act or default of the Company or others) in connection with the provision of the Services and / or the Goods and if such claim or allegation should nevertheless be made to indemnify the Company and the person against whom such claim or allegation is made against the consequences of such claim or allegation. For the purpose of this clause, the Company is or shall be deemed to be acting as agent or trustee on behalf of and for the benefit of all such persons and each of them and all such persons and each of them shall to this extent be or be deemed to be parties to this Contract; and
(b) to indemnify the Company against any claim or allegation made against it by any person in connection with any liability, arising out of or relating to the provision of the Services and / or the Goods.
Every exemption, limitation, condition and liberty in these Conditions and every right, exemption from liability, defence and immunity of whatsoever nature applicable to the Company or to which the Company is entitled in accordance with these Conditions shall also be available and shall extend to protect:
(i) all Subcontractors:
(ii) every employee, servant or agent of the Company or of a Subcontractor:
(iii) every other person (other than the Company) by whom the Services or any part of the Services are or is provided; and
(iv) all persons who are or may be vicariously liable for the acts or omissions of any persons falling within paragraphs (i), (ii) or (iii) of this clause; and, for the purpose of this clause, the Company is or shall be deemed to be acting as agent or trustee on behalf of and for the benefit of such persons and each of them and all such persons and each of them shall to this extent be or be deemed to be parties to this Contract.
(i) The Customer authorises any deviation from the usual manner in which the Services are provided which may in the absolute discretion of the Company be deemed reasonable or necessary in the circumstances.
(ii) If the Customer expressly or impliedly instructs the Company to use or it is expressly or impliedly agreed that the Company will use a particular method of providing the Services the Company will give priority to that method but its adoption remains at the sole discretion of the Company and the Customer authorises the Company to provide the Services by another method.
Insurance will not be arranged by the Company. It is the Customer's responsibility to insure the Goods during the performance of the Services.
The charges of the Company shall be considered earned as soon as the Goods are delivered to the Company and / or Goods have been loaded and transported any distance and under no circumstances shall any of those charges be refunded. The Company may charge by weight, measurement or value and may at any time reweigh, remeasure or revalue or require the Goods to be reweighed, remeasured or revalued and charge proportional additional charges accordingly. The Customer is and remains responsible to the Company for all its proper charges whether or not the Goods are delivered and/or the Services are provided as instructed and whether or not the Goods are damaged.
(i)This Clause applies if the Company is or may become liable to pay GST in relation to any Supply under these Conditions.
(ii) Unless otherwise stated, all charges quoted are exclusive of GST. In addition to such charges, the Customer must pay GST on the Taxable Supply to the Company of an amount equal to the GST exclusive consideration multiplied by the GST Rate. 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. In all other respects, GST shall be payable by the Customer to the Company upon the same basis as the GST exclusive consideration is payable by the Customer under these Conditions.
(iii) The Company must issue an Invoice or Invoices to the Customer for the amount of GST referable to the Taxable Supply. The Company must include in any such Invoice such particulars as are required by the GST Law in order that the Customer may obtain an imput tax credit for the amount of GST payable on the Taxable Supply.
(iv) If any part of the consideration is referable to both a Taxable Supply and anything that is not a Taxable Supply, the amount of GST payable by the Customer shall be determined by the Company and shall be the same amount of GST that would be payable if the Taxable Supply were the only Supply made to the Customer.
(v) If the Customer makes default in the payment on the due date of any amount payable pursuant to sub-clause (ii) above then without prejudice to any other remedies of the Company, the Customer shall pay to the Company upon demand an amount equal to the amount of any damages or interest or additional GST that may become payable by the Company arising out of the default of the Customer.
19. Simple interest
The Customer will on demand pay to the Company in respect of any overdue payments, simple interest at the rate of the "Australian 90-Day Bill Rate" plus 2% p.a. Interest will begin to accrue on the day the payment was due to be made and will continue to accrue until the overdue payment (together with accrued interest) has been received in full in immediately available clear funds by the Company.
The Company shall have a lien on all Goods and any documents relating to the Goods and/or any other Goods of the Customer in the possession or control of the Company and any documents relating to those other Goods for all sums (including but not limited to interest and all other sums due and outstanding on other contracts concluded between the Company and the Customer) whatsoever due at any time to the Company from the Customer and shall have the right to sell such Goods by public auction or private treaty without notice to the Customer. The Company shall be entitled to retain the sums due to it, in addition to the charges incurred in detention and sale of such Goods, from the proceeds of sale and shall render any surplus to the Customer.
21. Customer remains liable
Every special instruction to the effect that charges shall be paid by a person other than the Customer shall be deemed to include a stipulation that if that other person does not pay those charges within seven (7) days of delivery or attempted delivery of the Goods, then the Customer shall pay those charges to the Company within seven (7) days of being notified of that other person's failure to pay.
22. No liability for information on duties
The Company shall not be responsible in negligence or contract or otherwise for loss, damage, costs, fines or penalties incurred by the Customer or any other person resulting from or arising out of or in connection with any quotation, advice, statement, representation or information given or made by or on behalf of the Company to the Customer or others as to the classification of or any matter material to the valuation of or the liability for or the amount, scale or rate of customs and / or excise duty or other impost, tax or rate charged in respect of the Goods whatsoever. In giving or making any such quotation, advice, statement, representation or information the Company relies solely on the particulars provided by the Customer which warrants that those particulars accurately and completely describe all aspects of the Goods and the transaction(s) relating to the Goods.
23. Liability limited
In all cases where liability of the Company has not been excluded, whether by these Conditions, by statute or by international convention or otherwise, the liability of the Company whatsoever and howsoever arising is limited to:
(i) Australian $100 or the value of the Goods the subject of the Contract at the time the Goods were received by the Company, whichever is the lesser; or
(ii) in the case of a proven breach of an implied warranty provided by the Trade Practices Act 1974 (Cth) (or any equivalent State or Territory legislation), the payment of the cost of having the Services supplied again, or alternatively the supplying again of those services, at the Company's option.
The Company shall not be bound by any agreement purporting to waive or vary these Conditions unless such agreement to so waive or vary shall be in writing and signed by an executive officer of the Company.
(i)Any claim for loss or damage must be notified in writing to the Company within seven (7) days of delivery of the Goods or of the date upon which the Goods should have been delivered.
(ii) In any event the Company shall be discharged from all liability whatsoever in connection with the provision of the Services and / or the Goods unless suit is brought and notice given within nine (9) months of the provision of the Services or delivery of the Goods or when the Services should have been provided or the Goods should have been delivered, whichever occurs first.
(i) All the rights, immunities and limitations of liability in these Conditions shall continue to have their full force and effect in all circumstances and notwithstanding any breach of this Contract or of these Conditions by the Company or any other person entitled to the benefit of such provisions, notwithstanding that such breach may constitute a fundamental breach of Contract or a breach of a fundamental term.
(ii) It is agreed that if any provision or any part of any provision of these Conditions is unenforceable such unenforceability shall not affect any other provision or any other part of such provision.
27. TPA implied warranties
Notwithstanding anything herein contained the Company shall continue to be subject to any implied warranty provided by the Trade Practices Act 1974 (Cth) (or any equivalent State or Territory legislation), if and to the extent that that Act (or equivalent legislation) is applicable to this Contract and prevents the exclusion, restriction and modification of such warranty.
28. Governing Law and jurisdiction
This Agreement is to be governed by and is to be construed in accordance with the laws in force in Victoria. The Company and the Customer irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts and tribunals of Victoria.