Version: 1st July 2017
1.1. “Agreement” means the agreement and these terms and conditions. It includes these terms, any covering letter, quotation, estimate and any other document that refers to these terms.
1.2. “Appointment Term” means the period of time from the date of the Agreement up to and including the date the Agreement is terminated.
1.3. “Authorised Officer” means a person who is the Owner, Director, Secretary or Manager.
1.4. “Claim” means any actual, contingent, present or future claim, demand, action, suit or proceeding for any Liability, restitution, equitable compensation, account, injunctive relief, specific performance or any other remedy of whatever nature and however arising, whether direct or indirect, and whether in contract, tort (including but not limited to negligence) or otherwise.
1.5. “Customer” means the customer set out in any quotation, fee estimate, offer or other document provided by WCT (or, in the absence of such information, the customer who placed the order).
1.6. “Credit” means WCT providing, or proposing to provide, in the course of business, credit to the Customer in relation to the acquisition of goods or services under the Agreement.
1.7. “Disbursements” means any charge incurred during the provision of the services which is not directly payable to WCT.
1.8. “Goods” means any goods associated with the provision of services including but not limited to containers, packaging, pallets or any other item as the context requires.
1.9. “Invoice” means a tax invoice pursuant to GST laws.
1.10. “Labour” means the physical work undertaken by WCT and its employees in the course of providing the services.
1.11. “Liability” means any loss, liability, cost, payment, damages, debt or expense (including but not limited to reasonable legal fees).
1.12. “Outstanding Debts” means all amounts unpaid by the Customer to WCT as payable under the Agreement and in accordance with the relevant terms herein.
1.13. “PPSA” means the Personal Property Securities Act 2009.
1.14. “Privacy Act” means Privacy Act 1988 (as amended by the Privacy Amended (Enhancing Privacy Protection) Act 2012).
1.15. “Price” means the price of the goods and services including but not limited to any other charges WCT is entitled to under the Agreement.
1.16. “Professional Fees” means fees directly payable to WCT for providing the Services and/or supplying the Goods.
1.17. “Security interest” means a security interest within the meaning of the Personal Property Securities Act 2009.
1.18. “Services” means the services in the Agreement and any associated services which may be required by the Customer.
1.19. “Supply” means the same as in GST laws.
1.20. “Third Party” means any 3rd party engaged to provide services outside the scope of WCT’ work. This may include but is not limited to; sub-contractors, agents, customs authorities, additional transport operators etc.
1.21. “Valuables” means a Good which is reasonably considered to be; bullion, precious stones, jewellery, antique, painting or other art.
1.22. “WCT” means Dewit & Hayes Pty Ltd ACN 095 223 288 trading as World Cargo Traders and any of their staff, agents or employees.
2.1. If the Customer is a corporation, the Customer warrants that its director(s) and/or company secretary will sign this Agreement pursuant to the requirements in section 1.5.7 of the Corporations Act 2001 (Cth) for signing documents on behalf of the Customer.
2.2. The Customer warrants that all of its directors will provide personal guarantees and indemnities to WCT in relation to the Customer’s obligations under the Agreement. Should a director fail to sign the guarantee, WCT reserves its right to cease providing services until the guarantee is executed.
3. TRUSTEE CAPACITY
3.1. If the Customer is the trustee of a trust (whether disclosed to WCT or not), the Customer warrants to WCT that:
3.1.1. the Customer enters into this Agreement in both its capacity as trustee and personal capacity;
3.1.2. the Customer has the right to be indemnified out of trust assets;
3.1.3. the Customer has the power under the trust Agreement to sign this Agreement; and
3.1.4. the Customer will not retire as trustee of the trust or appoint any new or additional trustee without advising WCT.
3.2. The Customer must give WCT a copy of the trust Agreement upon WCT’s request.
4.1. If the Customer is a partnership, the Customer warrants that all of its partners agree to and have signed this Agreement and that all of its partners will provide personal guarantees and indemnities to WCT in relation to the Customer’s obligations under the Agreement.
4.2. If the Customer is a partnership, it must not alter its partnership (for example, adding or removing partners or altering its partnership agreement) without first advising WCT. In the case of a change of partners, WCT may require new partners to sign a personal guarantee and indemnity.
5.1. The Customer is taken to have accepted and is immediately bound, jointly and severally, by the Agreement if the Customer (or its agent or employee);
5.1.1. orders the Services; or
5.1.2. accepts the provision of the Services.
5.2. These terms and conditions may only be amended with WCT’s written consent and shall prevail to the extent of any inconsistency with any other document or agreement.
6. FORMATION OF CONTRACT
6.1. Fee estimates made by WCT will not be construed as an offer or obligation to supply in accordance with the fee estimate. WCT reserves the right to accept or reject, at its discretion, any offer to purchase received by it.
6.2. A fee estimate is not a guarantee that the work will be completed for the price listed in the estimate. Unforeseen events may occur that mean the estimate will increase.
6.3. Placement of an order for Services, either verbally or in writing, will imply acceptance of WCT’s offer and of these terms and conditions.
7. NOT A COMMON CARRIER
7.1. WCT is not a common carrier and accepts no liability as such.
8.1. At WCT’s sole discretion the Price shall be:
8.1.1. as indicated on estimates/quotes provided by WCT to the Customer in respect of the Services.
8.2. WCT reserve the right to change the Price:
8.2.1. if a variation to the Services which are to be provided is requested;
8.2.2. if a variation to the Services originally ordered is requested;
8.2.3. in the event that the Customer has misrepresented the nature of the Services required to complete the job; or
8.2.4. in the event of increases to WCT’s cost of labour or other charges which are beyond WCT’s control.
9. PAYMENT TERMS
9.1. Professional Fees incurred for work completed by WCT will be invoiced to the Customer and payable strictly within fourteen (14) days of the date of the invoice unless they are the subject of the credit application.
9.2. Disbursement Fees incurred during the provision of the Services are payable immediately as they are invoiced or, where WCT has notified the Customer that a Disbursement Fee will be incurred shall be paid when requested.
9.3. WCT is entitled to retain and be paid for all brokerages, commissions, allowances and other remunerations customarily retained by or pay to shipping and forwarding agents and insurance brokers whether declared or otherwise.
9.4. Should the Customer not pay for the Services and/or Goods as and when they fall due, or as agreed in writing by WCT from time to time, WCT will be entitled to charge an administration fee of $120 (fixed).
9.5. Should the Customer wish to pay an invoice by way of Credit Card, a merchant fee will be charged for the use of Mastercard or Visa.
10.1. The Customer charges in favour of WCT all of its estate and interest in any real property that the Customer owns at present and in the future with the amount of its indebtedness until discharged.
10.2. The Customer charges in favour of WCT all of its estate and interest in any personal property that the Customer owns at present and in the future with the amount of its indebtedness until discharged.
10.3. The Customer appoints, as its duly constituted attorney, WCT’s company secretary from time to time to execute, in the Customer’s name, any real property mortgage, bill of sale or consent to any caveat which WCT may choose to lodge, against any real property that the Customer may own, in any Land Titles Office in any state or territory of Australia, even though the Customer may not have defaulted in carrying out its obligations hereunder.
10.4. Where the Customer has entered into a previous Agreement with WCT in which the Customer has granted a charge, mortgage or other security interest (including a security interest defined in PPSA) over or in respect of real or personal property, those charges, mortgages or other security interests and the terms which directly or indirectly create rights, powers or obligations in respect thereto will continue and co-exist with the obligations and security interests created in this Agreement and will secure all indebtedness and obligations of the Customer under this Agreement. WCT may, at its election, vary the terms of such previous charges, mortgages or other securities to reflect the terms herein.
10.5. WCT shall have a special and general lien on the goods and a right to sell the goods whether by public or private sale or auction without notice, for freight demurrage, detention charges, duty, fines, penalties, salvage or any other charge, whatsoever for any debt which is due and owing by the Customer. The lien shall extend to cover the costs and expenses of exercising the lien and such a sale including reasonable legal fees.
10.6. The lien referred to in clause 10.5 shall survive the delivery of the goods and WCT shall be entitled to retain the proceeds of sale of the goods in respect of any outstanding amounts previously referred to.
11.1. The Customer must pay for its own legal, accounting and business costs and all costs incurred by WCT relating to any default by the Customer. The Customer must also pay for all stamp duty and other taxes (if any) payable on this Agreement.
11.2. The Customer will pay WCT’s costs and disbursements incurred in pursuing any recovery action/or any other claim or remedy, against the Customer, including but not limited to; collection costs, debt recovery fees, commission and legal costs on an indemnity basis. Such costs, disbursements and commission will be due and payable by the Customer to WCT irrespective of whether the recovery action, claim or remedy is successful.
11.3. Subject to clause 11.2, payments by, or on behalf of, the Customer will be applied by WCT as follows:
11.3.1. firstly, in payment of any and all collection costs, debt recovery fees and commission and legal costs in accordance with clauses 11.1 and 11.2;
11.3.2. secondly, in payment of any interest incurred in accordance with clause 15; and
11.3.3. thirdly, in payment of the outstanding debt(s).
11.4. WCT may apply and allocate payments received by, or on behalf of, the Customer in a manner in WCT’s absolute and unfettered discretion, including so as to attribute the payments to satisfy obligations which are or are not secured by a purchase money security interest or otherwise.
11.5. To the extent that payments have been allocated to invoices by WCT in its business records, WCT may, in its sole and unfettered discretion, allocate and/or retrospectively reallocate payments in any manner whatsoever at any time whatsoever.
11.6. Payments allocated (and/or reallocated) under clause 11.5 will be treated as though they were allocated or reallocated, respectively, in the manner determined by WCT on the date of receipt of payment.
12.1. As WCT have limited their liability pursuant to clause 17, the Customer should seek to arrange its own insurance in the event that loss or damage were to occur during the provision of the Services.
12.2. Alternatively, the Customer may request in writing that WCT arrange insurance for the Customer as the Customers agent. WTC is under no obligation to advise the Customer or choose the terms of the cover and accepts no liability for doing so. Should the insurer dispute liability for any reason, the Customer shall have no recourse against WCT for acting as its agent.
13. TYPES OF GOODS
13.1. Unless otherwise agreed in writing, WCT will not accept; valuables, Dangerous Goods, Perishable Goods, Livestock, Plants or any other good that may be in breach of any law or customs regulation of the Origin and Destination.
13.2. Should the Customer breach clause 13.1, it will be liable to WCT for any and all loss, damage and expense WCT incurs in rectifying the breach.
14. TAXES AND DUTY
14.1. The Customer must pay GST on any taxable supply made by WCT to the Customer under this Agreement. The payment of GST is in addition to any other consideration payable by the Customer for a taxable supply.
14.2. If as a result of:
14.2.1. any legislation becoming applicable to the subject matter of this Agreement; or
14.2.2. any changes in legislation or its interpretation by a court of competent jurisdiction or by any authority charged with its administration, WCT becomes liable to pay tax, duty, excise or levy in respect of the amounts received from the Customer, then the Customer must pay WCT these additional amounts on demand.
15.1. Each of the following is an event of default, namely:
15.1.1. The Customer allowing any sum of money payable to WCT pursuant to this Agreement to remain unpaid one (1) clear day following the day upon which the amount became due and payable;
15.1.2. The Customer failing to punctually perform or observe any of the conditions or obligations imposed upon it by this Agreement and such failure remaining unresolved for a period of seven (7) clear days after the notice in writing is served upon the Customer by WCT specifying the default;
15.1.3. If WCT ascertains that the Customer has made any false, inaccurate or misleading statement having a material effect in relation to the making of the Agreement or any related or collateral document;
15.1.4. If the Customer is a company, upon the passing of a resolution for its winding up or the making of any order by any court for its winding up, the appointment of a controller, provisional liquidator, receiver, or receiver and manager, or voluntary administrator in respect of it or in respect of the whole or any part of its assets;
15.1.5. The levying of execution by any court against the Customer and such execution not being satisfied within fourteen (14) days;
15.1.6. If the Customer, or if the Customer is a company, any director of the Customer, being convicted upon indictment of a criminal offence or being sentenced to a term of imprisonment; or
15.1.7. If the Customer breaches any one or more of the terms or conditions of this Agreement.
15.2. A statement rendered by WCT to the Customer will be proof of the amount due
16. INTEREST RATES
16.1. Any amount not paid in accordance with the terms and conditions of this Agreement, will be subject to penalty interest pursuant to the provisions of the Penalty Interest Rates Act 1983 and Supreme Court Act 1986 or any act which supersedes either of those Acts until the total amount is paid in full.
17.1. All payments required to be made by the Customer under this Agreement will be made free of any set-off, or counterclaim and without deduction or withholding.
17.2. Any amount due to WCT from time to time may be deducted from any monies which may be or may become payable to the Customer by WCT.
18. LIABILITY AND INDEMNITY
18.1. The Customer agrees to indemnify WCT for any and all costs and disbursements incurred in pursuing any recovery action or any other claim or remedy, against the Customer, including collection costs, debt recovery fees, commission and legal costs on an indemnity basis. Such costs, disbursements and commission will be due and payable by the Customer to WCT irrespective of whether the pursuit of the recovery action, claim or remedy is successful.
18.2. The Customer agrees to indemnify WCT against all and any losses sustained by WCT as a result of any claim(s) or action(s) brought against WCT, whether those claim(s) or action(s) are by the Customer or by a third party, pursuant to any event arising from or as a result of the Agreement.
18.3. WCT shall not be liable for;
18.3.1. any loss caused to the Customer by reason of strikes, lockouts, fires, riots, war, embargoes, civil commotions, acts of God or any other activity beyond WCT’s control.
18.3.2. completing work or not completing work subject to the instructions provided by the Customer.
18.3.3. any loss suffered by the Customer due to the Customer’s failure to abide by the terms contained herein.
18.3.4. any delay in delivery, forwarding or transit or failure to deliver Goods, any deterioration, contamination, evaporation or any consequential loss or loss of market value howsoever it occurs.
18.4. In relation to the supply of services, WCT’ liability is limited to:
18.4.1. supplying the service again; or
18.4.2. providing for the cost of having the services supplied again at the amount of which is equal to or reasonably equivalent to the cost WCT would have incurred if supplying the services again.
18.5. WCT is not liable, whether claims are made or not, for loss of profit, economic or financial loss, damages, consequential loss, loss of opportunity or benefit, loss of a right or any other indirect loss suffered by the Customer.
19.1. The Customer agrees to accept service of any document required to be served, including any notice under the Agreement, the PPSA or court process, by prepaid post at any address nominated in this Agreement or any other address later notified to WCT by the Customer or its authorised representative.
20. PROVISION OF FURTHER INFORMATION
20.1. The Customer undertakes to comply with any request by WCT to provide further information for the purpose of assessing the Customer’s creditworthiness, including an updated credit application.
20.2. If the Customer is a corporation (with the exception of a publicly listed company), it must advise WCT of any alteration to its corporate structure or governance (for example a change in directors, shareholders, or constitution). In the case of a change of directors or shareholders WCT may require the new directors or shareholders to sign a guarantee and indemnity.
21. THIRD PARTIES
21.1. WCT shall, where reasonable, liaise with Third Parties, but shall not be responsible for their employment and payment.
21.1.1. WCT will not be held liable by the Customer for any work provided by a 3rd party.
21.1.2. The Customer shall be responsible for organising the transportation of the Goods between the Customer’s facility and the nominated facility of WCT.
21.1.3. Should there be a delay in the Services provided by a third party, the Customer agrees that additional charges may be incurred, including but not limited to; warehousing charges, additional transport charges, demurrage charges, wharf charges and detention charges.
22. WCT WARRANTIES TO THE CUSTOMER
22.1 WCT will ensure that all work is decent, lawful and truthful and does not infringe the rights of any third party or any legislation; and
23. OBLIGATIONS OF THE CUSTOMER
23.1. The Customer warrants that:
23.1.1. It is the owner of the Goods, or if it is not the owner, is the verified agent acting on behalf of the owner and has the necessary authority to enter this Agreement;
23.1.2. It will provide any and all information that WCT requires to provide the Services, this includes but is not limited to accurate descriptions of the goods, weights, values and any other information that is required by customs;
23.1.3. WCT is entitled to make decisions about the proposed route and any associated procedures with the provision of the Services;
23.1.4. The Goods are sufficiently packed, prepared or stored unless the Customer has specifically engaged WCT in writing to ensure same.
23.1.5. It authorises WCT to make payments on its behalf and it will pay any and all disbursements. professional fees, duties, taxes, imposts, charges or any other outlays howsoever they may arise due to the provision of the Services.
23.1.6. Where necessary, suitable facilities and equipment for the transport and storage of the Goods will be provided.
23.1.7. WCT is able to assign the Agreement should it be deemed necessary.
24.1. A waiver of any provision or breach of this Agreement by WCT must be made by an authorised officer of WCT in writing. A waiver of any provision or breach of this Agreement by the Customer must be made by the Customer’s authorised officer in writing.
25. CANCELLATION/TERMINATION OF AGREEMENT
25.1. Upon cancellation of the Agreement, with or without notice, all liabilities incurred by the Customer become immediately due and payable to WCT.
25.2. The Agreement may be terminated for any reason by either party at any time by giving seven (7) days written notice;
25.3. Upon termination of the Agreement and for any reason, WCT will cease all activity provided there are no amounts receivable on account due to WCT, shall promptly provide to the Customer all work produced and provided to WCT by the Customer in connection with this Agreement.
26.1. The Customer agrees that these terms and conditions may be varied, added to, or amended by an authorised officer of WCT at any time by written notice to the Customer.
26.2. Any proposed variation to these terms and conditions by the Customer must be requested in writing. WCT may refuse any such request without providing reasons either orally or in writing.
26.3. Variations requested by the Customer will only be binding upon WCT if they are accepted in writing.
27.1. If any provision of this Agreement is not enforceable in accordance with its terms, other provisions which are self-sustaining are, and continue to be, enforceable in accordance with their terms.
27.2. If any part of this agreement is invalid or unenforceable, that part is deleted and the remainder of the Agreement remains effective.
28.1. If the Customer becomes insolvent, the Customer remains liable under this Agreement for payment of all liabilities incurred hereunder. The Customer remains liable under this Agreement even if WCT receives a dividend or payment as a result of the Customer being insolvent.
29.1. The Customer acknowledges and agrees that this Agreement will be governed by the laws of Queensland, and the laws of the Commonwealth of Australia which are in force in Queensland.
29.2. The Customer acknowledges and agrees that any contract for the provision of services between WCT and the Customer is formed at the address of WCT.
29.3. The parties to this Agreement submit to the exclusive jurisdiction of the courts of Queensland and the relevant federal courts and courts competent to hear appeals from those courts.
30. ENTIRE AGREEMENT
30.1. This Agreement constitutes the entire Agreement between the parties relating in any way to its subject matter. All previous negotiations, understandings, representations, warranties, memoranda or commitments about the subject matter of this Agreement are merged in this Agreement and are of no further effect. No oral explanation or information provided by a party to another effects the meaning or interpretation of this Agreement or constitutes any collateral Agreement, warranty or understanding.
30.2. Notwithstanding the preceding paragraph, in circumstances where there is a pre-existing written agreement (Original Agreement) between the Customer and WCT, these terms and this Agreement will constitute a variation of the Original Agreement whereby the terms of the Original Agreement are deleted and replaced with the terms herein, unless the terms of the Original Agreement are otherwise expressly or implicitly preserved by the terms herein in which case they will co-exist with the terms herein, and, to the extent of any inconsistency, these terms will prevail.
30.3. Nothing in this Agreement shall be read or applied so as to purport to exclude, restrict or modify or have the effect of excluding, restricting or modifying the Agreement in relation to the provision of services pursuant to this Agreement of all or any of the provisions of the Competition and Consumer Act 2010 or any relevant State or Federal Legislation which by law cannot be excluded, restricted or modified.
31. PRIVACY ACT
31.1. The Customer agrees to the terms of the Privacy Statement pursuant to the Privacy Act 1988 as amended by the Privacy Amendment (Enhancing Privacy Protection) Act 2012 contained in this document.