Terms and Conditions of Carriage
These are the entire Terms and Conditions of Carriage (“Conditions”) governing the supply of Services being the whole of the operations undertaken by the Carrier in relation to the goods, including the carriage, storage, loading, unloading, packing, unpacking, freight forwarding, customs clearance, consolidation and deconsolidation (“Services”) by Ship XL Pty Limited ACN 679 897 093 of 8/37 Nicholson St, Balmain East, NSW, Australia, 2041 and its subsidiary, parent and related Corporations (within the meaning of section 50 of the Corporations Act 2001), its successors and assigns, its servants, officers, agents and subcontractors and any subcontractors of subcontractors (collectively the “Carrier”) to its Customers, whether a person or an entity or being either the shipper, consignor, the owner of the goods, consignee, receiver or their respective authorised agent (“Customer”). Except as agreed in writing by a duly authorised officer of the Carrier, no other conditions (including terms and conditions that may appear on a purchase order form, service level agreement or other document issued by a Customer) will be binding on the Carrier.
1. Application of Conditions
1.1. These Conditions cover the whole, or any part of, the Services performed by the Carrier for the Customer. All rights, immunities and limitations of liability in these Conditions shall continue to have full force and effect notwithstanding any breach of this contract by the Carrier or any other person entitled to the benefit of such provisions.
1.2. The Customer’s own terms and conditions shall in no way diminish these Standard Terms and Conditions of Contract and any provision in the Customer’s own terms and conditions which is contrary to any provision of these Standard Terms and Conditions of Contract shall to the extent of such inconsistency be inapplicable
2. Not a Common Carrier
2.1. The Carrier is not a common carrier and accepts no liability as such. The Carrier may refuse the carriage or transport of goods for any person or corporation and the carriage or transport of any class of goods is at the Carrier’s absolute discretion
3. Warranties and Undertakings
The Customer warrants that:
3.1.1. it has complied with all applicable laws and regulations relating to the nature, condition, packaging or carriage of the goods (including the Australian Code for the Transport of Dangerous Goods by Road and Rail, Civil Aviation Regulations and the International Maritime Dangerous Goods Code) about the notification, classification, description, labelling, transport and packaging of the goods and that, given their nature, the goods are packaged in a manner, having regard to their nature, adequate to withstand the ordinary risks of carriage;
3.1.2. the goods are accurately described on the consignment note or in the Carrier’s electronic gateway;
3.1.3. it is either the owner of the goods and/or the authorised agent of the person(s) owning or having any interest in the goods and it enters into this contract on its own behalf and/or as authorised agent of that person or persons;
3.1.4. it is authorised by the person(s) owning or having any interest in the goods that those goods will be handled on an “authority to leave” basis, unless otherwise agreed by the Carrier;
3.1.5. it shall inform to the Carrier of any shipment with a value exceeding fifty thousand Australian dollars (AUD $50,000.00) prior to dispatch.
3.2. The Customer hereby indemnifies the Carrier against any expenses, charges or losses sustained by the Carrier in complying with the requirements of any law or otherwise incurred as a result of a breach of the warranties in clause 3.1 including but not limited to any claims by any third party.
3.3. The Carrier shall comply with all statutory obligations that apply to the provision of the Services including but not limited to occupational health and safety laws, public health orders and any applicable road transport laws.
3.4. The Customer acknowledges that in the event of non-compliance with clause 3.1.1 that the Carrier reserves the right not to carry any non-compliant goods.
3.5. For international carriages, the Customer shall complete the customs declaration fully, accurately and legibly and is responsible for ensuring compliance with the import regulations of the country of destination, including attaching all documents required for importation of the goods, including the certificate of origin, health certificate, commercial invoice, packing list, import licence and any exemption certificate, to the consignment note.
3.6. Any customs penalties, storage charges or other expenses, including but not limited to duties and taxes incurred as a result of the actions of customs or governmental authorities or the Customer or the addressee, or as a result of the addressee’s failure to provide proper documentation and/or to obtain the required licence or permit, will be charged to the addressee of the shipment. In the event that the addressee refuses to pay, the Customer shall be liable for these charges.
4. Performance of Services
4.1. The method(s) of undertaking the Services shall be at the sole discretion of the Carrier and the Customer hereby authorises the Carrier to adopt any method(s) other than any method which may have been instructed or agreed.
4.2. The Customer authorises any deviation from the usual route of carriage.
4.3. The Carrier shall not be liable for failure to fulfil its obligations under this agreement where such a failure is due to force majeure which for the purposes of these Conditions is, but is not limited to government or legislative actions, embargoes, strikes, industrial disputes or actions, riots, civil commotion, insurrections, blockades, war, acts of God, fire, flood, storm and tempest, lockouts or any other cause beyond the reasonable control of the Carrier.
5. Delivery
5.1. The Carrier shall use reasonable endeavours to deliver the goods as specified by the Customer. The Carrier shall not be bound to deliver the goods except to the consignee shown on the consignment note or in the Carrier’s electronic gateway or to such other person(s) as may be authorised in writing by the Customer to receive the goods or to effect delivery in such other manner as specified by the Customer including an “authority to leave”(“ATL”).
5.2. If the Carrier is unable to deliver the goods for any reason (including failure on the part of a receiver to take delivery within a reasonable time) the Carrier shall be entitled to handle and store the goods at the Customer’s risk and in such manner as it may in its discretion determine and shall be entitled to make a reasonable charge in respect of such handling and/or storage and additional charges for each call until the delivery is accomplished.
5.3. All goods are handled on an ATL basis, unless otherwise agreed by the Carrier. If a receiver is not available to accept delivery of the goods, then the Carrier is authorised to leave the goods in a safe place or will leave a
failed delivery card with details of how to collect or reorganise delivery of the goods.
6. Responsibility for Charges
6.1. The Carrier’s charges are earned as soon as the goods are picked up or accepted for storage and the Customer must pay all charges, irrespective of whether the goods are delivered or not, and whether damaged or not, based on the tax invoice issued by the Carrier and in accordance with the trading terms agreed with the Carrier. The Customer shall pay to the Carrier all sums for the Services immediately when due without deduction or deferment on account of any claim, counterclaim or set-off.
6.2. All customs and/or excise duties, costs, fines or penalties, which the Carrier 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 shall be paid by the Customer. Further, the Customer agrees to indemnify the Carrier for any container demurrage, container detention and claims for container damage or container cleaning charges in respect of containers that carry the Goods.
6.3. It is the Customer’s responsibility to ensure all their goods are within the Carrier’s freight profile. Goods that are found to be outside of the Carrier’s freight profile may be refused at pickup, with the freight charge and a futile pickup fee applying. If the non-compliance is discovered once the goods are already within the Carrier’s network, then additional charges will apply and a delay in delivery may occur. If the goods are at any time reweighed or re-cubed, the Customer shall pay any additional freight, fuel surcharge, insurance, additional handing and other charges as determined by the Carrier. The Customer shall pay the higher of dead weight and cubic weight, based on a cubic allowance of 250kg per cubic metre, and rounded up to the nearest whole kilogram.
6.4. Accurate consignment data is due on the day of dispatch before goods are collected. All goods should be labelled with accurate pickup and delivery addresses unless otherwise agreed in writing by the Carrier. The Customer shall pay any charge for demurrage at the rate charged to the Carrier directly or indirectly by any railway or shipping authority or other person.
6.5. The Customer agrees to pay the Carrier administration, handling and merchant fees in respect of any processing involved in the conduct of the Customer’s account including but not limited to merchant or bank charges or other fees incurred as a result of payment by credit or charge card.
6.6. When the Carrier is instructed to collect freight, fuel, insurance and other charges or other expenses from any person other than the Customer, the Customer shall remain responsible for the amounts and shall pay these amounts to the Carrier on demand where these amounts have become due and have not been paid by such other person.
6.7. On all accounts overdue to the Carrier, the Carrier shall be entitled to charge interest calculated at 4% above the base rate of the Carrier’s bank calculated from the time such accounts became overdue. The Customer agrees that it will pay all costs, expenses and charges incurred by the Carrier due to any breach of the Conditions and all costs, expenses and charges associated with the recovery of any overdue or other amounts including but not limited to any mercantile agent’s costs, legal costs and disbursements on an indemnity basis.
6.8. The Carrier reserves the right to review its charges in circumstances where the cost of carriage increases due to circumstances outside of its control. Where charges are increased as a result, the Carrier will endeavour to provide the Customer with 7 days notice of the increase.
7. Carrier’s Liability
7.1. The goods shall at all times be at the risk of the Customer and the Carrier shall not be liable in tort (including negligence), contract (including a fundamental breach of contract) or for any act or omission of the Carrier that is outside the authorised scope of its activities under this contract, for breach of duty as bailee, for contravention of any statute or breach of statutory duty or otherwise for any loss of, or damage to, failure to deliver, delay in delivery of, or misdelivery of the goods whatsoever, howsoever caused.
7.2. The exclusion of liability in Clause 7.1 extends to include not only loss of or damage to the goods themselves, but loss, damage or injury to any person, property or thing damaged arising from the Carrier providing the Services under this contract and to any indirect or consequential loss or damage whatsoever arising from such loss, damage or injury or from failure to deliver, delay in delivery or misdelivery, howsoever caused including but not limited to losses that are purely financial or economic losses, loss of opportunity, losses in connection with contracts, agreements or understandings the Customer has with third parties, loss of market and any other losses whatsoever that do not arise directly from physical damage to or loss of the Goods and are consequential in nature.
7.3. Notwithstanding any other provision in these Conditions, but subject always to Clause 7.1 and Cause 7.2 if any liability whatsoever, howsoever arising, is found to attach to the Carrier or any subcontractor, the Carrier’s liability shall be limited in the case of Services supplied under this contract to the lesser of:
7.3.1. supplying the Services again
7.3.2. payment of the cost of supplying the Services again; or
7.3.3. the amount of A$100.00
7.4. for articles sent via International Priority Service: a maximum amount of the declared value of the article and shall not exceed the greater of US$ 25/kilogram up to US$100 or US$11.34/lb for articles transported by air or other non-road mode of transportation.
7.5. If any article is transported by air and involves an ultimate destination or stop in a country other than the country of shipment, the Carrier’s liability shall be governed by the Montreal Convention, or the Warsaw Convention as applicable. For international road transportation, the Convention for the International Carriage of Goods by Road (CMR) may apply. These conventions limit the Carrier’s liability for loss or damage.
7.6. The Carrier does not exclude or limit the application of any laws, including Schedule 2 of the Competition and Consumer Act 2010 (Cth), where to do so would contravene those laws or cause any part of these conditions to be void.
7.7. The Customer acknowledges that loss or damage are insurable risks and that obtaining insurance is the responsibility of the Customer and if they fail or choose not to do so it is at their risk. Where insurance is arranged by the Carrier at the request of the Customer it is done so by the Carrier as an authorised representative of licensed brokers and the contract of insurance so arranged will be between an insurer and the Customer, subject to the insurer’s terms and conditions. Customers acknowledge that they have read the Product Disclosure Statement and Financial Services Guide which can be obtained from the Carrier’s website and/or the insurer prior to arranging such insurance. The Customer acknowledges that under the contract of insurance the time for notifying the insurer of a loss may be different from the Carrier’s requirement under Clause 8.
8. Notice of Loss and Time Bar
8.1. Any claim for loss or damage to the goods or relating to the provision of the Services under this contract must be notified in writing to the Carrier within seven (7) days of delivery of the goods or the date by which the goods should have been delivered, whichever is the earlier. Should the Carrier not receive any such notice in writing the Carrier shall be forever discharged from any and all liability to any person (including the Customer) in respect of the goods and or the Services. In any event whatsoever, the Carrier shall be discharged from any and all liability whatsoever unless suit is brought within six (6) months of the provision of the Services, delivery of the goods or when the Services should have been provided or when the goods should have been delivered, whichever is the earlier.
9. Lien
9.1. If, on demand, the Customer fails to pay charges due to the Carrier in respect of any Services rendered by the Carrier, the Carrier will have a general and a particular lien over the goods and/or any other cargo or items the property of the Customer in the Carrier’s possession, and with seven (7) days notice to the Customer, may sell all or part of the goods and/or any other cargo or items that are the property of the Customer which are in the Carrier’s possession and out of the moneys arising from the sale retain the charges so payable together with all charges and expenses of the detention and sale, and shall render the surplus, if any, of the moneys arising from the sale and such of the goods as remain unsold to the person entitled thereto.
10. Dangerous Goods and Unacceptable Goods
10.1. The Customer or the authorised agent shall not tender for carriage any goods are or may be explosive, flammable or otherwise dangerous or damaging goods without presenting a full description of those goods and in default of so doing shall be liable for all loss and damage caused thereby.
10.2. The Carrier may at any time cause any dangerous goods or any goods which the Carrier believes are liable or may be liable to become dangerous goods to be destroyed, disposed of, abandoned or rendered harmless by the Carrier without compensation to the Customer and without prejudicing the Carrier’s right to any charges payable by the Customer to the Carrier.
10.3. The Carrier will not carry arms or ammunition.
10.4. Except under special arrangements previously made in writing the Carrier will not accept bullion, coins, precious stones, jewellery, valuables, antiques, mirrors and artwork, personal effects such as clothing, toiletries or electronic devices, vital documents such as tenders, birth certificates or travel papers, livestock or plants and the Carrier will not accept any liability whatever for any such goods except under special arrangements previously made in writing.
11. Subcontractors
11.1. The Carrier is hereby authorised to subcontract the whole or any part of the Services and such authorisation extends to any subcontractor.
11.2. Any clause herein excluding or limiting the liability of the Carrier or providing any right or exemption from liability to the Carrier shall also be available and shall extend to protect all subcontractors and every servant or agent of the Carrier and of any subcontractor. The Carrier 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.
11.3. The Customer undertakes that no claim will be made against any servant, subcontractor or agent of the Carrier which imposes or attempts to impose upon any of them any liability whatsoever in connection with the goods or Services under this contract. If any such claim should nevertheless be made, the Customer shall indemnify the Carrier against the consequences thereof.
12. Goods and Services Tax
12.1. Words and expressions used in this Clause 12.1 which have a defined meaning in the A New Tax System (Goods and Services Tax Act) (“GST Act”) have the same meaning in this clause as in the GST Act. Unless expressly stated otherwise, all consideration to be provided under this contract is expressed as exclusive of GST. If GST is payable by a supplier on any supply made under this contract, the recipient will, upon receiving a tax invoice from the supplier, pay to the supplier an amount equal to the GST payable on the supply.
13. Law and Jurisdiction
13.1. These Conditions shall be governed and construed in accordance with the laws of New South Wales and the parties submit to the non-exclusive jurisdiction of the Courts of New South Wales.
14. Privacy
14.1. The Carrier will collect, use and disclose a Customer’s personal or other information in accordance with its Privacy Policy as amended from time to time, details of which can be found on the Carrier’s Website.
15. Severability
15.1. If any provision of these Conditions is void, voidable by a party, unenforceable, invalid or illegal and would not be so if a word or words were omitted, then that word or those words are severed and if this cannot be done, the entire provision is to be severed from these Conditions without affecting the validity or enforceability of the remaining provisions of the Terms.