1.1 “Carrier” shall mean the Shipping Line as marked on the House Bill of Lading.
1.2 This is a Freight Logistics Pty Ltd House Bill of Lading and cannot get confused with a direct Liner Bill of Lading.
1.3 This House Bill of Lading has been issued at the request of the Shipper and cannot be used for finance purposes.
1.4 “Sub-Contractor” shall mean and include;
(a) Any other person, firm or Forwarder with whom the Forwarder may arrange for the carriage of any Goods the subject of the contract; or
(b) And any person who is now or hereafter a servant, agent, employee or sub-contractor of any of the persons referred to in clause 1.2(a).
1.5 “Consignor” shall mean the Consignor or any person or persons acting on behalf of and with the authority of the Consignor. Where more than one Consignor has entered into this agreement, the Consignors shall be jointly and severally liable for all payments of the Price.
1.6 “Guarantor” means that person (or persons), or entity who agrees herein to be liable for the debts of the Consignor if a Limited Liability Consignor on a principal debtor basis.
1.7 “Goods” shall mean cargo together with any container, packaging, or pallet(s) supplied by the Consignor to the Forwarder for the purposes of movement from one place to another by way of the Forwarder’s Services.
1.8 “Services” shall mean all services supplied by the Forwarder to the Consignor and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined supra).
1.9 “Price” shall mean the cost of the Goods or Services as agreed between the Forwarder and the Consignor subject to clause 4 of this contract.
1. Acceptance
2.1 Any instructions received by the Forwarder from the Consignor for the supply of Services shall constitute acceptance of the terms and conditions contained herein.
2.2 Upon acceptance of these terms and conditions by the Consignor the terms and conditions are irrevocable and can only be rescinded in accordance with these terms and conditions or with the written consent of the manager of the Forwarder.
2.3 None of the Forwarder’s agents, contractors or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the manager of the Forwarder in writing nor is the Forwarder bound by any such unauthorised statements.
2.4 These terms and conditions of contract are to be read in conjunction with the Forwarder’s consignment note, agreement, airway bills, manifests, or any other forms as provided by the Forwarder to the Consignor. If there are any inconsistencies between these documents, then the terms and conditions contained in this document shall prevail.
2. Services
3.1 The Services shall be as described on the invoices, consignment Note, airway bills, manifests, sales order or any other forms as provided by the Forwarder to the Consignor.
3. Price and Payment
4.1 At the Carrier’s sole discretion;
(a) The Price shall be as indicated on invoices provided by the Forwarder to the Consignor in respect of Services supplied; or
(b) The Price of the Services shall be the Forwarder’s quoted Price that shall be binding upon the Forwarder provided that the Consignor shall accept the Carrier’s quote within twenty-eight (28) days.
4.2 The Forwarder may by giving notice to the Consignor increase the Price of the Goods to reflect any increase in the cost to the Forwarder beyond the reasonable control of the Forwarder (including, without limitation, foreign exchange fluctuations, or increases in taxes or customs duties or insurance premiums or warehousing costs).
4.3 Time for payment for the Services shall be of the essence and will be stated on the invoice, consignment Note, airway bills, manifests or any other order forms. If no time is stated, then payment shall be on delivery of the Goods.
4.4 Payment will be made by cash, or by cheque, or by bank cheque, or by direct credit, or by any other method as agreed to between the Consignor and the Forwarder.
4.5 The Price shall be increased by the amount of any GST and other taxes and duties that may be applicable, except to the extent that such taxes are expressly included in any quotation given by the Forwarder.
4.6 If invoices are not paid within 30 days from the invoice date, an 8% interest rate is applicable.
5. Port to Port Shipment
5.1 Where the Carriage called for by this Agreement is a Port to Port Shipment, then
(a) the liability (if any) of the Forwarder for loss of or damage to the Goods occurring from and during loading onto any sea-going vessel up to and during discharge from that vessel or from another sea-going vessel into which the Goods shall have been transhipped shall be determined in accordance with any national law making the Hague Rules or the Hague Rules as amended by the Protocol signed at Brussels on 23rd February 1968 (Hague Visby Rules) compulsorily applicable in this Agreement (including the U.K. Carriage of Goods by Sea Act 1924, the Australian Sea Carriage of Goods Act 1924 and the New Zealand Sea Carriage of Goods Act 1940) or, if there be no such national law, in accordance with the Hague Rules contained in the International Convention for the unification of certain rules relating to Bills of Lading dated 25th August, 1924. All the terms of this Agreement (except clauses 6 to 10) shall apply to such Carriage, save that if any term in this Agreement is inconsistent with or repugnant to the Hague Rules or the Hague Visby Rules as the case may be it shall to the extent of such inconsistency or repugnance and no further be null and void. Notwithstanding the above, the Forwarder’s liability, if any, shall be limited to loss of or damage to the Goods occurring from and during loading on to any sea-going vessel up to and during discharge from that vessel.
(b) for the purpose of determining the extent of the Forwarder’s liability for loss of or damage to the Goods, the sound value of the Goods is agreed to be the invoice value plus freight and insurance if paid.
6. Combined Transport
6.1 Where the Carriage called for by this Agreement is Combined Transport then, save as is otherwise provided in this Agreement, the Forwarder shall be liable for loss or damage occurring during Carriage to the extent set out below.
7. Stage of Carriage Not Known
7.1 Where the stage of Carriage where the loss or damage occurred is not known the Forwarder shall be relieved of liability for any loss or damage if such loss or damage was caused by:
(a) an act or omission of the Consignor;
(b) insufficiency of or defective condition of packing or marking;
(c) handling, loading, stowage or unloading of the Goods by or on behalf of the Consignor;
(d) inherent vice of the Goods;
(e) strike, lock-out, stoppage or restraint of labour the consequences of which the Forwarder could not avoid by the exercise of reasonable diligence;
(f) a nuclear incident if the operator of a nuclear installation or a person acting for him is liable for this damage under an applicable international convention or national law governing liability in respect of nuclear energy;
(g) any cause or event which the Forwarder could not avoid and the consequence whereof he could not prevent by the exercise of reasonable diligence.
8. Burden of Proof
8.1 The burden of proving that the loss or damage was due to one or more of the causes or events specified in clauses 7 to 9 shall rest upon the Carrier. Save that, when the Carrier establishes that in the circumstances of the case, the loss or damage could be attributed to one or more of the causes or events specified in clauses 7.1(a) to (d), it shall be presumed that is was so caused. The Consignor shall, however, be entitled to prove that the loss or damage was not, in fact, caused either wholly or partly by one or more of these causes or events.
9. Compensation
9.1 Compensation shall be calculated by reference to the value of such Goods at the place and time when they are delivered to the Consignor or at the place and time when they should have been delivered.
9.2 The value of the Goods shall be determined according to the current commodity exchange price or, if there is no such price, according to the current market price or, if there is no commodity exchange price or current market price, by reference to the normal value of goods of the same kind and quality.
9.3 Except as provided in clause 14, compensation shall in no circumstances whatsoever and howsoever arising exceed U.S. $2.50 per kilo of the gross weight of the goods lost or damaged.
10. Stage of Carriage Known
10.1 Where the stage of Carriage where loss or damage occurred is known notwithstanding anything provided for in clauses 6 to 9 where it is known during which stage of Carriage the loss or damage occurred the liability of the Carrier in respect of such loss or damage shall be determined by the provisions contained in any international convention or national law, which provisions
(a) cannot be departed from by private contract to the detriment of the Consignor, and
(b) would have applied if the Consignor had made a separate and direct contract with the Carrier in respect of the particular stage of Carriage where the loss or damage occurred and received as evidence thereof any particular document which must be issued in order to make such international convention or national law applicable.
10.2 Provided that an international convention or national law will determine the Carrier’s liability as aforesaid only if it would have been applicable if the contract referred to in clause 10.1(b) were governed
(a) where the loss or damage occurred between the time that the Goods were received by the Carrier for Carriage and the time that the Goods were loaded at the port of loading by the internal law of the state of the place of receipt, or
(b) where the loss or damage occurred during carriage by sea by the internal law of the State of the final port of discharge, or
(c) where the loss or damage occurred between the time that the Goods were discharged at the final port of discharge and the time that the Goods were delivered to the Consignor by the internal law of the State of the place of delivery, or
(i) where no international convention or national law would apply by virtue, or
(ii) above by the Hague Rules contained in the International Convention for the unification of certain rules relating to Bills of Lading dated 25th August 1924, if the loss or damage is known to have occurred at sea or on inland waterways, or
4. by the provisions of clauses 7 & 8 in cases where the provisions of clauses Definitions
(iii) 10.2 (i) and (ii) do not apply.
10.3 Where under the provisions of clause 10 the liability of the Carrier shall be determined by the provisions of any international convention or national law, this liability shall be determined as though the Carrier were the carrier referred to in any such convention or national law.
10.4 References in clause 10 to the internal law of a State shall be deemed to exclude all principles of private international law applied by that State.
10.5 For the purposes of clause 10 references in the Hague Rules to carriage by sea shall be deemed to include references to carriage by inland waterways and the Hague rules shall be construed accordingly.
10.6 The Goods indicating the general nature of such loss or damage, shall have been given in writing to the Carrier or to his representative at the place of delivery before or at the time of removal of the Goods into the custody of the person entitled to delivery thereof under this Agreement, or, if the loss or damage is not apparent, within seven (7) consecutive days thereafter.
11. Time Bar
11.1 Subject to any provision of clause 16 to the contrary the Forwarder shall be discharged of all liability under this Agreement unless suit is brought and notice thereof given to the Forwarder within nine months after delivery of the Goods or the date when the Goods should have been delivered.
11.2 The Forwarder shall not be entitled to the benefit of the limitation of liability provided for in clause 9 if it is proved that the loss or damage resulted from an act or omission of the Forwarder done with intent to cause damage or recklessly and with knowledge that damage would probably result.
12. Delay
12.1 The Forwarder does not undertake that the Goods shall arrive at the port of discharge or place of delivery at any particular time or to meet any particular market or use and save as provided in clauses 10 and 11 above the Forwarder shall in no circumstances be liable for direct, indirect or consequential loss or damage caused by delay.
12.2 Where under the provisions of 10 and 11 above the Forwarder is liable for delay, liability shall be limited to the element of the freight applicable to the relevant stage of transport provided this is not contrary to the international convention or national law concerned.
13. Supply of Containers
13.1 The terms of this Agreement shall govern the responsibility of the Carrier in connection with or arising out of the supply of a Container to the Consignor, whether supplied before or after the Goods are received by the Carrier for Carriage or delivered to the Consignor.
14. Ad Valorem
14.1 Higher compensation may be claimed only when, with the consent of the Forwarder, the value of the Goods declared by the Consignor, which exceeds the limits laid down in this Clause, has been stated in this Agreement and extra freight paid if required. In that case the amount of the declared value shall be substituted for those limits. Any partial loss or damage shall be adjusted pro rata on the basis of such declared value.
15. Hague Rules Limitation
15.1 Subject to clause 14, whenever Hague Rules are applicable, otherwise then by national law, in determining the liability of the Forwarder, the liability shall in no event exceed £100 sterling per package or unit.
16. Scope of Application
16.1 Save as otherwise provided herein, the Forwarder shall in no circumstances whatsoever or howsoever arising be liable for direct or indirect or consequential loss or damage. The defences and limits of liability provided for in this Agreement shall apply in any action against the Forwarder for loss or damage or delay whether the action be founded in Contract or in Tort.
17. Consignor-Packed Containers
17.1 If a Container has not been stowed by or on behalf of the Forwarder
(a) the Forwarder shall not be liable for loss of or damage to the Goods caused by
(i) the manner in which the Container has been stowed; or
(ii) the unsuitability of the Goods for carriage in Containers; or
(iii) the unsuitability or defective condition of the Container provided that where the Container has been provided by or on behalf of the Forwarder this clause 17.1(a)(iii) shall only apply if the unsuitability or defective condition arose without any want of due diligence on the part of the Forwarder or would have been apparent upon reasonable inspection by the Consignor at or prior to the time when the Container was stowed.
(b) the Consignor shall indemnify the Forwarder against any loss, damage, liability or expense whatsoever and howsoever arising caused by one or more of the matters referred to in clause 17.1(a), save that where the loss, damage, liability or expense was caused by a matter referred to in clause 17.1(a)(iii) the Consignor shall not be liable to indemnify the Forwarder in respect thereof unless both the provisos referred to in that paragraph apply.
18. Inspection of Goods
18.1 The Forwarder or any person to whom the Forwarder has sub-contracted the Carriage or any person authorised by the Forwarder shall be entitled, but under no obligation, to open any Container or package at any time and to inspect the Goods.
19. Carriage Affected by Condition of Goods
19.1 If it appears at any time that the Goods or any part thereof cannot safely or properly be carried or carried further, either at all or without incurring any additional expense or taking any measure(s) in relation to the Container or the Goods or any part thereof, the Forwarder may without notice to the Consignor take any measure(s) and/or incur any reasonable additional expense to carry or to continue the Carriage thereof, and/or abandon the Carriage and/or stow the same shore or afloat under cover or in the open, at any place, which abandonment or storage shall be deemed to constitute due delivery under this Agreement. The Consignor shall indemnify the Forwarder against any reasonable additional expense so incurred.
20. Description of Goods
20.1 This Agreement shall be prima facie evidence of the receipt by the Forwarder in apparent good order and condition except as otherwise noted, of the total number of Containers, packages or other units or weight of other cargoes specified on the face hereof. Proof to the contrary shall not be admissible when this Agreement has been transferred to a third party acting in good faith.
20.2 Except as provided in clause 20.1, no representation is made by the Forwarder as to the weight, contents, measure, quantity, quality, description, condition, marks, numbers or value of Goods and the Forwarder shall be under no responsibility whatsoever in respect of such description or particulars.
21. Consignor’s Responsibility
21.1 The Consignor warrants to the Forwarder that the particulars relating to the Goods as set out overleaf have been checked by the Consignor on receipt of this Agreement and that such particulars and any other particulars furnished by or on behalf of the Consignor are correct.
21.2 The Consignor shall indemnify the Forwarder against all loss, damage, fines and expenses arising or resulting from inaccuracies in or inadequacy of such particulars or from any other cause in connection with the Goods for which the Forwarder is not responsible.
22. Carrier Not Common Forwarder
22.1 The Forwarder is not a Common Forwarder and will accept no liability as such. All articles are carried or transported and all storage and other services are performed by the Forwarder subject only to these conditions and the Forwarder reserves the right to refuse the carriage or transport of articles for any person corporation or Forwarder and the carriage or transport of any class of articles at its discretion.
23. Nomination of Sub-Contractor
23.1 The Consignor hereby authorises the Carrier (if it should think fit to do so) to arrange with a Sub-Contractor for the carriage of any Goods the subject of the contract. Any such arrangement shall be deemed to be ratified by the Consignor upon delivery of the said Goods to such Sub-Contractor, who shall thereupon be entitled to the full benefit of these terms and conditions to the same extent as the Carrier. In so far as it may be necessary to ensure that such Sub-Contractor shall be so entitled the Carrier shall be deemed to enter into this contract for its own benefit and also as agent for the Sub-Contractor.
24. Method of Transport
24.1 If the Consignor instructs the Forwarder to use a particular method of carriage whether by road, rail, sea or air the Forwarder will give priority to the method designated but if that method cannot conveniently be adopted by the Forwarder the Consignor shall be deemed to authorise him to carry or have the Goods carried by another method or methods.
25. Route Deviation
25.1 The Consignor shall be deemed to authorise any deviation from the usual route or manner of carriage of Goods that may in the absolute discretion of the Carrier be deemed reasonable or necessary in the circumstances.
26. Delivery
26.1 Delivery of the Goods shall be made to the Consignor’s address. The Consignor shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery, or delivery of the Goods shall be made to the Consignor at the Forwarders address.
26.2 Delivery of the Goods to a forwarder, either named by the Consignor or failing such naming to a carrier at the discretion of the Forwarder for the purpose of transmission to the Consignor, is deemed to be a delivery of the Goods to the Consignor.
26.3 The costs of carriage and any insurance which the Consignor reasonably directs the Forwarder to incur shall be reimbursed by the Consignor (without any set-off or other withholding whatever) and shall be due on the date for payment of the Price. The carrier shall be deemed to be the Consignor’s agent.
26.4 The Forwarder may deliver the Goods by separate instalments (in accordance with the agreed delivery schedule). Each separate instalment shall be invoiced and paid for in accordance with the provisions in this contract of sale.
26.5 Unless otherwise expressly agreed in writing no responsibility in tort or contract or otherwise will be accepted by the Forwarder for any loss of or damage to or deterioration of Goods or misdelivery or failure to deliver or delay in delivery of Goods including chilled, frozen refrigerated or perishable Goods either in transit or in storage for any reason whatsoever. The Forwarder is authorised to deliver the Goods at the address given to the Forwarder by the Consignor for that purpose and it is expressly agreed that the Forwarder shall be taken to have delivered the Goods in accordance with this contract if at that address he obtains from any person a receipt or signed delivery docket for the Goods.
26.6 The failure of the Forwarder to deliver shall not entitle either party to treat this contract as repudiated.
26.7 The Forwarder shall not be liable for any loss or damage whatever due to failure by the Forwarder to deliver the Goods (or any of them) promptly or at all.
27. Loss or Damage
27.1 The Forwarder shall be under no liability whatsoever unless;
(a) the consignor provides written notice to the Forwarder detailing the alleged damage, and that such written notice shall received by the Forwarder seven (7) days after the delivery of the Goods; or
(b) In the case where the Goods have been lost in transit then the Consignor shall be required to provide written notice detailing the alleged loss within fourteen (14) days of the date of dispatch of the Goods.
28. Strike Exemption
28.1 The Forwarder cannot accept liability for any costs or losses incurred by the Client as a direct result of any strike action whether on the part of the employees of Contractor, or any other organisation.
29. Insurance
26.1 Due to change in Government legislation which took effect as from 1st July 2003 no third parties are allowed to issue Cargo Marine Insurance as they are deemed to be providing you the consignor with advise.
26.2 What we the Forwarder are able to offer you the Consignor is the Insurance Company and or Brokers contact details where you will have the opportunity to negotiate with them directly. The insurance company will then ask you to fill out a proposal form and issue you with a disc whereby you will be able to issue your own certificates or alternatively have us the Forwarder issue them on your behalf along with the Agreement and any additional documentation that may be required as a value added service.
30. Charges Earned
30.1 The Forwarder’s charges shall be considered earned as soon as the Goods are loaded and despatched from the Consignor’s premises.
31. Demurrage
31.1 The Consignor will be and remain responsible to the Forwarder for all its proper charges incurred for any reason. A charge may be made by the Forwarder in respect of any delay in excess of thirty (30) minutes in loading or unloading occurring other than from the default of the Forwarder. Such permissible delay period shall commence upon the Forwarder reporting for loading or unloading. Labour to load or unload the vehicle shall be the responsibility and expense of the Consignor or Consignee.
32. Dangerous Goods
32.1 The Consignor or his authorised agent shall not tender for carriage any explosive, inflammable or otherwise dangerous Goods without presenting a full description of those Goods and in default of so doing shall be liable for all loss and damage cased thereby.
33. Consignment Note
33.1 It is agreed that the person delivering any Goods to the Forwarder for carriage or forwarding is authorised to sign the consignment note for the Consignor.
34. Consignors Responsibility
34.1 The Consignor expressly warrants with the Forwarder that the Consignor is either the owner or the authorised agent of the owner of any Goods or property the subject matter of this contract of cartage and by entering into this contract the Consignor accepts these conditions of contract for the Consignee as well as for all other persons on whose behalf the Consignor is acting.
35. Disclaimer
26.1 By entering into any agreement to which these conditions apply, the Consignor on his own behalf and as agent of the owner, sender and consignee agrees and further offers to limit the liability of all servants, employees and agents of the Forwarder in respect to the Goods and subject to the agreement to the extend that each such servant, employee and agent shall be protected by and entitled to the full benefit of all provisions in these conditions excluding or restricting tortuous liability of any kind;
(a) The offer hereinbefore referred to shall be accepted by the act of each such servant employee or agent in performing any function in relation to or affecting the Goods the subject of the agreement;
(b) For the purposes of the foregoing provisions of this clause the Forwarder is and shall be deemed to be acting as agent on behalf of the trustee for the benefit of all persons who are or become its servants, employees or agents from time to time and all such persons shall to this extent be and be deemed to be parties to the agreement concerned.
35.2 In addition to and without prejudice to the foregoing Conditions the Consignor undertakes that it shall in any event indemnify the Forwarder against all liabilities suffered or incurred by the Forwarder arising directly or indirectly from or in connection with the Consignor’s instructions or their implementation or the Goods, and in particular the Consignor shall indemnify the Forwarder in respect of any liability it may be under to any servant, agent or subcontractor, or any haulier, carrier, warehouseman, or other person whatsoever at any time involved with the Goods arising out of any claim made directly or indirectly against any such party by the Consignor or by any sender, consignee or owner of the Goods or by any person interested in the Goods or by any other person whatsoever.
36. Liability
36.1 The Forwarder shall be discharged of all liability unless suit is brought in the proper forum and written notice thereof received by the Forwarder within one (1) month after delivery of the Goods or the date when the Goods should have been delivered.
36.2 If a suit was to be brought against the insured, it should be brought against Freight Logistics Pty Ltd.
37. The Commonwealth Trade Practices Act 1974 and Fair Trading Acts
37.1 Nothing in this agreement is intended to have the affect of contracting out of any applicable provisions of the Fair Trading Acts in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
37.2 Liability of the Forwarder arising out of any one incident whether or not there has been any declaration of value of the Goods, for breach of warranty implied into these terms and conditions by the Trade Practices Act 1974 or howsoever arising, is limited to any of the following as determined by the Forwarder.
(a) The supplying of the services again; or
(b) The payment of the cost of having the services supplied again; or
(c) The lesser of AUD$200.00 for loss of or damage to any such Goods, packages or units or AUD$2.00 per kilogram or the gross weight for loss of or damage to any such Goods, packages or units or $20.00 per package or unit lost or damaged. For the purpose of this clause the word “package” shall include the contents even if particulars have been provided or incorporated in any document of the Forwarder.
38. Default & Consequences of Default
38.1 Interest on overdue invoices shall accrue from the date when payment becomes due daily until the date of payment at a rate of 2.5% per calendar month and shall accrue at such a rate after as well as before any judgement.
38.2 If the Consignor defaults in payment of any invoice when due, the Consignor shall indemnify the Carrier from and against all the Forwarder’s costs and disbursements including on a solicitor and own client basis and in addition all of EC Credit Control Pty Limited’s costs of collection.
38.3 Without prejudice to any other remedies the Forwarder may have, if at any time the Consignor is in breach of any obligation (including those relating to payment), the Forwarder may suspend or terminate the supply of Services to the Consignor and any of its other obligations under the terms and conditions. The Forwarder will not be liable to the Consignor for any loss or damage the Consignor suffers because the Forwarder exercised its rights under this clause.
38.4 All unpaid charges shall be paid in full and without any offset, counter claim or deduction, in the currency of the place of receipt of the Goods or at the Forwarder’s option, in the currency of the place of delivery at the TT selling rate in affect on the day of payment. If the date determined above falls on a day which banks are closed for business, the rate ruling on the next succeeding business day shall govern.
38.5 In the event that:
(a) any money payable to the Forwarder becomes overdue, or in the Forwarder’s opinion the Consignor will be unable to meet its payments as they fall due, Or;
(b) the Consignor becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors, Or;
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Consignor or any asset of the Consignor,
then without prejudice to the Consignor’s other remedies at law;
(i) the Forwarder shall be entitled to cancel all or any part of any order of the Consignor which remains unperformed in addition to and without prejudice to any other remedies; and
(ii) all amounts owing to the Forwarder shall, whether or not due for payment, immediately become payable.
39. Security and Charge
39.1 Notwithstanding anything to the contrary contained herein or any other rights which the Forwarder may have howsoever:
(a) Where the Consignor and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Consignor and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to the Forwarder or the Forwarder’s nominee to secure all amounts and other monetary obligations payable under the terms and conditions. The Consignor and/or the Guarantor acknowledge and agree that the Forwarder (or the Forwarder’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be released once all payments and other monetary obligations payable hereunder have been met.
(b) Should the Forwarder elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Consignor and/or Guarantor shall indemnify the Forwarder from and against all the Forwarder’s costs and disbursements including legal costs on a solicitor and own client basis.
(c) To give effect to the provisions of clause [39.1 (a) and (b)] inclusive hereof the Consignor and/or the Guarantor (if any) do hereby irrevocably nominate constitute and appoint the Forwarder or the Forwarder’s nominee, namely EC Credit Control Pty Limited as the Consignor’s and/or Guarantor’s true and lawful attorney to execute mortgages and charges (whether registerable or not) including such other terms and conditions as the Forwarder and/or EC Credit Control Pty Limited shall think fit in his/her/its/their absolute discretion against the joint and/or several interest of the Consignor and/or the Guarantor in any land, realty or asset in favour of the Forwarder and in the Consignor’s and/or Guarantor’s name as may be necessary to secure the said Consignor’s and/or Guarantor’s obligations and indebtedness to the Forwarder and further to do and perform all necessary and other acts including instituting any necessary legal proceedings, and further to execute all or any documents in the Forwarder’s absolute discretion which may be necessary or advantageous to give effect to the provisions of this clause.
40. Privacy Act 1988
40.1 The Consignor and/or the Guarantor/s agree for the Forwarder to obtain from a credit reporting agency a credit report containing personal credit information about the Consignor and Guarantor/s in relation to credit provided by the Forwarder.
40.2 The Consignor and/or the Guarantor/s agree that the Forwarder may exchange information about Consignor and Guarantor/s with those credit providers named in the Application for Credit account or named in a consumer credit report issued by a reporting agency for the following purposes:
(a) To assess an application by Consignor;
(b) To notify other credit providers of a default by the Consignor;
(c) To exchange information with other credit providers as to the status of this credit account, where the Consignor is in default with other credit providers; and
(d) To assess the credit worthiness of Consignor and/or Guarantor/s.
40.3 The Consignor consents to the Forwarder being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
40.4 The Consignor agrees that Personal Data provided may be used and retained by the Forwarder for the following purposes and for other purposes as shall be agreed between the Consignor and Forwarder or required by law from time to time:
(a) provision of Goods & Services;
(b) marketing of Goods and or Services by the Forwarder, its agents or distributors in relation to the Goods and Services;
(c) analysing, verifying and/or checking the Consignor’s credit, payment and/or status in relation to the provision of Goods or Services;
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by Consignor; and
(e) enabling the daily operation of Consignor’s account and/or the collection of amounts outstanding in the Consignor’s account in relation to the Goods and Services.
40.5 The Forwarder may give, information about the Consignor to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Consignor; and or
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Consignor.
41. Unpaid Forwarder’s Rights to Dispose of Goods
41.1 The Forwarder shall have a lien on the Goods and any documents relating to the Goods and/or any other Goods or cargo of the Consignor in the possession or control of the Forwarder and any documents relating to those other Goods or cargo for all sums payable by the Consignor to the Forwarder for that purpose and shall have the right to sell such Goods or cargo by public auction or private treaty without notice to the Consignor. The Forwarder shall be entitled to retain the sums due to it, in addition to the charges incurred in detention and sale of such Goods or cargo, from the proceeds of sale and shall render any surplus to the entitled person.
42. General
42.1 If any provision of these terms and conditions shall be invalid, void or illegal or unenforceable the validity existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
42.2 All Goods supplied by the Forwarder are subject to the laws of Victoria and the Forwarder takes no responsibility for changes in the law which affect the Goods supplied.
42.3 The Forwarder shall be under no liability whatever to the Consignor for any indirect loss and/or expense (including loss of profit) suffered by the Consignor arising out of a breach by the Forwarder of these terms and conditions.
42.4 In the event of any breach of this contract by the Forwarder the remedies of the Consignor shall be limited to damages. Under no circumstances shall the liability of the Forwarder exceed the Price of the Goods.
42.5 The Consignor shall not set off against the Price amounts due from the Forwarder.
42.6 The Forwarder reserves the right to review these terms and conditions at any time and from time to time. If, following any such review, there is to be any change in such terms and conditions, that change will take effect from the date on which the Forwarder notifies the Consignor of such change.
42.7 The Consignor authorizes the Forwarder and any Subcontractor to subcontract on any terms the whole or part of the provision of the Services.
42.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.