SAANICH & CO PTY LTD (ACN 637 044 190) Trading As Ess Eye Transport & Logistics

By instructing the Company to supply the Services, the Customer agrees to accept and be bound by the Company’s trading terms and conditions. All and any business undertaken by the Company shall be subject to the Company’s trading terms and conditions of contract which are as follows:

1. Definitions

“Administration Charge” means an amount that it calculated on any Outstanding Amount at the rate of five percent (5%) per calendar month compounded monthly.

“CCA” means the Australian Competition & Consumer Act 2010.

“Company”  means Saanich & Co Pty Ltd trading as Ess Eye Transport & Logistics (ABN 53 564 103 967), its employees, servants, agents, subsidiaries and/or associated entities.

“Contract” means this Agreement for the carriage of goods as agreed between the Company and the Customer;

“Customer”  means the shipper (consignor), the receiver (consignee), the owner of the Goods, the bailor of the Goods or the person for whom any of the Services are arranged and/or performed.

“Dangerous goods” means such of the Goods as shall be, or become, in fact or at law noxious, dangerous, hazardous, explosive, radioactive, inflammable or capable by their nature of causing damage or injury to other goods, persons, plants or animals or to any thing including that in which the Goods are carried, handled or stored.

“Goods” means the chattels, articles or things tendered for by the Customer for the Services and shall include the container(s), unit load device(s) or other packaging containing the same and any other pallet(s) delivered with the same to the Company or Subcontractor by the Customer or for or on its behalf.

“Perishable goods” means such of the Goods as shall be in fact or law liable to deteriorate in quality and/or value and shall include, but not be limited to, fruits, vegetables, dairy products, meat, etc.

“PPSA” means Personal Property Securities Act 2009.

“Outstanding Amount” means any amount that remains unpaid upon the expiry of the credit terms extended by the company or any amount for which the customer is otherwise liable pursuant to these conditions.

“Services” means the carriage, transport, movement, packing, handling, storage/warehousing,  and/or any other service arranged or performed by the Company, pursuant to, or ancillary to, this contract with the Customer.

 “Subcontractor” means and include any person, firm or company (other than the Company) that arranges or performs the Services (or a part thereof).

“Valuables” means bullion, coins, precious stones, jewellery, antiques, or works of art.

Words importing the singular include the plural and vice versa and words importing any gender include all genders and words importing a person include firm, corporation or other entity where appropriate.

2. Company’s Capacity

The Company and Customer agree that:

a) the Company acts as agent only in arranging the Services (or a part thereof) except in circumstances where:

i) it performs the Services (or a part thereof);
ii) it expressly agrees/undertakes in writing to act as principal or
iii) where a Court holds it to be principal.

b) without limiting the generality of 2(a), the Company acts as agent when an air, road or sea carrier issues an air waybill, consignment note or sea carriage document for the designated carriage in that document naming the Customer or its agent (excluding the Company) as shipper and/or consignee in said document.

c) without limiting the generality of 2(a), the Company’s supply of a container or equipment as part of the Services is not evidence in itself that the Company acts as a principal.

3. Not a Common Carrier/Entire Agreement 

The Company is not a common carrier and accepts no liability as such. Services are arranged, undertaken and/or performed by the Company subject only to these conditions of contract which constitute the entire agreement between the Company and the Customer. No person has the authority of the Company to waive or vary these conditions and the Company reserves the right to refuse at its sole discretion the arranging, undertaking or performing of any of the Services for any customer whether before, during or after the Service has commenced and further reserves the right to open and/or inspect all Goods at its discretion and at the Customer’s expense. 

4. Contracts with Third Parties

As agent or principal pursuant to clause 2(a) herein, the Customer hereby employs and authorises the Company to contract either in its own name or in the Customer’s name with any Subcontractor, and authorises any Subcontractor to contract the services of any other Subcontractor, for the performance of any of the Services agreed to be arranged or performed pursuant to, or ancillary to, this contract. Any such contract may be made on any terms of contract whatsoever used by the Subcontractor with whom the Company or Subcontractor may contract for such Service(s) including in every case terms which may limit or exclude liability in respect of the Service. In any event, the Company shall be entitled to the full benefits of all privileges, right and immunities available to any Subcontractor under such contract or compulsorily applicable law in respect of the Services provided.  Any Subcontractor’s terms are available from the Company on request.

5. Prevention of Suit/Circular Indemnity and Himalaya

The Customer undertakes that no claim or allegation shall be made against the Company’s employees, servants, agents, Subcontractors (including the Subcontractors’ employees and agents) or other person who may be vicariously liable for the acts or omissions of such parties which imposes or attempts to impose upon any such party any liability whatsoever in connection with the Goods whether or not arising out of negligence on the part of such party. If any such claim or allegation should nevertheless be made, the Customer will indemnify the Company against all consequences thereof. Without prejudice to the foregoing, every such party shall have the benefit of all provisions herein benefiting the Company as if such provisions were expressly for its benefit, and in entering into this contract, the Company, to the extent of these provisions, does so not only on its own behalf, but also as agent and trustee for such parties.

6. Insurance

The Company warrants that it holds public liability insurance in the amount of Twenty Million Dollars ($20,000,000.00) for the benefit of its Directors, Employees and Subcontractors.

7. Warranties by the Customer

The Customer warrants:

a) that it is the owner of the Goods or otherwise has the authority of the owner or person having an interest in the Goods or any part thereof to sign the Company’s Letter of Instruction, other contractual document or otherwise accept and consign the goods upon and subject to these conditions. 

b) that the person releasing or delivering the Goods to the Company is authorised to sign the Company’s Letter of Instruction, other contractual document and/or otherwise accept and agree to these conditions on the Customer’s behalf. 

c) the adequacy of packing, stowing and suitability of the Goods for the Services contracted and accuracy of all markings and brandings of the Goods, descriptions, values and other particulars furnished to the Company for the carriage, customs, consular and any other purposes and undertakes to indemnify the Company against all loss, damage, expenses and fines arising from any inadequacy, unsuitability, inaccuracy or omission in this respect.

d) that it will sign an inventory of the Goods as prepared and presented by the Company. If it signs the inventory, or does not do so and fails to object to its accuracy within 7 days of receiving it from the Company, the inventory will be conclusive evidence of the Goods received by the Company. The Company will record only visible items in the inventory unless the Customer requires the Company to also list the contents for which the Customer will pay additional reasonable charges to the Company.

e) that the performance of any Service provided or arranged by the Company to effect the instructions of the Customer in respect of the Goods shall not be in breach of any law.

8. Loading and Unloading on and from Transportation Vehicle

a) Unless otherwise agreed, the Customer shall be responsible for the cost of, and arranging for the loading and unloading of the Goods on and from the relevant transportation vehicle.

b) In the event that there is a delay in the loading or unloading of the Goods by reason other than the default of the Company or Subcontractor, the Customer shall be liable for the Company’s expenses incurred by reason of the delay, including demurrage costs as notified by the Company orally or in writing from time to time or available upon request. We confirm that:

i) where goods are being transported by air freight the first thirty (30) minutes of loading or unloading are free; and

ii) where goods are being transported by sea freight the first sixty (60) minutes of loading or unloading are free.

c) The Customer shall provide adequate and suitable facilities and equipment for loading and unloading the Goods from the relevant transportation vehicle, unless otherwise arranged with the Company. The Customer also warrants that the Goods will be suitable for carriage in such vehicle.

d) The Customer has the right to inspect the transportation vehicle before the loading of the Goods.  Absent any inspection and complaint, the transportation vehicle will be deemed to be in adequate and suitable condition for the carriage of the Goods. Thereafter, the Customer shall have no rights against the Company with respect to the condition of the vehicle and the Company will have no liability in respect of any loss or damage caused by the inadequate or unsound condition of the vehicle.

e) As provided in our Chain of Responsibility document all Company vehicles are roadworthy and up to date service records are maintained for each vehicle.

9. Storage/Warehousing

a) When presented for storage, the Customer will ensure that the Goods are securely and properly packed in compliance with any statutory requirements and recognised standards and in such condition so as to not cause damage or injury, or the likelihood of damage or injury, to the property of the Company or to any other goods, whether by spreading of damp, infestation, leakage or the escape of fumes or substances or howsoever caused.

b) Before presentation of Goods for storage, the Customer will inform the Company in writing of any special precautions necessitated by the nature, weight or condition of the Goods.

c) If the Customer instructs the Company to use a particular method of storage, the Company will give priority to that method but if the Company cannot conveniently adopt it, the Company may use any method of storage and will inform the Customer of any variation in the method of storage prior to the execution of this Contract. Should the variation in method of storage occur due to an emergency situation then the Customer will be informed as soon as practically possible.

d) If any identifying document or mark is lost, damaged, destroyed or defaced, the Company may open any document, wrapping, package or other container in which the Goods are placed or carried to inspect them either to determine their nature or condition or to determine their ownership.

e) The Goods may at any time be stored or otherwise held at any place or at any time be removed from any place at which they may be stored or otherwise held to any other place to be stored or otherwise held at the sole discretion of the Company.  In every case, whether storage is incidental or the primary Service provided by the Company, it will be provided at the Customer’s risk and expense as a primary charge(s) or a charge(s) incidental to or in connection with the carriage of the Goods or any Service hereunder.

10. Termination

a) The Customer or Company may terminate the agreement at any time after the minimum storage period of 2 months by giving not less than 14 days notice to the other.

b) If the Customer is in breach of this agreement, the Company must give the Customer not less than 7 days notice to rectify the breach.  If the Customer fails to do so, the Company may immediately terminate the agreement on notice to the Customer.

c) Should the Company terminate the agreement, the Customer shall: 

i) pay all fees owing within 7 days – including 2 weeks storage fees in respect of stored Goods which the Customer agrees is a reasonable sum to cover the Company’s loss for the period of storage lost while the Goods are removed and the Company finds another customer to fill the Customer’s space; and

ii) remove its Goods from storage or pay the Company to deliver the Goods to a designated destination within 3 days of paying all fees in (i) above, failing which the Company will consider the Goods abandoned which the Company may sell or dispose of pursuant to the Sale and Disposal of Goods Clause of this agreement.

11. Customer’s Indemnity

a) The Customer shall indemnify the Company as a result of the carriage or storage of the Customer’s goods and in respect of any claim, loss, damage, payment, fine, expense, duty, tax, impost, outlay, cost or other liability incurred by the Company:

i) howsoever caused or incurred, whether arising directly or indirectly from any Service arranged or performed by the Company and/or;

ii) as a result of any breach of the terms, conditions or warranties in this contract by the Customer.

b) Without limiting the generality of the foregoing, the Customer shall remain responsible to the Company for all charges (C.O.D. or otherwise) paid by the Company to any of its agents, Subcontractors or any other party or Government Authority.

c) The Customer shall indemnify the Company in respect of any loss or damage arising from any inherent defect, quality or vice of the Goods.

12. Quotations

Quotations for the Services are made on an immediate acceptance basis and are subject to withdrawal or revision without notice at the Company’s discretion. Charges may be referred and prices quoted or displayed on the Company’s website for information.  These are estimates only.  These may change depending on any additional service or charges/fees incurred as will be advised by the Company to the Customer and will be payable by the Customer.  Goods will be inspected/reweighed/remeasured to determine the chargeable weight/quantum. If this weight/quantum is more than that amount originally charged to the Customer, the Customer will be recharged based on the correct weight/quantum for which the Customer will be liable.

13. Inspection and/or Release of Goods/Information

The Customer authorises the Company in effecting the Services, but with no obligation on the part of the Company, to allow inspection and/or release of the Goods or any information and/or documents of the Customer, the Goods, the Services or relating thereto as required by government authorities and the Customer shall indemnity the Company in respect of any disbursement, expense, cost, loss, fine or damage incurred by the Company in doing so and releases the Company from any liability in connection therewith.

14. Responsibility for Fees/Charges

a) The Customer shall pay the Company for all fees rendered and any charges it incurs for any reason in respect of the Services performed. This includes the payment of fees/charges which the Company is advised or agrees will be paid by a third party which then fails to so pay. Such fees/charges shall be deemed fully earned as soon as the Goods are loaded and dispatched from the Customer’s premises, otherwise delivered by the Customer to the Company or Subcontractor or on receipt of the Company’s invoice whichever occurs first.  Fees and charges shall be payable in accordance with the terms provided in the Company’s invoice and/or the Company statement or if not stated, will be payable on delivery. All fees and charges are non-refundable.

b) The Customer agrees that it shall not defer or withhold payment or deduct any amount from the account of the Company by reason of any claim it alleges against the Company.

c) The Customer shall pay the Company administration fees of five percent (5%) per annum on overdue fees of charges invoiced. Provision of Credit by the Company to the Customer may be suspended by the Company at its own discretion if fees and charges invoiced are overdue or otherwise. 

15. Routes and Procedures

If the Company is instructed by the Customer and agrees to use a particular method or type of Service, the Company shall give due consideration to the method or type designated but shall at all times have the right to choose or vary such method or type of Service or route and procedure adopted in respect of the Service performed. The Customer hereby authorises the Company to substitute alternate carriers or Service providers without notice to the Customer.

16. Registration/Personal Properties Security Act – Storage at Company Warehouses

a) Subjects to discussion between the Customer and the Company, the Customer agrees to:

i) sign any documents or provide further documents or information required by the Company to register a security interest with the Personal Property Securities Register.

ii) indemnify the Company for all expenses incurred in attending to the steps outlined in (i) above and releasing any interests from the Register.

iii) not register a financing change statement in respect of a security interest without prior written consent by the Company.

iv) not register, nor permit to be registered, a financing statement or a financing change statement in relation to the Goods in favour of a third party without the prior written consent of the Company. 

b) The Company and Customer agree that sections 96, 117 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.

c) The Customer hereby waives its rights to receive notices or statements under sections 95, 118, 121(4),123, 130, 132(3)(d), 132(4), 135 and 157 of the PPSA.

d) The Customer waives its rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.

17. Valuables, Dangerous Goods

a)  

i) Provided that the required formal contract has been entered into between the Customer and the Company Valuables and/or Dangerous goods will be accepted for the provision of services arranged or performed by the Company..  Should the Customer nevertheless deliver any such goods to the Company or cause the Company or Subcontractors to handle or deal with any such goods otherwise than as agreed in writing, the Customer (not the Company) shall be liable for any loss, damage or cost thereto or consequent thereon whether direct, indirect or consequential and howsoever caused and the Customer shall indemnify the Company from and against all penalties, taxes, duties, claims, demands, damages, costs and expenses arising in connection therewith.

ii) Any such goods may be destroyed in the sole and absolute discretion of the Company or any other person in whose custody they may be at the relevant time. In the event that the goods are destroyed or otherwise dealt with as aforesaid, the Company shall bear no liability and the Customer shall indemnify the Company from and against all costs and expenses with respect thereto.

b) The Customer undertakes that any of the goods referred to in (a) above (including their covering, packaging, containers and other carriage devices) shall be distinctly marked having regard to their nature. The Customer further undertakes that the Goods are packed in a manner adequate to withstand the ordinary risks of any Service having regard to their nature and in compliance with all laws and regulations which may be applicable with respect to any Service. The Customer shall indemnify the Company against all claims, losses, damages or expenses arising in consequence of any breach of this provision.

c) The Customer’s compliance with (b) above in no way reduces or limits those rights afforded to the Company under (a) of this clause.

18. Delivery/Completion

a) The Company is authorised to deliver the Goods to the consignee or its agent at the address nominated to the Company by either the Customer, the consignor, the consignee or their agents and it is expressly agreed that the Company shall be deemed to have delivered the Goods in accordance with this contract if it or relevant Subcontractor obtains a receipt, signed delivery docket for the Goods or signature on its consignment note from any person at that address.

b) If the nominated place of delivery shall be unattended or if delivery cannot otherwise be effected, the Company in its sole discretion may at its option either deposit the Goods at the nominated place or store the Goods at the risk and expense of the Customer, both of which will be deemed to be delivery of the Goods under this Contract.

c) Dates and time specified or requested for completion of carriage or any other Service are estimates only and the Company shall not be liable for failure to complete carriage or any other Service on such date(s) or time(s).

19. Sale and Disposal of Goods

a) The Company and its Subcontractors shall be entitled at the cost and expense of the Customer, subject to any compliance with any applicable law, to sell or dispose of:

i) Goods which in the opinion of the Company or Subcontractor cannot be delivered by reason of the Goods being insufficiently or incorrectly addressed or by reason of the Goods not being collected or accepted by the Consignee/Customers or for any other reason; and

ii) any Perishable goods which in the opinion of the Company or the Subcontractor appear to be deteriorating, if the Customer fails to adequately instruct the Company with respect thereto or fails to pay any costs and expenses necessary to implement the Customer’s instructions.

b) If the Goods are sold pursuant to Clause (a) above, the Company can use the proceeds of sale to discharge any fees and charges owed by the Customer, including the costs of sale. Any balance of any proceeds remaining following such discharge will be remitted to the Customer.

20. Regulation Compliance

The Customer shall exercise all reasonable care and comply with all applicable laws, Government regulations/directions and industry standards including those relating to the packing, carriage, storage, customs clearance, delivery, inspection or other Services in respect of the Goods, and shall provide such information and documents as may be necessary to exercise such care and comply with such laws, regulations and standards. The Company shall not be liable to the Customer or any other party for loss or expense due to the Customer’s failure to comply with this provision and the Customer will indemnify the Company for any expense, damage or liability incurred by the Company in so complying.

21. Dispute Resolution Process

If any dispute arises in connection with this Agreement, the following must be completed prior to the party requiring it to be resolved (Disputing Party) commencing proceedings in a court of competent jurisdiction (unless requiring urgent or injunctive relief):

a) the Disputing Party must promptly give the other party written notice which provides sufficient details of the dispute (Dispute Notice);

b) within 10 business days of receiving a Dispute Notice the relevant managers of the parties must attempt to resolve the dispute via negotiation;

c) if the managers cannot resolve the dispute via negotiation (or a party refuses to participate in the process outlined above) then either party (or the compliant party, if a party refuses to participate in the process outlined above) shall be entitled to commence proceedings in a court of competent jurisdiction. 

22. Miscellaneous

a) The Services, whether the Goods are delivered or not, shall be subject to this Agreement and shall be governed by the laws of Victoria.

b) Any proceedings against the Carrier must be commenced in a court of competent jurisdiction within Victoria, and not elsewhere, within nine (9) months from the date of delivery, or intended delivery, of the Goods. The Client shall not be entitled to bring any proceedings against the Carrier which are not commenced within such time.

c) The Carrier shall not be bound by any agreement purporting to vary this Agreement unless such agreement is in writing and signed by an authorised representative of the Carrier.

d) Should this Agreement apply in full or part to the cost of air carriage, it is agreed that the transportation to the airport of departure and from the airport of arrival does not constitute part of the contract of air carriage. As far as the Carrier takes over the arrangement of performance of such services, this is done under a separate contract which is subject to this Agreement and (to the extent only to which this Agreement does not or cannot exclude or modify the operation of any applicable legislation) to that legislation.

e) This Agreement, and in particular and without limiting the generality hereof the limitations and exclusions of the Carrier’s liability herein contained, shall continue to apply and to be of full force and effect in all circumstances notwithstanding any breach or alleged breach by the Carrier of this Agreement and in particular (but without limitation of the generality hereof), notwithstanding any departure by the Carrier from this Agreement whether by way of deviation or otherwise howsoever.

f) If one or more provisions of this Agreement are invalid or unenforceable, they will be severed and the remaining provisions of this Agreement will continue to apply in full force and effect.

g) This Agreement may be subject to change from time to time. 

23. Law and Jurisdiction

a) Any dispute arising under this Contract shall be governed by the laws of Victoria and shall be determined exclusively by the courts of Victoria or by the court of the Company’s choice.

b) A reference to any law includes a statutory modification, substitution or re-enactment of it.

24. Representations

By signing the letter of instruction or otherwise accepting these conditions, the Customer agrees that it did not rely on any representation, promise, warranty or condition of the Company or its Subcontractor not expressly made (in writing) part of this contract.

25. Severance & Waiver

It is hereby agreed that if any provision or part of any provision of this contract is unenforceable, such unenforceability shall not affect the application of any other part of such provision or any other provision hereof. Further, should the Company elect not to exercise any of its rights under this contract, under any other contract/agreement or under law, such election shall not constitute a waiver of any rights relating to any other or subsequent breach by the Customer.

26. Inconsistency & Priority

a) To the extent of any inconsistency of enforceable terms or a part thereof herein, these terms will prevail over any other terms issued by the Company or Customer.

b) The use of the Customer’s own form is no derogation to these terms and conditions.

27. Trade Practices

a) These terms do not affect the Customer’s rights pursuant to Schedule 2 of the CCA if the Customer is a “Consumer” or “Small Business” and this agreement with the Customer is a “Consumer Contract” or “Small Business Contract” – all quoted terms as defined under the CCA.  To the extent that any term or a part thereof is rendered inapplicable or void by the CCA or any other legislation, it shall be rendered inapplicable or void only to the extent required to give effect to that legislation but not further.

b) If the Customer is a “Consumer” or “Small Business” and this agreement is a “Consumer Contract” or “Small Business Contract” as defined under the CCA, the parties agree that:

i) the prevention of claims and indemnity referred in Clause 5 above as against the Company’s servants, agents, subcontractors and/or vicariously liable persons will not apply;

ii) the Company’s right to exclude, limit and/or otherwise restrict its liability in Clause 7 above is based on a low cost rate service where the Customer can cover its risk of loss or damage in relation to the Services by acquiring insurance itself. If the Customer wishes the Company to accept greater liability, it can also negotiate in writing with the Company for same at an agreed greater cost rate;  

iii) the Customer’s indemnity referred under Clause 10(a)(i) above will not apply to the extent that the claim, loss, damage, payment, fine, expense, duty, tax, impost, outlay, cost or other liability incurred by the Company resulted from the negligence, recklessness or wilful act of the Company, its servants or agents.

iv) Unless written notification to the contrary is given by the Customer to the Company at or prior to entering into this agreement, the Customer expressly warrants and represents that all or any Services to be supplied by the Company and acquired by the Customer pursuant to this agreement are so supplied and acquired for the purposes of a business, trade, profession or occupation carried on or engaged in by the Customer.

28. Reasonable Care/Force Majeure

Where the Company is unable to carry out any obligation under the contract or any loss or damage is caused to the Goods or otherwise due to any circumstance, matter or thing beyond its reasonable control (“force majeure”) or its exercise of reasonable care, the Company shall be excused and released from such obligations or liability to the extent of such prevention, restriction or interference so caused