PART I: General Conditions
1. DEFINITIONS
1.1 In these conditions:
"Agreement" means the entire terms and conditions herewith.
"Authority" means a duly constituted legal or administrative person, acting within its legal powers and exercising jurisdiction within any nation, state, municipality, port or airport;
"Carriage" means the transportation and conveyance of Goods by land, sea, air or rail.
"Company" is Global Forwarding Pty Ltd, ACN 120 298 884;
"Container" includes any container, flexitank, trailer, transportable tank, flat, pallet or any article of transport used to carry or consolidate goods and any equipment of or connected thereto;
"Customer" is …………………………………..
"Dangerous Goods" includes goods which are or may become of a dangerous, inflammable, radio-active or damaging nature and goods likely to harbour or encourage vermin or other pests and goods that are likely to cause property or personal injury;
“Director” has the same meaning as a director in accordance with section 9 of the Corporations Act 2001 (Cth);
"Goods" includes the cargo and any container not supplied by or on behalf of the Company, in respect of which the Company provides a service;
"Hague-Visby-Rules" means the text set out in Schedule 1 of the Carriage of Goods by Sea Act 1991(Cth) which is Articles 1 to 10 of the Brussels Convention, as amended by Articles 1 to 5 of the Visby Protocol and Article II of the SDR Protocol.
“Hamburg Rules” means Articles 1 to 26 (inclusive) of the Hamburg Convention and Annex II of the Final Act of the United Nations Conference on the Carriage of Goods by Sea done at Hamburg on 31 March 1978.
"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;
"Owner" includes the owner, shipper and consignee of the Goods and any other person who is or may become interested in the Goods and anyone acting on their behalf;
"Person" includes persons or any body or bodies corporate;
"Instructions" means a statement of the Customers specific requirements;
"Services" means the whole of the Services provided by the Company to the Customer (including, but not excluded to, the Carriage of the Owner’s Goods) and all matters necessarily related to the provision of the Services;
"Warsaw Convention" means the Convention for the Unification of Certain Rules Relating to International Carriage by Air dated 12 October 1929 as amended at the Hague, 1955 and supplemented by the Guadalajara Convention dated 18 September 1961 as applied respectively by the legislation of the Commonwealth of Australia and of New Zealand.
2. INTERPRETATION
In this Agreement, unless the context otherwise requires:
(a) a reference to a document includes but is not limited to any computer program, circuit, circuit layout, plan, drawing, specification, material and record;
(b) a reference to any thing includes a part of that thing; and
(c) words importing the singular include the plural and vice versa.
3. APPLICATION
3.1 The parties agree that:
(a) the Goods are only received for Carriage by the Company on the basis of the terms of this Agreement and subject to Clause 3.1(b), all Services undertaken by the Company are subject to this Agreement;
(b) where a document is issued by or on behalf of the Company and bears the title of, or includes the words, "bill of lading" (whether or not negotiable), or sea or air "waybill" and provides that the Company contracts as carrier, the provisions set out in that document, if inconsistent with this Agreement, shall prevail over this Agreement save only to the extent that such provisions are inconsistent;
(c) any variation, cancellation or waiver of this Agreement must be in writing signed by a Director of the Company. The Customer acknowledges and agrees that no other person has been given any authority whatsoever to agree to any variation, cancellation or waiver of this Agreement.
4. PROVISION OF SERVICES
4.1 All services are provided by the Company as a forwarding agent of the Customer and not as a principal, except in the following circumstances where the Company acts as principal:
(a) the provisions of Part III of this Agreement;
(b) to the extent that the Company expressly agrees in writing to act as a principal; or
(c) to the extent that the Company is held by a court of law to have acted as a principal.
4.2 Without prejudice to the generality of clause 4.1:
(a) the charging by the Company of a fixed price for any services whatsoever shall not in itself determine or be evidence that the Company is acting as an agent or a principal in respect of those services;
(b) the supplying by the Company of its own or leased equipment shall not in itself determine or be evidence that the Company is acting as agent or a principal in respect of any Carriage, handling or storage of Goods;
(c) the Company acts as an agent and never as a principal where the Company procures a bill of lading, sea or air waybill or other document evidencing a contract of Carriage between a person, other than the Company, and the Customer or Owner;
(d) the Company acts as an agent and never as a principal when providing services as a customs broker in respect of or relating to customs requirements, taxes, licenses, consular documents, certificates of origin, inspection, certificates and other similar services or when obtaining insurances for or on behalf of the Customer or relating to the Goods (other than where by law the Company is deemed to be an agent of the insurer) or when providing any other services whatsoever for or on behalf of the Customer.
5. CUSTOMER WARRANTIES
5.1 The Customer warrants that:
(a) it is the Owner of the Goods and that it is duly authorised to enter into this Agreement;
(b) where it is the agent of the Owner of the Goods, it is duly authorised to enter into this Agreement as agent for and on behalf of the Owner;
(c) all particulars filled in on any declaration form are correct and are in compliance with any laws concerning the transportation of goods;
(d) it has reasonable knowledge of matters affecting the conduct of its business, including, but not limited to, the terms of sale and purchase of the Goods and all other matters relating to the Good;
(e) it shall give sufficient and executable instructions to the Company or to any third party as the Company may direct from time to time in the furtherance of the provisions of Services;
(f) the description and particulars of the Goods are complete and correct (including the particulars of Goods, values, weights and any other relevant information);
(g) the Goods are properly packed and labelled, except where the Company has accepted instructions in respect of packaging and/or labelling.
5.2 The Customer acknowledges and agrees that the Company has relied upon these warranties contained in clause 5.1 as an inducement to enter into this Agreement.
6. DANGEROUS GOODS, SPECIAL INSTRUCTIONS & SERVICES
6.1 Unless agreed in writing, the Customer shall not deliver to the Company, or cause the Company to deal with or handle, Dangerous Goods.
6.2 If the Customer breaches clause 6.1:
(a) the Customer shall be liable for all loss or damage howsoever caused by or to or in connection with the Goods howsoever arising;
(b) the Customer shall defend, indemnify and hold harmless the Company against all penalties, liabilities, claims, damages, costs (including, but not limited to, legal costs and expenses on a solicitor/own client basis) and expenses howsoever arising;
(c) the Company (or any other person in whose custody the Goods may be in at the relevant time) may, at the Company's sole discretion, have the Goods destroyed or otherwise dealt with. For the purposes of this sub-clause, notice is not required to be given by the Company to any person of the intention to destroy or otherwise deal with the Goods.
6.3 If the Company agrees to accept Dangerous Goods and the Company and/or any Authority subsequently deems that those Goods constitute a risk to other goods, property, life or health, the Company (at its own discretion or at the direction of any Authority) may (without notice and without liability) have the Goods destroyed or otherwise dealt with at the expense of the Customer.
6.4 The Customer undertakes that where Goods require temperature control, the Customer must give written notice of the Goods’ nature and the particular temperature range to be maintained.
6.5 In the case of a temperature controlled Container stuffed by or on behalf of the Customer, the Customer further undertakes that:
(a) the Container has been properly pre-cooled or pre-heated as appropriate;
(b) the Goods have been properly stuffed in the Container; and
(c) the Container's thermostatic controls have been properly set by the Customer.
6.6 If a Container has not been packed or stuffed by the Company, the Company shall not be liable for any loss or damage to the contents within the Container.
6.7 The Customer acknowledges and agrees that if the requirements of clause complied with, the Company shall not be liable for any loss of or damage to the Goods caused by such non-compliance.
6.8 Unless agreed in writing by the parties:
(a) the Company accepts no responsibility for departure or arrival dates of Goods;
(b) the Company shall not be obliged to make any declaration for the purposes of any statute, convention or contract as to the nature or value of any Goods or as to any special interest in delivery or to make any declaration as to specific stowage requirements of any Goods; and
(c) instructions relating to the delivery or release of Goods against payment or against surrender of a particular document shall be in writing and the Company's liability shall not exceed that provided for in respect of misdelivery of the Goods.
7. INSURANCE
7.1 The Customer acknowledges and agrees that:
(a) no insurance shall be effected except upon express instructions given in writing by the Customer to the Company and further where the Company effects any such insurances the Company shall be deemed to be an agent only of the Customer (other than where by law the Company is deemed to be an agent of the insurer) and not as an insurer, insurance broker or other form of intermediary;
(b) unless agreed in writing, the Company shall not be under any obligation to effect a separate insurance on each consignment but may declare it on any open or general policy; and
(c) in the event should the insurers dispute their liability pursuant to an insurance policy procured by the Company in accordance with this Clause 7.1(a) for any reason, the insured shall have recourse against the insurers only and the Company shall not be under any responsibility or liability whatsoever in relation thereto, notwithstanding that the premium upon the policy may not be at the same rate as that charged by the Company or paid to the Company by the Customer.
8. GENERAL INDEMNITIES AND LIABILITIES OF THE CUSTOMER AND OWNER
8.1 The Customer shall defend, indemnify and hold harmless the Company from and against all claims, costs (including, but not limited to, legal costs on a solicitor/own client basis) and demands whatsoever and by whomsoever made or preferred, in excess of the liability of the Company under this Agreement.
8.2 The Customer and Owner shall jointly and severally defend, indemnify and hold harmless the Company against all liability, loss, damage, costs (including, but not limited to, legal costs on a solicitor/own client basis) and expenses howsoever arising:
(a) from the nature of the Goods, other than to the extent caused by the Company's negligence or default whilst Goods are in the actual custody of the Company’s employees;
(b) out of the Company acting in accordance with the Customer's or Owner's instructions; or
(c) from a breach of warranty or obligation by the Customer or arising from the negligence of the Customer or Owner.
8.3 Except to the extent caused by the Company's negligence, the Customer and Owner shall be liable for and shall defend, indemnify and hold harmless the Company in respect of all duties, taxes, imposts, levies, deposits and outlays whatsoever levied by any Authority and for all payments, fines, costs, expenses, loss and damage whatsoever incurred or sustained by the Company in connection therewith.
8.4 Advice and information, in whatever form it may be given, is provided by the Company for the Customer only and the Customer shall defend, indemnify and hold harmless the Company for all liability, loss, damage, costs and expenses arising out of any other person relying on such advice or information.
8.5 The Customer shall be liable for the loss, damage, contamination, soiling, detention or demurrage before, during and after the Carriage of property of:
(a) the Company (including, but not limited to, Containers);
(b) the Company's servants, sub-contractors or agents;
(c) independent contractors engaged by the Company for performance of part or all of the Services; or
(d) any vessel caused by the Customer or Owner or any person acting on behalf of either of them or for which the Customer is otherwise responsible.
8.6 Instructions to collect payment on delivery in cash or otherwise are accepted by the Company upon and on the condition that the Company in the matter of such collection will be liable for the exercise of reasonable diligence and care only. Unless express written instructions are received that the Goods are not to be delivered without payment, the Company accepts no liability if, upon delivery of the goods, payment is not made.
9. SUBCONTRACTORS
9.1 If any claim is made by the Customer against any servant, subcontractor or agent of the Company which imposes or attempts to impose upon any of them any liability whatsoever in connection with the Goods, the Customer undertakes to indemnify the Company against all consequences thereof.
9.2 In this clause, "sub-contractors" includes direct and indirect sub-contractors and their respective employees, servants and agents.
10. CHARGES & FEES
10.1 The Customer shall pay to the Company in cash, or as agreed, all sums stipulated in the initial quotation immediately when due without deduction or deferment on account of any claim, counterclaim or set-off.
10.2 Unless a special agreement is made as to the rate of Carriage, the Company has the option of charging by value, weight or measurement.
10.3 When the Company is instructed to collect freight, duties, charges or other expenses from any person other than the Customer (and where the Company pays statutory disbursements on behalf of the Customer, the Customer:
(a) shall remain responsible for these amounts; and
(b) shall pay these amounts to the Company on demand where these amounts have become due and have not been paid by such other person prior to the delivery of the Goods.
10.4 The Customer shall be liable for and pay to the Company any additional costs or expenses the Company may incur and for any loss or damage occasioned either directly or indirectly to the Company as a result of the Company relying upon the description and particulars provided by the Customer or by reason of any illegal, incorrect or insufficient marking, numbering or addressing of the Goods.
10.5 The Customer agrees to pay all lawful and customary charges in case the receiver of the Goods declines to receive the goods (whether lawfully or unlawfully) or refuses or is unable to pay the charges on the Goods for any reason.
10.6 The Customers shall be responsible for the payment of the following charges which are addition to the rate for Carriage:-
(a) any increase in rates, freights, premiums or other charges which may be imposed after the commencement of the Services; and
(b) customs duties, local taxes and charges and porterage and local delivery expenses.
(c) Consulting outside of the scope of actual shipments supported by way of AWB or BOL will be charged at AUD 30.00/hr plus GST
10.7 All rates and charges when payable abroad are liable to be slightly increased due to exchange rate movements in the price of Carriage and other services associated with the transport and customs clearance of the goods and other factors beyond the control of the Company.
10.8 On all accounts overdue to the Company, the Company shall be entitled to:
(a) impose interest at the rate of sixteen percent (16%) per annum computed on the amount in respect of which default is made during the period of default shall be paid on demand by the Customer to the Company; and/or;
(b) sue for the unpaid money immediately without mediating, without giving notice and without affecting any other right.
(c) All invoices 30 days over the due date are automatically handed over to a Debt Collection Agency. All collection charges are added to the invoice.
(d) The Director/Directors will also levy a fee of AUD 125.00/hr plus GST for time in Court or Mediation.
A disputed amount on the invoice is not a valid reason for withholding entire payment.
10.9 A dispute between the parties as to any clause in this Agreement is not grounds for non-compliance by the Customer of this clause 10.
11. ROUTE
11.1 Subject to any special agreement made with or direction given by the Customer, the Company is entitled to use its own discretion as to the route and means of transmission and as to the making of any declaration of value or interest for the purpose of any bill of lading or other document of title or for any other purpose.
12. LIBERTIES AND RIGHTS OF THE COMPANY
12.1 The Company shall be entitled in its sole discretion and without notice to the Customer to enter into contracts on behalf of itself or the Customer:
(a) for the Carriage of Goods by any route, means or person;
(b) for the Carriage of Goods of any description, whether containerised or not, on or under the deck of any vessel;
(c) 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;
(d) for the Carriage or storage of Goods in containers or with other goods of whatever nature;
(e) for the performance of its own obligations, and to do such acts as the Company reasonably considers may be necessary or incidental to the performance of the Company's obligations in accordance with this agreement.
12.2 Where the Company exercises its rights under clause 12.1 and enters into contracts on behalf of the Customer, the Customer acknowledges and agrees to indemnify the Company from all liability arising from the contracts.
12.3 The Company shall be entitled (without incurring any additional liability), to depart from the Customer's instructions in any respect if the Company considers there is good reason to do so in the Customer's interest.
12.4 The Company may at any time comply with the orders or recommendations given by any Authority. The responsibility and liability of the Company in respect of the Goods shall cease on the delivery or other disposition of the Goods in accordance with such orders or recommendations.
12.5 The Company shall be entitled at any time and from time to time to inspect the Goods and for this purpose to open or remove any Containers.
12.6 If at any time the Company reasonably considers that the Carriage of the Goods should not be undertaken or continued or only continued after effecting any necessary incidental matters or incurring additional expense or risk, the Company shall be entitled to:
(a) abandon the Carriage of such cargo or to effect such additional Incidental Matters and incur such additional expense, as may be reasonably necessary in order to enable the Carriage to be effected or further effected; and
(b) be reimbursed by the Customer for the cost of all such additional incidental matters and all such additional expense incurred.
12.7 If the Company (or any party whose services the Company engages) considers:
(a) the performance of the Company's obligations are likely to be affected by any hindrance, risk, delay, difficulty or disadvantage whatsoever; and
(b) the hindrance, risk, delay, difficulty or disadvantage cannot be avoided by reasonable endeavours of the Company or such other person,
the Company may treat the performance of its obligations as terminated and may, at the Customer's expense, place the Goods or any part of them at the Customer's or Owner's disposal at any place which the Company deems safe and convenient.
12.8 Where the Company exercises its rights and obligations under Clause 12.7, responsibility and liability of the Company in respect of the Goods shall thereupon cease absolutely.
12.9 Where the Company (or any party whose services the Company engages) is entitled to call upon the receiver to take delivery of the Goods at a designated time and place and delivery of the Goods, or any part thereof, is not taken by the Customer or Owner at the designated time and place, the Company (or such other person) shall be entitled to store the Goods in the open or under cover at the sole risk and expense of the Customer.
12.10 Notwithstanding Clauses 12.7 to 12.9, the Company shall be entitled, without any responsibility or liability to the Customer and Owner, to sell or dispose of:
(a) all Goods which the Company considers cannot be delivered as instructed, but only upon giving 21 days notice in writing to the Customer; and
(b) without notice, Goods which have perished, deteriorated or altered, or are in immediate prospect of doing so in a manner which has caused (or may be reasonably expected to cause) loss or damage to any person or property or to contravene applicable regulations.
12.11 Where the Company sells or disposes of Goods pursuant to Clause 12.10 the Customer shall be responsible for any costs and expenses of the sale or disposal.
12.12 The Company shall be entitled to retain and be paid all brokerages, commissions, allowances and other remunerations customarily retained by or paid to freight forwarders without notice to the Customer.
12.13 The Company shall have the right to enforce against the Owner and the Customer jointly and severally any liability of the Customer under this Agreement or to recover from them any sums to be paid by the Customer which have not been paid.
13. LIEN
13.1 The Customer agrees that all Goods received by the Company or its agents are held by them subject to a general lien and right of detention of money due to the Company whether for the forwarding of those or other Goods or for other charges or costs payable by the Owner of the Goods.
13.2 The Company shall have a particular and general lien on all Goods or documents relating to Goods in its possession of the Customer or Owner for all sums due at any time from the Customer or Owner.
13.3 Where any sum due to the Company from the Customer or Owner remains unpaid, the Company, on giving 14 days notice in writing to the Customer, shall be entitled (without liability to the Customer and Owner) to sell or dispose of such Goods or documents by public auction or by private treaty at the risk and expense of the Customer and Owner and to apply the proceeds of any such sale or disposal in or towards the payment of the sums due.
14. GENERAL LIABILITY
14.1 The Company is not responsible for any accident or for any act, neglect or default arising whether wilful or otherwise on the part of its agents or those with whom it contracts for the Goods to be forwarded, whether they are carriers by land, sea or air (whether ship-owners, lightermen, canal, railway or aircraft operators or others) or warehouse keeps or other persons.
14.2 The company will not be liable for any loss or damage howsoever caused or arising, including but not limited to:
(a) the act or omission of the Customer or Owner or any party acting on their behalf;
(b) compliance with the instructions given to the Company by the Customer, Owner or any other party entitled to give them;
(c) insufficiency of the packing or labelling of the Goods;
(d) the handling, loading, stowage or unloading of the Goods by the Company, its servants, agents or sub-contractors in the provision of the Services;
(e) inherent vice of the Goods;
(f) any manner of force majeure recognised at law including fire, flood, storm, explosion or theft;
(g) riots, civil commotions, strikes, lockouts, stoppage or restraint of labour from whatsoever cause,
(h) any other cause beyond the reasonable control of the Company.
14.3 The Company also accepts no liability for any consequential loss or damage to the Customer, including but not limited to loss of profits and pure economic loss, loss or damage resulting from delay or deviation in relation to the Company’s Services.
15. AMOUNT OF COMPENSATION
15.1 The liability of the Company, howsoever arising, shall not exceed the following:
(a) in respect of all claims (other than those subject to the provisions of clause 15.3) whichever is the lesser of:
(i) the value of; or
(ii) the equivalent of US$2.00 per gross kilogram in the currency of the loss or damage, (the exchange rate to apply being the rate as at the date of the delivery of the Goods)
of the Goods lost, damaged, misdirected, misdelivered or in respect of which a claim arises;
(b) in respect of claims for delay where not excluded by the provisions of this Agreement, the amount of the Company’s charges in respect of the Goods delayed.
15.2 The limitation of liability referred to in clause 15.1 shall apply even if the cause of the loss or damage is unexplained.
15.3 Compensation shall be calculated by reference to the invoice value of the Goods plus freight and insurance if paid.
15.4 If there is no invoice value for the Goods, the compensation shall be calculated by reference to the value of such Goods at the place and time when they were delivered to the Customer or Owner or should have been so delivered. The value of the Goods shall be fixed according to the current market price, or, if there be no commodity exchange price or current market price, by reference to the normal value of goods of the same kind and quality.
16. NOTICE OF LOSS, TIMEBAR
16.1 The Company shall be discharged of all liability unless:
(a) notice of any claim is received by the Company or its agent in writing within 14 days after the date specified in clause 16.2, or within a reasonable time after that date if the Customer proves that it was impossible to so notify the Company; and
(b) suit is brought in the proper forum and written notice thereof received by the Company within 9 months after the date specified in clause 16.2.
16.2 For the purposes of clause 16.1, the applicable dates are:
(a) in the case of loss or damage to Goods, the date of delivery of the Goods;
(b) in the case of delay or non-delivery of the Goods, the date that the Goods should have been delivered;
(c) in any other case, the event giving rise to the claim.
17. MEDIATION OF DISPUTE
17.1 Except for a claim under Clause 10.8(b), if a dispute or breach arises out of or relates to this Agreement, a party to this Agreement may not commence any court proceedings relating to the dispute unless it has complied with this Clause except where the party seeks urgent interlocutory relief.
17.2 A party to this Agreement claiming that a dispute has arisen under or in relation to these conditions must give written notice to the other party to this Agreement specifying the nature of the dispute.
17.3 On receipt of that notice by that other party, the parties to this Agreement must endeavour in good faith to resolve the dispute expeditiously using mediation.
17.4 The parties must jointly appoint a mediator and agree on the mediator’s remuneration. If the parties fail to agree on the appointment and remuneration within 5 days of service of the notice or any other time that the parties agree to in writing, either party may apply to the President of the Law Institute of Victoria or the President’s nominee to appoint a mediator and determine the mediator’s remuneration.
17.5 The parties must observe the instructions of the mediator about the conduct of the mediation.
17.6 If the dispute is not resolved within 10 days after the mediator is appointed, or any other time that the parties agree to in writing, the mediation ceases.
17.7 Each party must pay an equal share of the costs of the mediation to the mediator and each party agrees to indemnify the mediator against liability in respect of the mediation of the dispute.
17.8 If the dispute is resolved, each party must sign the terms of the agreement and the terms are binding on the parties and override the terms of this contract if there is any conflict.
17.9 The mediation procedure is written and confidential and:
(a) written statements prepared for the mediator or for a party; and
(b) any discussion between the parties and between the parties and the mediator before or during the mediation procedure cannot be used in any legal proceedings.
18. NOTICE
Any notice served by post shall be deemed to have been given on the third day following the day on which it was posted to the address last known to the Company to be the address of the recipient of the notice.
19. DEFENCES AND LIMITS OF LIABILITY
The defences and limits of liability provided in this Agreement shall apply in any action against the Company whether founded in contract or in tort or otherwise founded.
20. LEGISLATION
20.1 If any legislation is compulsorily applicable to any business undertaken, this Agreement shall be read as subject to such legislation and nothing in this Agreement shall be construed as a surrender by the Company of any of its rights or immunities or as an increase of any of its responsibilities or liabilities under such legislation.
20.2 If any part of this Agreement is held to be repugnant to such legislation to any extent, such part shall be over-ridden to that extent and no further.
21. GOVERNING LAW AND JURISDICTION
21.1 These Conditions and any claim or dispute arising out of or in connection with the services of the Company shall be subject to the law of the State of Victoria and any such claim or dispute shall be determined by the Courts of Victoria and the Commonwealth of Australia.
21.2 When New Zealand law has application to this Agreement, all Services provided by the Company as a carrier (within the meaning of the Carriage of Goods Act 1979 (as amended)) of New Zealand are provided at limited carrier's risk in accordance with this Agreement and the provisions of that Act shall prevail over any inconsistency in this Agreement to the extent of such inconsistency but no further.
PART II: Company As Agent
22. SPECIAL LIABILITY AND INDEMNITY CONDITIONS
22.1 To the extent that the Company acts as an agent, the Company does not make or purport to make any contract with the Customer for the Carriage, storage or handling of the Goods nor for any other physical service in relation to them and acts solely on behalf of the Customer in securing such services by establishing contracts with third parties so that direct contractual relationships are established between the Customer and such third parties.
22.2 The Company shall not be liable for the acts and omissions of third parties referred to in clause 21.1.
22.3 The Company, when acting as an agent, has the authority of the Customer to enter into contracts on the Customer's behalf and to do acts which bind the Customer in all respects notwithstanding any departure from the Customer's instructions.
22.4 The Customer shall defend, indemnify and hold harmless the Company in respect of all liability, loss, damage, costs or expenses arising out of any contracts made in the procurement of the Customer's requirements in accordance with clause 21.1.
PART III: Company as Principal
23. SPECIAL LIABILITY CONDITIONS
23.1 Where the Company contracts as principal for the performance of the Customer's instructions, the Company undertakes to perform, or in its own name to procure, the performance of the Customer's instructions and, subject to the provisions of this Agreement, shall be liable for the loss of or damage to the Goods occurring from the time that the Goods are taken into its charge until the time of delivery.
23.2 Where:
(a) the Company contracts as a principal and sub-contracts the performance of the Company's services;
and
(b) it can be proved that the loss of or damage to or in respect of the Goods was caused whilst the Goods were in the care or custody of the subcontractor, the Company shall have the full benefit of all rights, limitations and exclusions of liability available to the sub-contractor in the contract between the Company and the sub-contractor and in any law, statute or regulation and the liability of the Company shall not exceed the amount recovered, if any, by the Company from the subcontractor.
23.3 Notwithstanding other provisions in this Agreement, if it can be proved that the loss of or damage to the Goods occurred at sea or on inland waterways and the provisions of clause 23.2 do not apply, the Company's liability shall be determined by the Hague-Visby Rules. Reference in the Hague-Visby Rules to Carriage by sea shall be deemed to include reference to Carriage by inland waterways and the Hague-Visby Rules shall be construed accordingly.
23.4 Notwithstanding the provisions of clauses 23.2 and 23.3, if the loss of or damage to the Goods occurred at sea or on inland waterways, and the Owner, Charterer or operator of the carrying vessel is entitled to limit its liability at law and establishes a limited fund, the liability of the Company shall be limited to the proportion of such limitation fund as is allocated to the Goods.
23.5 In the event of any inconsistency between this Agreement and the conditions of any Bill of Lading or Air Waybill issued by or on behalf of the Company as Principal, the conditions of any such Bill of Lading or Air Waybill shall prevail to the extent of such inconsistency but no further.
24. USA AND/OR CANADA AND ADDITIONAL RESPONSIBILITY CLAUSE
24.1 With respect to transportation within the USA or Canada, the responsibility of the Company shall be to procure transportation by carriers (one or more) and such transportation shall be subject to such carrier's contracts and tariffs and any law compulsorily applicable. The Company guarantees the fulfilment of such carrier's obligations under their contracts and tariffs.
24.2 If and to the extent that the provisions of the Carriage of Goods by Sea Act 1936 (USA) Harter Act of the USA 1893 would otherwise be compulsorily applicable to regulate the Company's responsibility for the Goods during any period prior to loading on or after discharge from the vessel on which the Goods are to be or have been carried, the Company's responsibility shall instead be determined by this Agreement.
24.3 If and to the extent that the provisions of the Regulations made pursuant to the Carriage of Goods by Sea Act 1991 (as amended) of the Commonwealth of Australia (or any amendments to such Regulations) would otherwise be compulsorily applicable to regulate the Company's responsibility for the Goods during any period prior to loading on or after discharge from the vessel on which the Goods are to be or have been carried, the Company's responsibility shall be determined by this Agreement. If such provisions are found to be invalid such responsibility shall be determined by the provisions of the said Carriage of Goods by Sea Act.
24.4 If the Hamburg Rules should be held to be compulsorily applicable to any Carriage of goods by sea undertaken by the Company as principal, this Agreement shall be read subject to the provisions of the Hamburg Rules and any term of this Agreement that is repugnant to the Hamburg Rules shall be void to the extent of such repugnancy but no further.
25. AIR CARRIAGE
25.1 Where the Company acts as a principal in respect of a Carriage of Goods by air, the following notice is hereby given:
If the Carriage involves an ultimate destination or stop in a country other than the country of departure, the Warsaw Convention may be applicable and the Convention governs and in most cases limits the liability of carriers in respect of loss of or damage to Goods. Agreed stopping places are those places (other than the places of departure and destination) shown under requested routing and/or those places shown in carrier's timetables as scheduled stopping places for the route. The address of the first carrier is the airport of departure.
Notwithstanding any other provision of this Agreement, where the Company acts as a principal in respect of a Carriage of Goods by air, the Company's liability in respect of loss of or damage to such Goods shall be determined in accordance with the Warsaw Convention.