These Conditions apply to the provision of all Services by BGL to the Customer.
- Definitions
Agreement means these Conditions and the terms of any contract or agreement incorporating or subject to them;
Airfreight Convention means either:
(a) the Convention for the Unification of Certain Rules for International Carriage by Air signed at Montreal on 28 May 1999; or
(b) the Convention for the Unification of Certain Rules relating to International Carriage by Air, signed at Warsaw on 12 October 1929 either unamended or amended by the Hague Protocol 1955 at Guatemala City 1971, by the additional Protocol No 3 of Montreal 1975 and/or by the additional Protocol No. 4 of Montreal 1975; or
(c) any other convention relating to rights and liabilities concerning air carriage that is applicable to the provision of the Services or any part thereof by law,
whichever may be applicable;
AQIS means the Australian Quarantine Inspection Service;
ATD has the same meaning as ‘authority to deal’ as defined in section 4 of the Customs Act;
ATO means the Australian Taxation Office;
Australian Consumer Law means the Australian Consumer Law at Schedule 2 of the Competition and Consumer Act 2010 (Cth);
Authority means any government or government department, a governmental, semi‑governmental or judicial person or a person (whether autonomous or not) charged with the administration of any applicable law;
BGL means Bluestar Global Logistics AU Pty Ltd (ACN 662 413 158) of ‘2406’ 229 Toorak Road, South Yarra, VIC, 3141 and includes, in respect of any right or entitlement of Bluestar Global Logistics AU Pty Ltd under this Agreement, Bluestar Global Logistics AU Pty Ltd’s Personnel;
Business Day means a day that is not a Saturday or Sunday or public, special or bank holiday in Melbourne, Victoria or any place in which any relevant part of this Agreement is performed;
Business Practices means operating policies and procedures, human resource and contract management arrangements and arrangements for preventing or minimising public risks;
Carbon Costs means the net increased cost of providing the Services resulting from the coming into force of Carbon Legislation as a result of:
(a) direct emissions associated with the Services covered by Carbon Legislation, taking into account any Carbon Credits;
(b) indirect emissions from electricity generation taking into account any Carbon Credits; and
(c) indirect emissions from sources other than electricity;
Carbon Credit means assistance provided to entities engaged in emissions-intensive trade activities in the form of free or discounted allocation of carbon units or such other form of assistance as determined by the Commonwealth of Australia;
Carbon Legislation means the Clean Energy Act 2011 (Cth) and related legislation and any existing or future law or regulation or any other statutory requirement or action intended to regulate, reduce or tax greenhouse gas emissions, including any emissions trading scheme, carbon pollution reduction scheme or carbon emissions tax;
Carriage means carriage by vehicles and conveyances of all kind including acts in furtherance of an act of carriage by another or a specific means, whether by air, sea or land transport;
Carrier means any party involved in the carriage of Goods whether by airfreight, sea freight or land transport;
Charges means any and all amounts set by BGL and payable by the Customer in respect of or arising from the provision of the Services, as notified to the Customer in BGL’s quotation as calculated under BGL’s rate schedule (available upon request) or other agreed rates and as amended from time-to-time by agreement between BGL and the customer;
Claim includes any claim, notice, demand, costs (including legal costs and expenses), debts, dues, liabilities, damages, losses, taxes, duties, fees, suits, action, demands, proceeding, litigation or judgment, however it arises and whether pursuant to tort, contract, equity or legislation;
Collateral means all Goods and any documents relating thereto, all other present and after-acquired property of the Customer of any kind, and all proceeds relating to the same;
Conditions means these Terms and Conditions;
Consequential Loss means any special or pure economic loss, expense or damage, including loss of production, profit, use or opportunity, whether direct or indirect, suffered by a party or a third person as a result of any act or omission of a party arising from or in connection with this Agreement;
Container includes any container, flexitank, trailer, transportable tank, flat, pallet or any article of transport used to carry or consolidate the Goods and any equipment of or connected thereto;
Consumer Contract means a contract between BGL 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;
CoR Laws means any laws in relation to safety concerning the carriage of goods by road, including as to mass, dimension, load restraint, speed, fatigue and vehicle standards, roadworthiness and maintenance and including the HVNL;
Customer means the person with whom BGL agrees to provide the Services and includes, in respect of anything done or to be done by the Customer, the Customer’s Personnel;
Customs means the Australian Customs and Border Protection Service and includes, where applicable the Chief Executive Officer of the Australian Customs and Border Protection Service;
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;
Damage means any loss of, damage to, deterioration of, or misdelivery of, or non-delivery of, or delay in delivery of the Goods and any other loss or damage arising therefrom or in relation to this Agreement;
Dangerous Goods means any Goods which are dangerous, hazardous or damaging, including Goods which are or may become of a dangerous, inflammable, radio-active or of a damaging nature, Goods likely to harbour or encourage vermin or other pests and Goods the carriage, handling or storage of which is illegal, prohibited or otherwise regulated by any law or regulation of a State, Territory or the Commonwealth;
Dispute means any dispute or disagreement arising out of or in relation to this Agreement, including as to its formation, terms, performance, non-performance or breach, but does not include its termination or purported termination;
Excluded Interest means any of the interests set out in section 8 of the Personal Property Securities Act or any interest that is not a Security Interest but encumbers the Goods;
Force Majeure Event means any event, cause or occurrence outside a party’s control and not caused or contributed to by it and which is not able to be avoided or overcome by due diligence, including strike; lockout; labour dispute or shortage; interruption in the supply of essential services, utilities or infrastructure; trade dispute; fire; breakdown; flood; serious inclement weather; cyclone; natural disaster; earthquake; lightning; explosion; accident; road or rail closure; rail derailment; wharf delays; act or omission of air traffic control; act of god; act of war; act of public enemies; terrorist acts; sabotage; epidemic; quarantine restriction; riots and civil commotion;
Goods means any goods accepted from or on behalf of the Customer or its Personnel, together with any other goods, Containers, packaging or dunnage supplied by or on behalf of the Customer which are the subject of the Services;
GST has the same meaning as in the GST Act and includes any replacement or subsequent similar tax;
GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth);
HVNL means the Heavy Vehicle National Law and Regulations and any other laws of any State/Territory which give effect to any of them, Road Traffic (Administration) Act 2008 (WA) and Road Traffic (Vehicles) Act 2012 (WA) and any similar laws in any State/Territory and any replacement or modification of any of the foregoing;
Incidental Matters means anything done or to be done in relation to the Goods or the provision of any Services ancillary to the Goods including but not limited to moving, storing or leaving the Goods at any warehouse, terminal, yard, wharf or other place or area, loading or unloading the Goods from any vehicle, vessel or other conveyance, stowing or packing the Goods or fumigating, transhipping, inspecting or otherwise handling the Goods or anything done in relation thereto;
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 and including, without limitation all regulations, ordinances and directions made pursuant to the Laws and any successor Laws;
Licence means any Customs Broker’s Licence, Depot Licence, Warehouse Licence or any other licence issued by Customs or other Government Authority;
OHS Laws means any occupational health and safety legislation, regulations or guidelines, codes of conduct or policies of the Commonwealth of Australia or any of the States, Territories or Municipalities of Australia;
Person includes any person, firm, corporation, governmental authority or state or federal government;
Personnel means, in relation to a party, any of its officers, employees or agents;
PPS Act means the Personal Property Securities Act 2009 (Cth);
PPSR means the Personal Property Securities Register established under the PPS Act;
RSA means those State and Commonwealth Government Authorities in Australia responsible for road safety and the laws governing the carriage of Goods by road;
Service Agreement means:
(a) these Conditions;
(b) the Authority;
(c) any Customer credit application with the BGL; and
(d) any fee or charge quotation, estimate or agreement, standard operating procedures or shipment profiles,
as amended from time to time, regardless of whether the Customer is given notice of any amendment;
Services means any services to be supplied by BGL to the Customer in accordance with the terms of this Agreement, which may include but are not limited to supply chain solutions, warehousing and distribution, customs and quarantine processing and administration and transportation;
Sea freight Convention means either:
(a) the International Convention for the Unification of Certain Rules relating to Bills of Lading signed at Brussels on 25 August 1924, or those rules as amended by the Protocol signed at Brussels on 23 February 1968 (the Hague Visby Rules) and the SDR Protocol (1979); or
(c) any other convention relating to rights and liabilities concerning sea carriage that is applicable to the provision of the Services or any part thereof by law,
whichever may be applicable;
Shipping Contract means:
(a) a contract of marine salvage or towage; or
(b) a charterparty of a ship; or
(c) a contract for the carriage of goods by ship, which includes a reference to any contract covered by a sea carriage document within the meaning of the amended Hague Rules referred to in section 7(1) of the Carriage of Goods by Sea Act 1991 (Cth);
Subcontractor means, in relation to a party, any contractor, subcontractor, consultant or representative, at any level, engaged to perform all or any part of the Services on behalf of that party;
Taxable Supply has the meaning given to it in the GST Act;
Transport Activities has the meaning given to it in the HVNL;
Transport and Journey Documentation means any Transport Documentation or Journey Documentation as defined in the HVNL.
- Interpretation
In these Terms:
(a) words importing the singular will include the plural and vice versa and any word or expression defined in the singular has the corresponding meaning if used in the plural and vice versa;
(b) a reference to any act or statute or regulation will include a reference to any amendment, re-enactment or extension thereof or any statutory or regulatory provision that may be substituted from time to time;
(c) references to any deed, document, instrument or other writing will be deemed to include references tothe deed, instrument or other writing as varied or supplemented from time to time;
(d) where any party to the Agreement is comprised of more than one person or entity then those people orentities will be bound jointly and each of them will be bound severally by the terms of the Agreement;
(e) headings are for ease of reference and do not affect the interpretation of the Agreement;
(f) a reference to a party includes a reference to that party’s heirs, executors, administrators, successors and assigns;
(g) words importing natural persons include partnerships, bodies corporate, associations, governments and governmental and local authorities and agencies;
(h) a provision of the Agreement must not be construed to the disadvantage of any person merely because that person was responsible for the preparation of it or its inclusion in the Agreement.
- Application of terms
(a) These Conditions apply to the provision of all Services by BGL to the Customer, whether gratuitous or not. All agreements for provision of Services, whether implied, oral or in writing, are entered into by BGL subject to these Conditions, unless expressly excluded in writing by BGL.
(b) The Customer warrants that it is either the owner or authorised agent of the owner and any other person having any interest in the Goods and is authorised to and does accept these Conditions on behalf of all such persons. The breach of these Conditions by any such persons shall be deemed to be the breach of the Customer.
(c) Every exemption, limitation, defence, immunity, warranty, right of indemnity or other benefit contained in these Conditions to which BGL is entitled shall also be available and extend to protect and/or benefit all Personnel and Subcontractors of BGL and BGL enters into this Agreement as trustee for all such persons.
(d) No agent or employee of BGL has the authority to waive or vary these Conditions unless BGL approves such waiver or variation in writing. Any forbearance by BGL in enforcing the Conditions does not constitute a waiver. If BGL waives a breach of a Condition, the waiver does not operate as a waiver of another breach of the same or any other Condition or as a continuing waiver.
(e) Where there is an inconsistency between the conditions of the Service Agreement, the relevant documents shall be construed in the following descending order of priority:
(i) these Conditions;
(ii) the Authority;
(iii) any customer credit application;
(iv) any fee or charge quotation, estimate or agreement, standard operating procedures or shipment profiles.
(v) Despite clause 2(e), if BGL issues to the Customer any air waybill or sea carriage bill of lading identifying BGL as the Carrier, the terms of that BGL air waybill or bill of lading ‘shall prevail to the extent of any inconsistency with the Service Agreement.
- Provision of Services
4.1 General
(a) Subject to any mandatory law not able to be excluded, BGL will provide the Services in accordance with these Conditions.
(b) Where BGL carries on business as a Customs Broker under Part XI of the Customs Act or a freight forwarding or logistics agent for the Customer, all Services provided by BGL are governed solely by these 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 Conditions.
(c) BGL is not a common carrier and accepts no liability as such.
(d) To the extent that the performance of the Services requires carriage by air or sea, the Customer acknowledges that BGL does not itself perform or provide air or sea carriage, but will engage a Carrier to provide air or sea carriage as agent for the Customer and the Customer hereby authorises BGL to enter into contracts of carriage for air or sea carriage as agent for the Customer for the purposes of this clause.
(e) BGL may perform all or any part of the Services using one or more Subcontractors.
(f) No request for Services submitted by the Customer is deemed to be accepted by BGL unless and until confirmed in writing by an authorised representative of BGL. No order which has been accepted by BGL may be cancelled by the Customer. BGL reserves the right to accept or reject (in whole or in part), in its absolute discretion, any request for Services received by it from the Customer. BGL will not be liable for any Claim or Damage the Customer may suffer as a result of any acceptance or rejection.
(g) ‘BGL relies on the details supplied by the Customer, and cannot verify, and does not admit their accuracy or completeness, and signature by BGL is only an acknowledgement of the number of items received.
(h) The Customer agrees that:
(i) the value of the Goods shall not be declared or inserted in a Bill of Lading or a sea carriage document for the purpose of extending a ship or carrier’s liability under the Carriage of Goods by Sea Act 1991 (Cth) and Carriage of Goods by Sea ‘Regulations 1998 (Cth) except upon express instructions given in writing by the Customer;
(ii) in the case of Carriage by air, no option or declaration of value to increase air-carrier’s liability under:
(1) Article 22 of Schedule 1A to the Civil Aviation (Carrier’s Liability) Act 1959 (Cth); or
(2) Article 22(2) of Schedule 1, 2, 4 or 5 to the Civil Aviation (Carrier’s Liability) Act 1959 (Cth);
will be made except on express instruction given in writing by the Customer;
(i) in the case of Carriage by land, or any Carriage ancillary to the Carriage mentioned above and not expressly provided for under any contract within these Conditions, under Convention or under any statute or Law, the Customer agrees that the value of the Goods shall not be declared or inserted into a contractual document or as part of the trading terms for the purpose of extending the forwarder or Carrier’s liability under any circumstance except upon express conditions agreed to in writing by the Carrier or forwarder who expressly elect to waive that right;
(j) in all other cases where there is a choice of charges by Carriers, warehousemen, stevedores or others according to the extent of the liability assumed by the Carriers, warehousemen, stevedores or others, no declaration of value (where optional) will be made for the purpose of extending liability, and the Goods will be forwarded or dealt with at the Customer’s risk for minimum charges, unless express instructions in writing to the contrary are given by the Customer;
(k) BGL shall have no obligation to take any action in respect of any Goods that may be recognisable as belonging to the Customer unless it has received suitable instructions relating to such Goods together with all necessary documents. In particular, BGL shall not be obliged to notify the Customer of the existence or whereabouts of the Goods or to examine them or to take any other steps for their identification, protection or preservation or for the preservation of any claim by the Customer or any other party against the Carrier, insurer or any third party;
(l) all Goods moved by air are subject to volumetric conversion which can be subject to airline or agents conversion ratios. Goods moved by other means are subject to volumetric conversion on the basis of relevant industry standards or as modified by the Carrier’s standard trading conditions;
(m) BGL shall be under no obligation to make any declaration to, or to seek any special protection or cover from, the Department of Railways, railways authority or provider of railways in any State or any airline or road transport authority in respect of any Goods falling within the definition of that body:
(i) of dangerous or hazardous goods; or
(ii) of goods liable to be stored in the open,
unless written instructions to that effect are given to BGL by the Customer.
4.2 Liberties
(a) BGL shall be entitled to enter into contracts on behalf of itself or the Customer and without notice to the Customer:
(i) for the carriage of Goods by any route, means or person;
(ii) deviate from the usual route of carriage or place of storage;
(iii) consolidate the Goods with others and as principal or agent arrange for transport of the Goods by any sub-contractor on any terms;
(iv) for the carriage of Goods of any description, whether containerised or not, on or under the deck of any vessel;
(v) for the storage, packing, transhipment, loading, unloading or handling of Goods by any person at any place whether on shore or afloat and for any length of time;
(vi) for the carriage or storage of Goods in containers or with other goods of whatever nature;
(vii) for the performance of its own obligations, and to do such acts as BGL reasonably considers may be necessary or incidental to the performance of BGL’s obligations.
(b) If the Customer instructs BGL to use a particular method in the provision of the Services, BGL will give priority to that method, but may, at its absolute discretion and without incurring any additional liability to the Customer, provide the Services by any other method as it sees fit.
(c) BGL may at any time comply with any direction or order of any Authority, without incurring any additional liability to the Customer.
(d) BGL is entitled (but under no obligation) at any time and from time to time to inspect the Goods and, for this purpose and if any identifying document or mark with respect to Goods is lost, damaged, destroyed or defaced, BGL may open any Container, packaging or package in which the Goods are placed or carried to inspect them, either to determine their nature or condition or to determine their ownership or destination.
(e) If at any time BGL reasonably considers that the Services should not be undertaken or continued or only continued after effecting any necessary Incidental Matters or incurring additional expense or risk, BGL shall be entitled to:
(i) abandon the provision of any Services in respect of the Goods or to affect such additional Incidental Matters and incur such additional expense as may be reasonably necessary in order to enable the provision of any Services to be affected or further effected; and
(ii) be reimbursed by the Customer for the cost of all such additional Incidental Matters and all such additional expense incurred.
4.3 Special instructions
(a) Unless otherwise agreed in writing, BGL will not exchange any pallets with any person and the Customer must not transfer any pallets to any account BGL may have with a pallet hirer.
(b) BGL has the right to use any method for handling, storing or carrying the Goods. BGL will give priority to any instructions given by the Customer, but if such stated special instructions cannot be followed, BGL will use another method.
(c) BGL is not liable for, nor bound by, any instruction to collect cash on delivery or any other payments for any person.
(d) Unless BGL has agreed in writing that the Goods shall depart or arrive by a particular date or time, BGL accepts no responsibility or liability for departure or arrival dates of Goods and any such times notified by BGL are provided as estimates only and without any guarantee.
(e) Where BGL is instructed to provide a Container, in the absence of a written request to the contrary, BGL is not under an obligation to provide a Container of any particular type or quality and the Customer must satisfy itself that any such Container provided is suitable in all respects.
(f) The Customer must return any Containers provided by BGL or its Personnel clean and undamaged to a place or point of interchange nominated by BGL within any time prescribed by BGL, failing which the Customer is liable for any detention, loss or expense incurred as a result thereof, including but not limited to demurrage, container detention charges, the costs of replacement, transportation, cleaning and repair.
4.4 Dangerous, Perishable and Pillaged Goods
(a) Unless previously agreed in writing, the Customer must not and warrants that it will not tender or arrange for the provision of any Services in respect of or cause BGL to deal with or handle, Dangerous Goods unless a full description disclosing the dangerous, hazardous or damaging character of those goods is notified to BGL at the time of requesting or placing any order for any Services in respect of any such Goods.
(b) The Customer warrants that all information provided by it in relation to any Dangerous Goods is complete and correct.
(c) The Customer must provide the appropriate Dangerous Goods documentation at the point of pickup.
(d) The Customer is aware and agrees that delivery lead times can be varied due to mix of freight and volume of Dangerous Goods material to be transported on any given vehicle by BGL.
(e) The Customer accepts that a surcharge per consignment and/or per pallet will apply for the cartage of Dangerous Goods.
(f) BGL may return to the Customer or destroy, dispose or make harmless Goods tendered in breach of this clause or in breach of any law or regulation, without liability and at the Customer’s risk and expense.
(g) Irrespective of whether BGL has been informed that any Goods are Dangerous Goods, if BGL reasonably considers that the Goods may cause or pose a risk of injury or damage to any other goods, property, life or health, or are tendered in breach of this clause, BGL can do anything that it considers appropriate to avoid or reduce any such risk, including disposing of, rendering harmless, abandoning, returning to the Customer or destroying all or any part of the Goods, without notice or liability and at the Customer’s risk and expense.
(h) 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 BGL in effecting such sale or disposal shall be equivalent to delivery.
(i) If the Goods are landed from any vessel in a damaged or pillaged condition and an examination might be held or other action taken by BGL in respect thereof, no responsibility attaches to BGL for any failure to hold such examination or take such other action unless BGL has been given sufficient notice to enable it to arrange for such examination or for the taking of such other action as the case may be.
4.5 Delivery
(a) The Customer must accept or take delivery of the Goods at the conclusion of the provision of the Services or when requested to do so by BGL. If the Customer fails to accept or take delivery of the Goods, BGL shall be entitled to store the Goods in the open or under cover, without liability and at the Customer’s risk and expense.
(b) Where BGL is required to deliver the Goods:
(i) delivery will be deemed to be complete at the time that BGL obtains from any person at the place at which it is directed to deliver the Goods a receipt or signed delivery docket for the Goods;’
(ii) by rail to a place where BGL has no receiving depot, delivery occurs when the Goods are delivered to the nearest rail head at that place;
(iii) if the place at which BGL is directed to deliver the Goods is unattended, BGL can affect delivery by leaving the Goods at that place;’
(iv) if the place at which it is directed to deliver the Goods is unattended, BGL may (but is not obliged to) store and redeliver the Goods, and the Customer will indemnify BGL for all expenses incurred by storage and attempted or actual redelivery;
(v) If a consignment is refused at point of delivery and that delivery is unable to be made, for reasons beyond BGL’s control, and then the delivery will be returned to the delivery depot;
(vi) If the Customer requests BGL to deliver goods which BGL regards as unacceptable, BGL may contact the Customer to determine whether they wish to continue with the delivery or return the goods to the Customer. Any additional charges so incurred by BGL will be at the Customer’s expense. If BGL is unable to contact the Customer or the Customer does not accept liability for the additional charges, then BGL may dispose of the Goods at its discretion.
(c) Re-delivery of the consignment will be charged at the appropriate delivery rate plus a surcharge, charged on call. Futile pick-ups will also be charged if the vehicle booked space is booked and not cancelled.’ All rates are plus fuel and GST.
(d) Demurrage charges will apply in cases where drivers’ waiting time loading or unloading is more than 30 minutes.’ Charges for demurrage are charged on call dependent on truck type.
(e) When a consignment involving pallets requires the driver to unload the freight by hand due to the unavailability of a forklift, a surcharge per pallet will apply.
(f) Delivery of 12 or more loose items (cartons, rolls, etc.) on any one consignment and are charged cpk or m3rates will attract a hand unload charge.
(g) All deliveries must be to a physical street address and never to a PO Box.
(h) Normal delivery times are 8.00am to 5.00pm Monday to Friday. If the Customer requires a morning delivery on the next working day, or a delivery outside of these times, BGL will charge Taxi Truck rates as set out in clause 4.5(d), for minimum of 4 hours, starting and ending at BGL’s delivery depot. For after-hours deliveries, the goods must reach BGL’s delivery depot 24 hours before the scheduled delivery time, and this must be noted in the special instructions on the consignment note with a pre-alert by email or telephone 24 hours before the scheduled delivery time.
(i) Delivery to destinations involving transportation offshore (other than Tasmania) will be FOB.
(j) Tailgate service will incur an additional fee, charged on call, and must be booked 24 hours in advance. Maximum weight of 700kg and length of 2.1m applies to any item requiring a tailgate.
(k) Lengths over 2.4m will not be accepted.
(l) A surcharge per pallet, or part thereof, will apply to freight consigned to or from any trade related events.
(m) Time slot deliveries to DCs (delivery centre) that require bookings need to be made preferably from 5AM to 9AM and are usually pre-loaded on the appropriate vehicles the night before. All order numbers, timeslots and contact information need to be stated on the Special Instructions of the con-note. Freight for timeslot bookings must reach BGL’s depot in receiving state at least 24 hours (one working day) prior to the time slot.
(n) Delivery to sacred aboriginal sites such as Jabiru, NT and remote mining areas as classified by BGL’s on-forwarders will attract a delivery surcharge covering the surcharge as charged by the on-forwarder.
(o) Delivery to a home / private address or any area classified as ‘Out of Area’ or ‘Remote’ by BGL’s on-forwarders will attract an additional surcharge, should the receiver be unable to collect from the on-forwarders nearest depot.
(p) The express transit times are a guide only and may be exceeded, especially in the October to December peak period.
(q) All deliveries are delivered to ground floor, front door only.
(r) Deliveries to residential addresses (home deliveries) will not be accepted.
(s) A cube correction administration fee will be applied to all Customers when it has been identified that a Customer has incorrectly added the dimensions/cube of freight sent, as provided for in any fee quotation estimate or agreement.
(t) An account keeping fee will apply to all Customers with a spend less than $100,000 per annum, as provided for in any fee quotation estimate or agreement.
(u) A pre-alert fee will apply to all Customers to cover additional administration & co-ordination, as provided for in any fee quotation estimate or agreement.
(v) A DC (delivery centre) booking fee will apply to all accounts, to be charged per consignment, as provided for in any fee quotation estimate or agreement.
(w) A phone call charge will apply to all accounts opened, to be charged when this action is stipulated in special instructions, as provided for in any fee quotation estimate or agreement.
(x) Any invoice with a total amount less than $1,000 will incur an administration fee, as provided for in any fee quotation estimate or agreement.
(y) Any delivery consigned to a residential address in Northern Territory (NT) will incur an additional surcharge, as provided for in any fee quotation estimate or agreement.
(z) Any connotes submitted & invoiced through the EzySend system without freight being sent via BGL will incur an administration charge which will be deducted from the requested credit amount, as provided for in any fee quotation estimate or agreement.
(aa) Any awkward freight which cannot be double stacked will be charged up to the next pallet space.
(bb) No machinery will be accepted for transport.
(cc) Maximum individual freight height is 2.2m and maximum individual freight weight is 2,000kg. Exceeding this will result in freight being held at state depot for the BGL account holder to remove at their own cost. Storage charges will apply for any freight kept for more than 3 working days.
(dd) All furniture items must be flat packed or crated. Assembled furniture items will not be accepted. Freight will be held at state depot for the BGL account holder to remove at their own cost. Storage charges will apply for any freight kept for more than 3 working days.
4.6 Storage of Goods pending delivery
(a) Without limiting the effect of subclauses 4.1 to 4.5, pending forwarding and delivery, the Goods may be warehoused or otherwise held at any place or places at the sole discretion of BGL at the Customer’s risk and expense.
(b) In circumstances were BGL stores the Goods, BGL may, by notice in writing, require that the Customer remove the Goods for any reason whatsoever within seven (7) days from receipt of a notice delivered to the address which the Customer gave to BGL on delivery of the Goods. If the Customer fails to do so, BGL may remove the Goods and store them in such a manner and in such a place as BGL thinks appropriate at the Customer’s expense and risk.
(c) Where the Goods are stored by BGL for the Customer and they are uncollected for whatever reason they may be sold or returned at BGL’s option at any time after the expiration of twenty-one (21) days from a notice in writing sent to the Customer at the address which the Customer gave to BGL on delivery of the Goods. All costs, charges and expenses incurred by BGL 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.
- Payment
(a) The Customer, must pay BGL the Charges for the Services and for any other services provided by BGL.
(b) Unless otherwise stated on any BGL invoice, the Charges must be paid within fourteen (14) days after the invoice is issued to the Customer.
(c) Time for payment of all sums due to under any Service Agreement is of the essence and any breach of this term is deemed to be a material breach of these Conditions.
(d) Credit requests relating to rates which are submitted more than three (3) months from date of dispatch will not be reviewed.
(e) All Charges are deemed to be earned in full upon delivery or collection of the Goods to or by BGL and must be paid in full, without any deduction, withholding, counterclaim or set off.
(f) A fuel charge will apply to all invoices for carriage, movement and handling of freight, but not storage.
(g) The Customer agrees that with respect to and in addition to the Charges:
(i) it must pay freight by weight or measurement as BGL selects and at the rate set out in the Charges;
(ii) if the Goods are at any time re-weighed or re-measured and are found to be of greater weight or dimension than notified, the Customer must pay any proportional additional freight at the rate set out in the Charges;
(iii) it must pay any charge for demurrage at the rate charged by BGL;
(iv) it must pay any customs duty, excise duty or other amount assessed by any Authority in respect of the Goods, and must indemnify BGL in respect of any such amounts and any fine or penalty which BGL becomes liable for or pays with respect to the Goods or Services;
(v) it must pay to BGL all expenses and charges incurred by it to comply with any law or regulation or any order or requirement made under them or with the requirement of any market, harbour, dock, railway, airline, shipping, customs, excise or warehouse authority or other person specific to the carriage, movement or storage of the Goods;
(vi) if BGL require it, pay an additional charge at industry rates if the receiver is not present during normal trading hours (8.00am to 5.00pm Monday to Friday) or the time specified;
(vii) it will pay the cost, expense or loss to BGL of destroying or disposing of the goods under clause 4.4, opening and inspecting the goods under clause 4.2 or returning the goods under clause 12;
(viii) it will compensate BGL for any cost, expense or loss to BGL’s property or personnel caused by the Goods.
(h) If the Customer specifies that some other person will pay any Charge, the Customer remains responsible for the payment of those Charges. If that person fails to pay the Charges when due, the Customer must pay the Charges within seven (7) days of request by BGL.
(i) If any sum owing under these Conditions (including, without limitation, amounts payable pursuant to clause 9 or fees payable for Services provided by BGL) is not paid by the Customer when due, without limiting any other rights of BGL ,the Customer shall pay by way of liquidated damages interest on the amount outstanding at a rate 4% higher than the prevailing rate under the Penalty Interest Rates Act 1983 (Vic), until payment is made in full.
(j) BGL are entitled to retain and be paid all brokerages, commissions, allowances and remuneration paid including those customarily paid by or to customs agents, forwarding agents, forwarders, stores, carriers or bailers.
(k) BGL’s quoted rates are based on an agreed minimum net weekly average trading as stated on the quotation and may be withdrawn or subject to re-negotiation if the average weekly trade does not comply with the agreed trading figures. If any changes occur in the rates of freight, insurance premiums, warehousing, statutory fees or any other charges applicable to the Goods, quotations and charges are subject to revision accordingly with notice or, if it is not reasonably practicable, without notice to the Customer.
(l) Any BGL quote does not become effective until the original acceptance is received at BGL’s head office at 170 Hume Highway, Somerton, VIC, 3062 and is only valid for 28 days from the date of issue. Acceptance of BGL’s quotation will also constitute acceptance of any accompanying fee or charge quotation, estimate or agreement, standard operating procedures or shipment profiles provided by BGL.
(m) If, at any time before or whilst these Conditions are operative, Carbon Legislation is in force, imposed or varied, or the impact of Carbon Legislation varies, then the Customer is liable to pay BGL for any Carbon Costs (or increases in Carbon Costs) incurred by BGL.
(n) BGL shall under no circumstances be precluded from raising a debit in respect of any fee 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.
(o) The Customer agrees that payment is due by the date shown on the face of their invoice.
(p) BGL 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 BGL.
- Customer’s warranties and obligations
The Customer warrants that, as at the date of entering into this Agreement and the date of the provision of any of the Services:
(a) the Goods comply with all the applicable laws, customs and other requirements of any Authority;
(b) the performance of the Services according to any request or directions of the Customer will not cause BGL to be in breach of any laws;
(c) the description and all particulars of the Goods provided by the Customer are complete and correct;
(d) it will properly label and securely package and fully enclose the Goods before delivery to or collection by BGL in accordance with any requirements of BGL communicated to the Customer and in a manner that is both customary and sufficient to withstand the conditions that may reasonably be expected during the provision of the Services, unless previously agreed in writing that BGL will do so;
(e) it will return to the proper owner of any returnable Containers which were provided to BGL with the Goods, unless previously agreed in writing that BGL will do so;
(f) it is either the owner or authorised agent of the owner of the goods and it accepts these conditions for itself and the receiver as well as for any other person for whom it is acting;
(g) the person delivering the Goods to BGL is authorised to do so and to sign these conditions;
(h) it has completed BGL’s account application form and consignment note accurately;
(i) it will give all required and sufficient and executable instructions in relation to the Goods, both generally and immediately upon request by BGL;
(j) the Goods will not be subject to any inherent vice, wastage or deterioration;
(k) it has not allowed an Excluded Interest to exist over the Goods and an Excluded Interest does not exist over the Goods;
(l) the Services are not acquired for personal, domestic or household use or consumption;
(m) any Services requested, ordered or provided under this Agreement are for the purposes of a business, trade, profession or occupation carried on or engaged in by the person for whom the Services are provided;
(n) it will comply at all times with all OHS Laws in relation to the Service Agreement, the Goods and the Services, and will notify BGL of any issues or requirements under such laws in relation to the Service Agreement, the Goods or the Services of which BGL should be aware, or which may affect BGL’s ability to comply with the OHS Laws;
(o) it is and will remain solvent and able to and will pay all liabilities as and when they fall due; and
(p) The Customer acknowledges that a breach or failure to observe all or any of the warranties in clause 6 could lead to penalties or damages to the Customer and also to BGL and the Customer agrees to provide the indemnity to BGL on account of such penalties or damages pursuant to clause 9.
- Chain of Responsibility
(a) Without limiting any other provision of this Agreement, each party must at all times during the term and relating to the performance of this agreement warrant that it has and will:
(i) ensure, so far as reasonably practicable, the safety of its Transport Activities, within the meaning of the CoR Laws;
(ii) not do or require or refrain from doing or requiring anything which would directly or indirectly cause or encourage any person to breach any CoR Law; and
(iii) develop and implement suitable policies and working procedures (including training/education, compliance performance monitoring and reporting) to, so far as reasonably practicable, eliminate or, where not possible, minimise risks to the public arising from the conduct of its Transport Activities.
(b) The Customer must:
(i) comply with any compliance policy, working practices or reasonable direction of BGL in relation to compliance with the CoR Laws, which form part of this Agreement as if they were set out in full within it;
(ii) manage and retain copies of all Transport and Journey Documentation as required under the CoR Laws;
(iii) promptly advise BGL of any facts or circumstances which come to its attention which may give rise to any breach or allegation of breach of the CoR Laws, including without limitation any warning or caution, request for information or documents, infringement notice, fine or the commencement of prosecution proceedings by any regulatory Authority;
(iv) promptly make available all information or documentation reasonably requested by BGL for the purpose of monitoring or auditing compliance with the provisions of this clause, including Transport and Journey Documentation, vehicles and loads.
(c) In addition to any other right of BGL under and despite anything to the contrary contained in any other provision of this Agreement, in the event of any breach or suspected breach of the provisions of this clause by the Customer, BGL will be entitled, in its sole and absolute discretion, to:
(i) not provide any further Services to any person responsible for any breach;
(ii) suspend the performance of this Agreement (or any part of it) until such time as the breach is remedied to the reasonable satisfaction of BGL; and/or
(iii) terminate this Agreement with immediate effect by giving notice in writing to the Customer.
- Liability
(a) Without limiting the effect of clause 9 and subject to clause 8(g), to the full extent permitted by law, BGL its servants and agents shall not be liable in tort, contract, bailment, under statute or otherwise for loss, damage, deterioration, contamination, delay, mis-delivery or non-delivery of any kind whatsoever arising out of the provision of its Services to the Customer, including where caused by negligence by BGL, its servants or agents, and the Customer agrees to indemnify BGL in respect of any claims made by Sub-contractors or third parties concerning the provision of Services by BGL, and the following matters are expressly covered by this limitation of liability:
(i) any liability to pay amounts to Authorities (including, without limitation, customs duty or GST) that would not have otherwise been payable or any penalties (including penalties imposed directly on BGL, its servants or agents as a result of their reliance on incorrect information provided by the Customer, consignor or consignee of the Goods, or their respective agents whether imposed by court or Infringement Notice);
(ii) any liability concerning the making of any statement, forecast, information or giving advice in relation to the liability of the Customer to pay any amounts owing to any Authorities;
(iii) any liability in respect of the loss, misdelivery, deterioration, non-delivery, contamination, evaporation or damage to the Goods or consequential loss arising as a result however caused;
(iv) any loss or depreciation of market value attributable to delay in forwarding the Goods or failure to carry out instructions of the Customer;
(v) 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;
(vi) loss or damage resulting from fire, water, explosion or theft;
(vii) loss, damage or delay occasioned by examination of the Goods by any of the Authorities;
(viii) loss, damage or delay occasioned by treatment of the Goods by any of the Authorities (including without limitation, any fumigation or decontamination or other treatment by AQIS);
(ix) the possession of the third party Carrier where such Carriage was necessary in order to comply with the terms of the Service Agreement.
(b) BGL and the Customer acknowledge that Goods moving by airfreight are subject to the applicable Airfreight Convention. The Customer’s recovery of loss or damage suffered during the period of air carriage under any applicable Airfreight Convention, if any, is against the airline carrier and is in all circumstances in any event limited in accordance with the Airfreight Convention and the Customer hereby waives, releases and indemnifies and agrees to keep indemnified upon demand BGL in respect of any claim for any such loss or damage. In the event of any loss or damage suffered by the Customer during the period of air carriage, the Company will, upon request, seek to recover on behalf of the Customer from the principal airline carrier amounts payable under the aforementioned Conventions as they are applicable, provided that the Customer provides all required information, authority and documentation requested by BGL for such purpose.
(c) BGL and the Customer acknowledge that Goods moving by seafreight are subject to the applicable Seafreight Convention. The Customer’s recovery of loss or damage suffered during the period of sea carriage under any applicable Seafreight Convention, if any, is against the ocean carrier and is in all circumstances in any event limited in accordance with the Seafreight Convention and the Customer hereby waives, releases and indemnifies and agrees to keep indemnified upon demand BGL in respect of any claim for any such loss or damage. In the event of any loss or damage suffered by the Customer during the period of sea carriage, the Company will, upon request, seek to recover on behalf of the Customer from the ocean carrier amounts payable under the aforementioned Conventions as they are applicable, provided that the Customer provides all required information, authority and documentation requested by BGL for such purpose.
(d) BGL shall not be liable to the Customer for any breach or failure to performs its obligations under these Conditions or any damage or loss to Goods resulting from one of the following:
(i) perils, dangers and accidents of the sea or other navigable waters;
(ii) act of God;
(iii) act of war;
(iv) act of terrorism;
(v) act of public enemies;
(vi) arrest or restraint of princes, rulers or people, or seizure under legal process;
(vii) strikes or lock-outs or stoppage or restraint of labour from whatever cause, whether partial or general;
(viii) riots and civil commotions;
(ix) saving or attempting to save life or property at sea; or
(x) any other cause arising beyond the reasonable control of BGL, without the actual fault or privity of BGL and without the actual fault or privity of the agents or servants of BGL.
(e) If the occurrence of any event contemplated in clause 8(d) causes a delay of over five (5) Business Days in any obligation of BGL, 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 BGL prior to the termination or arising in connection with the disposal or return of the Goods shall be paid by the Customer.
(f) Any claim made against BGL, its servants or sub-agents is limited to the full extent permitted by Law. To the extent that the liability of BGL is limited by any Convention, statute, Law or contract, and that limitation exceeds the limitation of liability pursuant to these Conditions then the liability pursuant to that Convention, statute, Law or contract shall apply.
(g) If the Customer is not acquiring the Services wholly or predominately for personal, domestic or household use or consumption or where any other purported exclusion or limitation of liability under these Conditions is held by any competent court to be invalid, void or unenforceable, BGL’s liability to the Customer for a breach of any non-excludable warranty, condition, guarantee or where any such other purported exclusion or limitation is held to be invalid, void or unenforceable is limited, at BGL’s option, to supplying the Services again, or the cost of supplying the Services again.
- Indemnity
Without limiting the effect of these Conditions, the Customer agrees to indemnify and keep indemnified BGL for:
(a) any loss or damage directly or indirectly caused by the Goods or by breach of these Conditions by the Customer;
(b) amounts of Customs Duty, GST and other payments made to Authorities by BGL on behalf of the Customer;
(c) any penalties payable by BGL (whether pursuant to a court order or pursuant to an Infringement Notice) due to the Customer:
(i) providing information that is incorrect or misleading;
(ii) omitting to provide material information required to the Authorities;
(iii) providing information in a manner which does not enable BGL to comply with the requirements of the Authorities for reporting in prescribed periods; and/or
(iv) failing to provide information or documentation requested by BGL;
(v) penalties associated with the failure by the Customer to maintain or provide its documents or records in the manner and at the time contemplated by the Authorities;
(vi) penalties associated with providing misleading or deceptive information regarding the status of Goods, whether pursuant to the Competition and Consumer Act or other legislation;
(vii) penalties imposed by any RSA for any breach of the Laws governing the Carriage of goods by road;
(viii) damages payable by BGL from the failure of the Customer to return any container or transport equipment involved in the Services in the time required by the contract between BGL and the supplier or owner of that container or other transport equipment;
(ix) demurrage or other charge for detention or failure to return items provided by BGL pursuant to contracts with other parties;
(x) liabilities or costs incurred by BGL on behalf of the Customer associated with the Services including, without limitation, amounts paid to carriers of goods for the Carriage of Goods or cleaning of containers (whether Sub-Contractors or otherwise and amounts incurred by BGL in exercising its rights pursuant to these Conditions);
(xi) damages payable by the BGL arising from or contributed to by errors or misrepresentations by the Customer;
(xii) losses or damage incurred by the Company due to a breach by the Customer of any of the warranties in clause 6;
(xiii) all expenses directly or indirectly incurred arising out of or in connection with the entry of an officer of any Authorities or other authorised person on the premises of BGL for the purpose of exercising any powers pursuant to the requirements of any ‘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;
(xiv) any Customs Duty, GST or other charge assessed against BGL in relation to the Goods or Services;
(xv) any charges levied by Authorities for examination and treatment of the Goods;
(xvi) any costs or charges incurred by BGL as a result of or in connection with a direction or request from Customs in relation to the Goods or Services;
(xvii) any costs or charges incurred by BGL as a result of or in connection with a suspension or cancellation by Customs of an ATD in relation to the Goods or Services;
(xviii) any costs or charges incurred by BGL as a result of or in connection with any variation by Customs of conditions of Licences or the addition by Customs of new conditions on Licences in relation to the Goods or Services;
(xix) ‘any costs, charges or penalties incurred by BGL as a result of or in connection with any breaches of any Licences in relation to the Goods or Services;
(xx) any costs or charges incurred by BGL as a result of or in connection with any suspension or cancellation of Licences by Customs in relation to the Goods or Services;
(xxi) any costs or charges incurred by BGL as a result of or in connection with BGL complying with any conditions or Laws in respect of any Licences in relation to the Goods or Services;
(xxii) any costs or charges incurred by the BGL pursuant to clause 5; and any costs or charges incurred in recovering any amounts payable to BGL (including, without limitation, costs of legal proceedings).
(d) The Customer agrees to pay any amounts claimed pursuant to the indemnity in clause 9 within seven (7) days of demand by BGL.
(e) The nature of the indemnity provided pursuant to clause 9 will include, without limitation, all penalties, liabilities, all losses (including indirect and Consequential Loss) and damages assessed against BGL and its officers and employees, together with all legal costs incurred by BGL (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.
(f) BGL may execute all or any of its rights pursuant to clause 5 to recover any amounts owing pursuant to this clause 9.
(g) There is no need for BGL to suffer or incur any losses, costs, damages, liabilities, judgments, penalties or expenses before requiring payment from the Customer.
10. Notice of claims
(a) Any claim for loss of or damage or delay to any Goods or any other Claim or Damage whatsoever must be notified in writing to BGL within 72 hours of the earlier of the time of delivery or time at which delivery should have been made of the Goods lost, damaged or delayed. Failure to give any such notice is prima facie evidence of the satisfactory delivery of any Goods and performance of the Services.
(b) A proof of delivery document signed by the receiver is evidence that the goods were received in good order and condition.
(c) BGL shall be discharged from all liability whatsoever in respect of the Goods or otherwise arising under or in connection with this Agreement, unless suit is brought within one year of their delivery or of the date when they should have been delivered.
(d) The Customer warrants, on behalf of itself and the owner and any other person having any interest in the Goods, that it will not bring any Claim against any person (including the Personnel or Subcontractors of BGL) other than BGL which imposes or attempts to impose upon any such person, or any vessel owned by any such person, any liability whatsoever in connection with the Goods or the provision of the Services, whether or not arising out of negligence on the part of such person and, if any such claim or allegation should nevertheless be made, the Customer will indemnify BGL against all consequences thereof.
11. GST
(a) To the extent that a party makes a Taxable Supply under or in connection with this Agreement, the consideration payable by a party under or in connection with this Agreement represents the value of the Taxable Supply for which payment is to be made and on which GST is to be calculated.
(b) If a party makes a Taxable Supply under or in connection with this Agreement for a consideration, which represents its value, then the party liable to pay for the Taxable Supply must also pay at the same time and in the same manner as the value is otherwise payable, the amount of any GST payable in respect of the Taxable Supply.
(c) The right of a party to payment under this clause is subject to a Tax Invoice being issued and delivered by the supplier of the Taxable Supply to the recipient.
12. Lien
(a) BGL has a possessory lien over the Goods and any other property of the Customer or documents relating thereto in its actual or constructive possession or control from time to time with respect to any Charges or other sum due from the Customer to BGL under this or any other Agreement, including the exercise by BGL of any rights or remedies under this Agreement.
(b) BGL may sell the Goods by public auction or private treaty at the Customer’s risk and expense and apply the proceeds to pay any Charges or other sum due, after providing at least 15 days’ written notice to the Customer’s last known place of business or registered office of its intention to do so.
(c) In the event that any such sale proceeds are insufficient to pay all Charges or other sum due, BGL retains the right to recover any balance of unpaid Charges or other sum.
13. PPS
(a) The Customer grants to BGL a security interest in the Collateral to secure the payment of all Charges or other sum owing by the Customer from time to time to BGL and the performance of all the Customer’s obligations under this Agreement.
(b) The Customer acknowledges and agrees that this Agreement constitutes a security agreement for the purposes of the PPS Act and is in addition to any other contractual lien or lien arising under any law.
(c) The Customer acknowledges that BGL may, at the Customer’s cost, register or amend its security interest in the Collateral on the PPSR.
(d) The Customer undertakes, at its cost, to do all things that BGL may require from time to time to perfect, preserve, maintain or otherwise give full effect to the security interest in the Collateral.
(e) To the extent the law permits, BGL need not comply with and the Customer waives its right to receive any notice of any action or intended action under or otherwise required by any of the provisions referred to in sections 115(1) and (7) of the PPS Act; any provision of the PPS Act (including notice of a verification statement); any other law before a secured party exercises a right, power or remedy; and any time period that must otherwise lapse under any law before a secured party exercises a right, power or remedy.
14. Force Majeure
Without limiting the effect of clauses 8(d) and (e), If either party is prevented or delayed (directly or indirectly and in whole or part) from performing any obligation arising under this Agreement (other than the Customer making any payment to any person or taking delivery of any Goods) by reason of any Force Majeure Event, then that party’s obligations will be suspended and the time for their performance extended for the duration of such Force Majeure Event upon the affected party providing notice and particulars of the Force Majeure Event and its expected duration to the other party. If a party is prevented or delayed from performing any obligation by any such notified Force Majeure Event for more than five (5) business days, the other party may terminate this Agreement.
15. Insurance
BGL will not provide or procure insurance for or on behalf of the Customer in respect of the Goods or Services. The Customer must take out and maintain during and in respect of the Goods and the Services ‘insurance for loss, damage or delay to the Goods, any insurances required by law and any other insurances which are customarily and reasonably obtained by persons in the Customer’s position.
16. Termination
(a) BGL may terminate this Agreement at any time by giving the Customer 14 days’ notice in writing.
(b) Either party may terminate this Agreement immediately by written notice to the other party if the other party:
(i) is in default under the terms of this Agreement and does not remedy any such default (if capable of remedy) within 14 days’ notice requiring it to do so;
(ii) is in default of a term of this Agreement which is not capable of remedy; or
(iii) goes into liquidation or provisional liquidation, has an administrator or controller appointed to it or any of its property, fails to comply with a statutory demand, is unable to pay its debts or otherwise becomes insolvent.
(c) On termination or expiry of this Agreement the Customer must immediately pay all outstanding amounts due to BGL, whether or not time for payment has otherwise arisen.
(d) Termination pursuant to this clause does not affect any accrued right or obligation.
17. General
17.1 Entire Agreement
(a) Subject to any mandatory law unable to be excluded, this Agreement contains the entire understanding between the parties concerning the subject matter contained herein. Any previous representations, warranties, explanations and commitments, expressed or implied, affecting the subject matter (including any marketing or printed materials or website of BGL) are superseded by this document and have no effect.
(b) Subject to any mandatory law unable to be excluded, no warranty, guarantee, condition or representation is given by BGL in relation to the Services or any goods (including any Container) supplied by BGL for the performance of the Services and any express or implied warranty as to quality, fitness for purpose or otherwise is hereby excluded.
(c) Any terms and conditions of the Customer not expressly contained in this Agreement are not binding and have no effect, including without any limitation any terms contained in any request or order for Services, any purchase order, consignment note or receipt, whether issued before or after the commencement of this Agreement and regardless of BGL having been provided with notice of any such terms or accepted, surrendered or signed any document subject to or on which any such terms are printed.
(d) Each party warrants to the other that, in entering into this Agreement, it has not relied on any matter that is not expressly contained in this Agreement.
(e) The Customer acknowledges that they have had the opportunity to seek and obtain any desired legal advice in relation to this Agreement.
17.2 Notices
(a) A notice under this Agreement must be in writing and signed by or on behalf of the party giving it, addressed to the party to whom it is to be given and:
(i) delivered by hand to that party’s address;
(ii) sent by pre-paid mail to that party’s address; or
(iii) sent by email to that party’s email address.
(b) A notice given to a party in accordance with this clause is treated as having been given and received if:
(i) delivered by hand, on the day of delivery if a Business Day, otherwise on the next Business Day;
(ii) sent by pre-paid mail, on the fifth Business Day after posting; or
(iii) delivered by email, on the day that delivery is confirmed as having been made to the recipient’s server by any electronically generated delivery confirmation.
(c) For the purposes of this clause the addresses and email addresses of a party include their registered address and principal place of business and those which either party has given notice from time to time.
17.3 Dispute resolution
(a) If either party alleges that a Dispute has arisen, it may issue a notice of dispute providing particulars of the Dispute.
(b) Within fourteen (14) days of receipt of the notice of dispute, the parties shall confer at least once to attempt to resolve the Dispute or to agree on methods of resolving the Dispute by other means. At any such conference, each party shall be represented by a person having authority to agree to a resolution of the Dispute.
(c) If the dispute is not resolved within fourteen (14) days of receipt of the notice of dispute, or such further time as the parties mutually agree, the parties may thereafter take any action, including the commencement of legal proceedings, that they see fit.
17.4 Confidentiality – Each party must take all reasonable steps to ensure that information acquired from the other which is expressed to be confidential or that might be reasonably considered as commercially or politically sensitive, or not intended for public consumption, is kept confidential and is not disclosed to a third person without the written approval of the other party, except the necessary disclosure of relevant information:
(a) to Personnel or Subcontractors of a party legitimately engaged in or in connection with discharging a party’s obligations under the Agreement;
(b) to an institution from which a party is seeking to obtain or maintain financial accommodation;
(c) in compliance with any law of any jurisdiction or requirement of any Authority;
(d) in compliance with the order of a court;
(e) that is or has become public knowledge, otherwise than through breach by that party of this clause;
(f) that was in the possession of a party, other than through the operation of the Agreement, before being disclosed; and
(g) to assist lawfully in the enforcement of an entitlement under the Agreement.
17.5 Severance – Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction is ineffective to the extent of the prohibition or unenforceability only.’ That does not invalidate the remaining provisions of this Agreement nor affect the validity or enforceability of that provision, including in any other jurisdiction.
17.6 Survival – The obligations in this Agreement (to the maximum extent possible), survive expiry of this Agreement and are enforceable at any time at law or in equity.
17.7 Further Acts – The Customer must promptly do all further acts and execute and deliver all further documents required by law or reasonably requested by BGL to give effect to this Agreement.
17.8 Rights Cumulative – Except as expressly stated otherwise in this Agreement, the rights of a party under this Agreement are cumulative and are in addition to any other rights of that party.
17.9 Waiver – The non-exercise of or delay in exercising any power or right of a party does not operate as a waiver of that power or right, nor does any single exercise of a power or right preclude any other or further exercise of it or the exercise of any other power or right.’ A power or right may only be waived in writing, signed by the party to be bound by the waiver.
17.10 Amendment – This Agreement may only be amended in writing and signed by all parties.
17.11 Assignment – The Customer must not assign or deal with any right under this Agreement without the prior written consent of BGL and any purported dealing in breach of this clause is of no effect.
17.12 Law and jurisdiction – This Agreement is to be construed according to the laws of Victoria. The parties agree to submit any Dispute to the non-exclusive jurisdiction of the courts of Victoria and any courts that may hear appeals from those courts.
17.13 Guarantee – Undertaking and Indemnity by Directors and Shareholders
(a) 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 BGL against the Debts.
(b) For the purposes of clause 17.13(a), the Customer will ensure that its directors and shareholders will sign any other documents required by BGL to evidence and confirm any guarantee, undertaking and indemnity in the form annexed to these Conditions.
17.14 Intellectual Property –
The Customer acknowledges that BGL shall retain all copyright and other intellectual property in any documents or things created by BGL in the course of providing its Services pursuant to these Conditions.
17.15 Non-consumer provisions
(a) This clause 17.15 only applies where the Service Agreement between BGL and the Customer is not a Consumer Contract and/or is a Shipping Contract.
(b) The Customer must not assign the Customer’s rights or transfer the Customer’s obligations under the Service Agreement without BGL’s prior written consent. BGL may assign BGL’s rights and obligation under the Service Agreement without the Customer’s consent.
(c) No modification amendments or other variation of the Conditions shall be valid and binding on BGL unless made in writing and duly executed by and on behalf of BGL.
(d) BGL 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. That discretion will be varied only by instructions delivered by the Customer to BGL in writing and acknowledged by BGL in writing in sufficient time before the performance of any service to reasonably allow BGL to adopt the manner of performing the service required by the special instructions. BGL 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 BGL 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 BGL OR ITS SERVANTS OR AGENTS OR HOWEVER CAUSED.
(e) Any term in these Conditions which limits BGL’s liability will also extend and apply to any Sub-contractor, agent or nominee. For the purpose of this subclause, BGL is deemed to be acting as agent or trustee for BGL’s agents, employees, nominees and Subcontractors and each of those persons shall be deemed to be a party to these Conditions.
(f) The Customer undertakes that no claim or allegation will be made, whether by the Customer or any other person, against BGL’s agents, employees or Sub-contractors and if such claim or allegation is made for the consequence thereof 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.
(g) BGL shall be discharged from all liability whatsoever in connection with the Services and/or the Goods unless proceedings are served within nine (9) months from delivery of the Goods (or from when they should have been delivered).
(h) The indemnity provided in clause 9, 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 BGL, its servants or agents.
(i) 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 BGL) 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 BGL) against any loss and damage that may be suffered as a result of such claims.
(j) In all cases where these Conditions, statute, international Convention or otherwise do not exclude the liability of BGL, the liability of BGL 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 BGL or $200 (two hundred Australian dollars).
(k) BGL shall not be liable in any event for any Consequential Loss whether or not the Company had knowledge that such damage might be incurred.
17.16 Consumer provisions
(a) This clause 17.16 only applies where the Service Agreement between BGL and the Customer is a Consumer Contract and is not a Shipping Contract.
(b) Neither Party may assign the other Party’s rights or transfer its obligations under the Service Agreement without the other Party’s prior written consent, which must not be unreasonably withheld.
(c) No modification amendments or other variation of the Conditions shall be valid and binding on the Parties unless made in writing and duly executed by and on behalf of both Parties.
(d) BGL, 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. BGL 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 BGL 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.
(e) Where BGL accepts instructions to deliver on a cash on delivery basis pursuant to clause 4.3(c), BGL 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 DIRECTLY BY BGL OR BY NEGLIGENCE OR WILFUL DEFAULT BY BGL, ITS SERVANTS OR AGENTS.
(f) BGL shall not be liable in any event for any Consequential Loss unless the Company had knowledge that such damage might be incurred.
(g) Clause 8 will not apply to the extent that:
(i) BGL directly caused loss or damage; or
(ii) The loss or damage was caused by negligence or wilful default by BGL, its servants or agents.
