TRADING TERMS AND CONDITIONS

BLOOMCORP

  1. DEFINITIONS

In these terms and conditions:

Authority means a duly constituted legal or administrative person, acting within its legal powers and exercising jurisdiction with any nation, state, municipality, port or airport.

Claim means any claim made (by allegation, demand, suit, action, or other proceeding of any nature), whether arising under contract, tort equity, negligence or otherwise.

Company means MJ Bloomcorp Pty Ltd ACN 661 658 546.

Competition and Consumer Act means Competition and Consumer Act 2010 (Cth).

Container includes any container, flexitank, trailer, transportable tank, flat, pallet or any article of transport used to carry goods and any equipment of or connected thereto.

Consignee means the entity who is responsible for the receipt of a shipment.

Consequential Loss means any Loss that does not arise naturally in the ordinary course of things from the event or circumstances giving rise to the Loss.

Customer means any person at whose request or on whose behalf the Company provides a Service and who becomes bound by these Terms and Conditions.

Dangerous Goods include goods which are or may become dangerous, inflammable, radio-active or damaging in nature and goods likely to harbor or encourage vermin or other pests.

Debts means all amounts owing by the Customer to the Company on any account.

Force Majeure Event means

  • Fire, flood, earthquake or any act of God;
  • epidemics, pandemics or another similar event;
  • civil or military authority, war, terrorism, riot, insurrection, vandalism or sabotage; or
  • strikes, lockout, ban or labour disputes (excluding strikes or labour disputes of a party’s employees).

Goods means the goods which the Customer or any other person has provided together with any Container to the Company.

GST means the tax payable on taxable supplies under the GST Legislation.

GST Legislation means A New Tax System (Goods and Services Tax) Act 1999 (Cth) and any related act imposing such tax or legislation that is enacted to validate, recapture or recoup such tax, and includes any subordinated legislation in respect of those acts.

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.

Interest Rate means a default interest rate to be calculated at the rate of 4 per cent above the base interest rate of the Company’s financial institution.

Insolvency Event means if any (or more than one) of the following occur with respect to a Customer:

  • the Customer becomes insolvent or is otherwise unable to pay its debts as and when they fall due;
  • the Customer (or any third party) institutes any insolvency, receivership or bankruptcy proceedings with respect to the Customer, for the settlement of the Customer’s debts;
  • the Customer makes a general assignment for the benefit of creditors; or
  • the Customer ceases to conduct business.

Load Restraint Guide means the “Load Restraint Guide: Guidelines and Performance Standards for the Safe Carriage of Loads on Road Vehicles”, Second Edition 2004 and includes any subsequent editions.

Loss means any loss, cost, expense, damage or liability of any kind (whether direct, indirect or incidental), and includes legal costs on a full indemnity basis.

Navigation Act means the Navigation Act 2012 (Cth) and all regulations made under that Act, including the Australian Maritime Safety Authorities’ Marine Orders, and includes any subsequent replacement or modification or amendment to any of these acts and regulations;

Owner includes the owner, shipper, customer, consignor or consignee of the Goods and any other person who is or may become interested in the Goods and anyone acting on their behalf.

PPSA means the Personal Property Securities Act 2009 (Cth) and includes all regulations made under that Act, and any subsequent replacement or modification or amendment to the act or regulations.

Services means the whole of the services provided by the Company to the Customer and all matters necessarily related to the provision of the services.

Small Business Contract means a contract that is either a ‘small business contract’ or a ‘consumer contract’ as defined in section 23(3) of Schedule 2 to the Competition and Consumer Act.

Tax Invoice has the meaning given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Terms and Conditions means these Terms and Conditions and includes any amendments.

  1. Australian Consumer Law

These Terms and Conditions must be read having regard to the provisions of the Australian Consumer Law (set out in Schedule 2 of the Competition and Consumer Act) to the extent that those provisions are applicable to consumers as defined under Section 3 of that Schedule 2. These Terms and Conditions do not have the effect of excluding, restricting or modifying rights under the Australian Consumer Law which cannot be excluded, restricted or modified by agreement.

  1. Small Business Contract

If these Terms and Conditions are a Small Business Contract then:

  • The definition of ‘Loss’ is amended to mean any actual or ascertainable loss, cost,
    damage, expense, claim, demand, action, proceeding or liability of any kind (including
    legal costs on an indemnity basis).
  • If a variation to a quote or fee under clauses 1(d) or 9.1(e) is material, where it is reasonably practical, the Company shall give notice to the Customer of that variation.
  • If the Customer objects to a variation to a quote or fee under clauses 1(d) or 9.1(e), but does not provide the Company with acceptable alternative directions in respect of the goods, the Company in its discretion may, deliver, return, store or otherwise deal with the Goods, and the Customer shall be liable for all fees earned and costs incurred by the Company in doing so.
  • Clause 7(a) is modified, so that the Customer:
    • may make a claim against or impose liability upon any Subcontractor; and
    • is not required to indemnify any Subcontractor from and against any Loss,
      to the extent that the claim, liability or Loss was directly caused by, or in
      connection with, a grossly negligent, unlawful, or wilful act or omission by the
  • Clause 22 does not apply, and, without limitation to any other term in these Terms and Conditions:
    • The Company will be discharged from liability in relation to any claim:
      • where the loss to the Customer results from the act of a Subcontractor; and
      • the Company’s right to make a claim against that Subcontractor is subject to time limitations; and
      • the Customer does not make its claim against the Company within a period reasonably sufficient to allow the Company to make a corresponding claim against the Subcontractor within any applicable time limitation period, or
      • in all other cases, where the Customer does not make its claim within 2 years from the earlier of the delivery of the Goods, if the Goods are not delivered, the date the Goods should have been delivered or where the claim does not relate to loss or damage to Goods, the time of the event giving rise to the claim.
    • Clause 1(a) is modified so that the Company may only exercise its right of sale under a lien over Goods after the Company has given 21 days’ notice in writing to the Customer of its intention to do so.
  1. Provision of Services
    • All Services are provided by the Company as agents only, except where the Company acts as principal in the following circumstances:
      • where the Company performs any carriage, handling or storage of Goods, to the extent that the carriage is performed by the Company itself and the Goods are in the custody and control of the Company;
      • to the extent the Company agrees in writing to act as a principal;
      • to the extent that the Company is held by a court to have act as a principal
    • Without prejudice of clause 4(a):
      • the charging of a fixed price for any Services shall not in itself determine or evidence that the Company is acting as an agent or a principal;
      • the Company acts as an agent where the Company procures a bill of lading, sea or air waybill or other document evidence a contract of carriage between a person, other than the Company and the Customer;
      • the Company acts as an agent not a principal when providing any other services for or on behalf of the Customer.
    • The Company is not a common carrier and accepts no liability as such and reserves the right to accept or refuse the carriage of Goods or any other Service at its discretion. All Services are performed subject to these Terms and Conditions.
  2. Obligations of Customer

Warranties

The Customer warrants:

  • that it is either the Owner or authorised agent of the Owner of the Goods and is authorised to accept (and accepts) these Terms and Conditions, not only for itself, but also as agent for and on behalf of the Owner;
  • the description and particulars of the Goods including the nature, weight of the Goods and delivery details are accurate and correct and that any consignment documentation provided to the Company is accurate;
  • the Goods are properly packed and labelled, except where the Company has accepted instructions in respect of packaging and/ or labelling;
  • that the Goods comply with the requirements of any applicable law relating to the consigning and packaging of Goods and the expenses and charges of the Company in complying with the provisions of any such law or with the requirement of any harbor, dock, railway, shipping, customs warehouse or other Authority or company shall be paid by the Customer;
  • that any Goods that are delivered to the Company or that are to be directly received by the Company are secured for road transport in accordance with Part 1 of the Load Restraint Guide;
  • that any gross verified container weight declaration provided to the Company is compliant and accurate; and
  • that the Goods consigned for import or export by sea, the consignment document including the verified gross mass is accurate and compliant with the requirements of the Navigation Act, including to the requirements of Marine Order 32 and Marine Order 42.
  1. Insurance
    • Insurance of the Goods is the sole responsibility of the Customer.
    • The Company is under no obligation whatsoever to effect insurance on any Goods unless it receives written instructions from the Customer requesting that the Company obtain insurance and that offer is accepted by the Company in writing. The Customer agrees to indemnify and keep indemnified the Company for all costs associated with effecting any such insurance.
    • Should the Customer’s insurer dispute their liability for any reason, the Customer shall have recourse against the insurer only and the Company shall not be under any responsibility or liability in respect of the Customer’s policy.
  2. Subcontractor
    • The Customer undertakes that no claim or allegation by the Customer or Owner against any sub-contractor, servant or agent of the Company which imposes or attempts to impose any liability whatsoever arising (including negligence) in connection with the Goods. If such Claim should be made, the Customer undertakes to indemnify the Company against all consequences of such claim or allegation.
    • Without prejudice to clause 7(a), every sub-contractor, servant or agent of the Company shall have the benefit of all provisions in these Terms and Conditions as if such provisions were expressly for their benefit. The Company agrees to be bound by these Terms and Conditions, not only on its behalf, but as agent and trustee for such servants, sub-contractors and agents.
    • The Customer shall indemnify the Company from and against all Claims, costs and demands whatsoever and by whomsoever made or preferred, in excess of the liability of the Company under these Terms and Conditions.
    • The indemnity referred to in this clause 7, shall cover all Claims, costs and demands arising from or in connection with the negligence of the Company, its sub-contractors, servants, and agents.
  3. Rights of the Company
    • Unless otherwise agreed in writing, the Company shall be entitled to enter into contracts on behalf of itself or the Customer, without notice to the Customer for:
      • the carriage of Goods by any route, means or person;
      • the storage, packing, transhipment, loading, unloading or handling of Goods by any person at any place on shore or afloat for any length of time;
      • the carriage or storage of Goods in containers with other goods of whatever nature; and
      • the performance of its own obligations, and to do such acts as the Company reasonable considers may be necessary to perform its obligations.
    • 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.
    • The Company may at any time comply with the orders 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 Good in accordance with such order.
    • The Company shall be entitled from time to time to inspect the Goods and for this purpose open or remove any Containers.
    • Pending forwarding and delivery, Goods may be warehoused or otherwise held at any place the Company determines and at the Customer or Owner’s risk and expense.
    • 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:
      • abandon the carriage of such cargo or to affect such additional Incidental Matters and incur such additional expense, as may be reasonably necessary in order to enable the carriage of Goods; and
      • be reimbursed by the Customer for the cost of all such additional Incidental Matters and all such additional expense incurred.
    • If the Company considers:
      • the performance of the Company’s obligations is likely to be affected by any hindrance, risk, delay, difficulty or disadvantage whatsoever; and
      • the hindrance, risk, delay, difficulty or disadvantage cannot be avoided by reasonable endeavours of the Company or such other person,

the Company may (upon giving notice in writing to the Customer or Owner) 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.

  • Where the Company exercises its right and obligation under clause 8(g), responsibility and liability of the Company in respect of the Goods shall cease absolutely.
  • Where the Company is entitled to call upon the Customer or Owner to take delivery of the Goods at an agreed time and place and delivery of the Goods (or any part of them) is not taken by the Customer or Owner, the Company (or such other person) shall be entitled to store the Goods at the sole risk and expense of the Customer.
  • Notwithstanding clauses 8(g) to 8(i), the Company is entitled without responsibility or liability of the Customer and Owner, to sell or dispose of:
    • all Goods which the Company considers cannot be delivered (as instructed by the Customer) but only upon giving twenty-one (21) days’ notice in writing to the Customer; or
    • without notice, if the Goods, have perished, deteriorated or altered (or are in immediate prospect of doing so) in a manner which has caused (or may be expected to cause) loss or damage to any person or property.
  • If the Company sells or disposes of any Goods in accordance with clause 8(j), the Customer shall be responsible for any costs or expenses of the sale or disposal.
  • The Company shall have the right to enforce against the Customer and Owner jointly and severally any liability of the Customer under these Terms and Conditions or to recover from them any sums owing by the Customer which upon demand have not been paid.
  1. Invoices And Charges

Quotation

  • Any quotation given by the Company will be provided on the basis that the quotation will expire within the period specified on the quotation and is subject to the right of withdrawal by the Company before acceptance by the Customer.
  • If the Customer accepts the quotation in accordance with 1(a), the Customer, by way of written notice to the Company, may request a booking.
  • The Company’s acceptance of a Customer’s booking is subject to the Company attaining space for the Goods with the carrier. The Company reserves it right to reject a Customer’s booking if it can not obtain space for the Goods with the carrier.
  • If any changes occur in freight rates, customs duties, insurance premiums or any other charges applicable, the price quoted shall be subject to revision without notice.
  • The Company’s charges including freight have been calculated on the basis of particulars furnished by, or on behalf of the Customer. The Company may charge by weight, measurement or value and may at any time re-weigh, re-measure or re-value the Goods (or request same) and charge additional fees accordingly.
  • Unless otherwise stated, all charges quoted are exclusive of Goods and Services Tax (GST).
  • Charges
    • Any rates quoted by the Company for the provision of its Services are exclusive of any tax, duties, levies, imposts, deposits or outlays incurred in any way whatsoever in respect of the provision of its Services.
    • If any tax, duties, levies, imposts, excise, deposits or outlays are raised against the Company by an Agency arising out of or in any way related to the provision of its Services or by reason of any illegal, incorrect or insufficient marking, numbering or addressing of the Goods, then any such charges will be met by the Customer who hereby indemnifies the Company, its servants or agents in respect of any such charges.
    • If Goods are accepted or dealt with upon instructions to collect freight, duties, charges or other expenses from the Consignee or any other person, the Customer shall remain responsible for the same if they are not paid by such Consignee or other person.
  • Invoices
    • The Company shall issue a Tax Invoice to the Customer at such time as the Goods are received by the carrier and a bill of lading is issued to the Company.
    • The Customer shall then pay to the Company within (7) seven days:
      • the amount payable in accordance with the terms of the quotation and these Terms and Conditions; and
      • all or any other sums immediately when due,

without deduction or deferment on account of any Claim, counterclaim or set-off.

  • The Company shall under no circumstances be precluded from raising a debit or Tax Invoice in respect of any sums lawfully due to it, notwithstanding that previous debits or Tax Invoices had been raised and whether or not any notice was given that further debits or tax invoices were to follow.
  • Interest

Should any amount not be paid on the due date then any outstanding amount will attract interest at the Interest Rate until payment is received in full by the Company.

  • Commission

The Company is entitled to retain and be paid any brokerage fee, commission, allowance and other remuneration retained by or paid to shipping agents, forwarding agents and insurance brokers.

  • Non- refundable
    • The Company’s service charges including freight shall be deemed fully earned on receipt of the Goods by the Company and shall be paid and be non-refundable in any event, whether Goods are lost or not lost or a voyage or flight is broken up or abandoned.
    • If there shall be a forced interruption or abandonment of a voyage or flight at the port or airport of shipment or elsewhere, any forwarding of the Goods or any part thereof shall be at the risk and expense of the Customer or Owner.
  1. Perishable Goods
    • If the Customer requires the transportation of perishable Goods, which require temperature control, the Customer must provide written notice to the Company the nature of the Goods and the particular temperature range to be maintained and further undertakes that:
      • the Goods have been properly pre-cooled or pre-heated as appropriate;
      • the Goods have been properly packed; and
      • that the Container’s thermostatic controls have been properly set by the Customer.
    • If the requirements in clause 10(a) have not been complied with, the Company shall not be liable for any Loss or damage to the Goods caused by the Customer’s non-compliance.
    • Perishable Goods which are not taken up immediately upon arrival or which are insufficiently or incorrectly addressed or marked or were not collected or accepted by the Consignee may be sold or otherwise disposed of by the Company without notice to the Customer and payment or tender of the net proceeds of any sale after deduction of charges shall be equivalent to delivery. All charges and expenses arising in the connection with the sale or disposal of the Goods shall be paid by the Customer.
  2. Non- Perishable Goods
    • Non-perishable Goods which cannot be delivered either because they are insufficiently or incorrectly addressed or marked or were not collected or accepted by the Consignee may be sold or returned (at the Company’s option) any time after the expiration of twenty-one (21) days’ notice in writing to the Customer’s address provided at the time of booking.
    • All charges and expenses arising in connection with the sale or return of the Goods shall be paid by the Customer.
    • A communication from any agent or correspondent of the Company to the effect that the Goods cannot be delivered for any reason shall be conclusive evidence of that fact.
  3. Goods Not Accepted

Dangerous Goods

  • Unless agreed in writing, the Customer shall not deliver to the Company or cause the Company to deal with or handle, Dangerous Goods.
  • If the Customer is in breach of clause 1(a):
    • the Customer shall be liable for and indemnify the Company for all Loss or damage whatsoever caused by any Dangerous Goods;
    • the Company may have the Dangerous Goods destroyed or otherwise dealt with (without compensation to the Customer or liability on the Company).
    • For the purposes of this clause 1(b), the Customer is not required to provide notice to the Customer of the Company’s intention to destroy or otherwise deal with the Dangerous Goods.
  • If the Company agrees to accept Dangerous Goods and then reasonably forms the view that those Dangerous Goods constitute a risk to other goods, property, life or health it may (without compensation to the Customer or liability on the Company) have the Dangerous Goods destroyed or otherwise dealt with at the expense of the Customer.
  • Other Goods

Unless agreed in writing, the Company will not accept bullion, coins, precious stones, jewelry, valuables, antiques, pictures, livestock or plants and the Company will accept no liability whatsoever for any such Goods.

  1. Transport
    • In the case of carriage by sea, the value will not be declared or inserted in the bill of lading for the purpose of extending the ship owner’s liability under the Carriage of Goods by Sea Act 1991 (Cth) except upon express written instructions by the Customer.
    • In the case of carriage by air, no optional declaration of the value to increase the carrier’s liability under the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) will be made except upon express written instruction by the Customer.
    • In all other cases where there is a choice of tariff rates according to the extent of the liability assumed by carriers, warehousemen or others no declaration of the value (where optional) will be made for the purposes of extending liability and Goods will be forwarded and dealt on the basis of minimum charges unless express written instruction to the contrary are given by the Customer.
  2. COD GOODS

The Company may in its absolute discretion refuse instructions to collect Goods on delivery on COD terms in cash or otherwise. Where the Company does accept such instructions its only obligation to the Customer is to use reasonable diligence and care in such collection.

  1. Delivery
    • Unless agreed in writing that the Goods shall depart by or arrive by a particular date, the Company accepts no responsibility for departure or arrival dates of Goods.
    • The Goods shall be deemed to have been delivered as described unless notice of loss or damage to the Goods has been given in writing to the Company before or at the time of acceptance of the Goods or if the loss or damage is not apparent as the time of collection within three (3) days.
  2. Container

Packing of Container

  • If a Container has not been packed by the Company, the Company shall not be liable for loss of or damage to the contents if caused by:
    • the manner in which the Container has been packed;
    • the unsuitability of the contents for carriage in the Containers, unless the Company has approved the suitability;
    • the unsuitability or defective condition of a Container (where the Container has been supplied by the Company) shall only apply if the unsuitability or defective condition of the Container:
      • arose without negligence on the part of the Company; or
      • would have been apparent upon reasonable inspection of the Customer or Owner,
    • the fact that the Container is not sealed at the commencement of the carriage, except where the Company has agreed to seal the Container.
  • Supply of Container
    • Where the Company is instructed to provide a Container, in the absence of a written request to the contrary, the Company is not under an obligation to provide a Container of any particular type or quality.
    • The Customer agrees to indemnify and keep indemnified the Company for all hire and other charges charged for the Customer’s use of Containers provided by the Company, a
  • Return of Container
    • The Customer is responsible for the timely return of any Container to the person who owns or has a right to possession of the Container in a clean and undamaged condition.
    • The Customer agrees to indemnify the Company against any Claim, liability or expense including detention or demurrage charges which arise as a result of:
      • a failure to return the Container;
      • a delay in the return of the Container beyond the period allowed for container returns;
      • any damage to the Container;
      • the Container being returned in a dirty or contaminated condition, regardless of who failed or delayed in the return of the Container or where or by who the Container was damaged, made dirty or contaminated.
  1. Security interest

Special and General Lien

  • From the time the Company or its servants or agents, receives the Goods into its custody, the Company 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, for any amounts not paid within thirty (30) days after notice has been given to the Customer for freight, demurrage, container detention charges, duty, fines, penalties, salvage and without limitation and for any and all debts, charges, expenses or any other sums due or which become due by the Customer.
  • In addition, the lien shall cover all costs and expenses of exercising the lien, including the costs of a public or private sale or auction and legal and administrative costs.
  • The lien and rights granted in accordance with clause 1 shall survive delivery of the Goods and the Company shall be entitled to retain the proceeds of the sale of the Goods in respect of any outstanding amounts referred to in this clause 17.1.
  • The Customer acknowledges that any amounts due and owing by the Customer are secured debts and that any payment made to the Company in discharge of the Company’s lien does not amount to a preference, priority or advantage in any manner.
  • If the Company sells or otherwise disposes of such Goods, it is as principal and not as an agent or trustee of power of sale.
  • Continuing Security Interest
    • From the time the Company or its servants or agents receive the Goods into its custody, the Goods, and all of the Customer’s present and future rights in relation to the Goods, are subject to a continuing security interest in favour of the Company for payment of all amounts for freight, demurrage, container detention charges, duty, fines, penalties, salvage and without limitation for any and all debts, charges, expenses or any other sums due or which become due by the Customer.
    • In addition, the security interest shall cover all costs and expenses of exercising the lien, including the costs of a public or private sale or auction and legal and administrative costs.
  • Custody and possession
    • For the purposes of these Terms and Conditions, the Company shall be deemed to have custody and possession of the Goods:
      • whether the Goods are in the actual physical custody and possession of the Company or of its subcontractors, servants or agents; and
      • whether or not the Company is in possession of any documents of title relating to the Goods.
    • The Company and Customer agree that the Company has possession of the Goods within the meaning of Section 24 of the PPSA even if the Goods are in the possession of the Company’s subcontractors, servants or agents.
  • Registration of Security Interest

The Customer acknowledges that the Company may, at the Customer’s cost, register its security interest in the Goods, and all of the Customer’s present and future rights in relation to the Goods, on the Personal Property Securities Register established under PPSA.

  • Insolvency Event

The Customer must immediately inform the Company if an Insolvency Event occurs in respect of the Customer or Owner.

  • Customers Obligations

The Customer will not:

  • permit any other security interest in relation to the Goods be registered that would rank ahead of the Company’s interest;
  • except in the normal course of business, sell, lease or dispose of, or permit the sale, lease or sale of the Goods; and
  • not change its name or other details without first notifying the Company in writing at least fourteen (14) days before such change is to take effect.
  • Contracting Out and Waiver
    • The Company is not required to give any notice to the Customer or any other person (including a notice in the form of a verification statement) unless the notice is required to be given by the PPSA.
    • The Customer and the Company agree pursuant to section 115 of the PPSA that sections 125, 142 and 143 of the PPSA do not apply to this Agreement.
    • The Customer, pursuant to section 115 of the PPSA, waives its right to receive any notice, details or other document from the Company under sections 95, 121(4), 130, 135, 132(3)(d) and 132(4) of the PPSA.
  • Company’s rights
    • In addition to any rights the Company has under the PPSA, the Company shall have the right, as the Customer’s agent, at any time while any amounts owing by the Customer to the Company under any contract remains outstanding, to enter into the premises where Goods are stored and remove them without being responsible for any damage caused in doing so.
    • The Customer shall indemnify the Company for all such moneys and all costs, charges and expenses in repossessing the Goods.
  1. General liability
    • Except where otherwise provided in these Terms and Conditions, the Company shall not be liable for any Loss or damage whatsoever arising from:
      • the act or omission of the Customer or Owner or any person acting on their behalf;
      • compliance with the instructions given to the Company by the Customer, Owner or any other person entitled to give them;
      • insufficiency of the packing or labelling of the Goods, except where such service has been provided as a Service by the Company;
      • handling, loading, stowage or unloading of the Goods by the Customer, Owner or any person acting on their behalf;
      • for any delay in delivery, forwarding or transit or failure to deliver goods;
      • for any deterioration, contamination, evaporation of the Goods;
      • for any quotation, statement, representation or information whether oral or in writing made or given by or on behalf of the Company by an servant or agent as to the classification of, the liability for or the amount, scale or rate of customs and/ or excise duty or other impost, tax applicable to the Goods;
      • inherent vice of the Goods;
      • any Force Majeure Event; or
      • any other cause which the Company could not avoid.
    • Subject to Clause 15(a), the Company shall not be liable for Loss or damage (whether or not direct or indirect) to property other than the Goods themselves and shall not be liable for any pure economic loss or loss of profit (or similar claim), delay or deviation howsoever arising.
  2. Limitation of liablity
    • The liability of the Company, however arising, shall not exceed the value of the Goods lost, damaged, misdirected, misdelivered or in respect of which a claim arises.
    • The value of the Goods referred to in accordance with 19(a) shall be calculated by reference to:
      • the invoice value of the Goods plus freight and insurance if paid; or
      • if there is no invoice value for the Goods, the value of such Goods at the place and time when they were delivered to the Customer or Owner or should have been delivered. The value of the Goods shall be fixed to the current market price, by reference to the normal value of goods of the same kind and quality.
    • The limitation of liability referred to in clause 19(a) shall apply notwithstanding that the cause of the loss or damage is unexplained.
    • The liability of the Company arising out of any one incident for breach of any right or guarantee the Customer may have under the Competition and Consumer Act and the Australian Consumer Law, or comparable legislation in each of the States and Territories of Australia, or howsoever arising is limited to any of the following as determined by the Company:
      • the supplying of the Services again; or
      • the payment of the cost of having the Services supplied again; or
      • the value of the Goods subject of the services at the time the Goods were received by the Company,

whichever is lower.

  1. Indemnity by the Customer
    • To the maximum extent permitted by law, the Customer and Owner shall indemnify and keep indemnified the Company, its subcontractors, servants and agents against all liability, Loss, damage, cost and expense howsoever arising:
      • from the nature of the Goods, other than to the extent caused by the Company’s negligence,
      • out of the Company acting in accordance with the Customer’s or Owner’s instructions;
      • as a result of delay in loading or unloading of the Customer’s Goods, or any waiting time, detention or demurrage for any trust or any other conveyance whatsoever; or
      • from a breach of warranty or obligation by the Customer or arising from the negligence of the Customer or Owner,

except to the extent that such Loss is directly attributable to the Company’s negligence, wrongful act, omission or breach of these Terms and Conditions.

  • Notwithstanding anything else contained in these Terms and Condition, to the maximum extent permitted by law, in no circumstances shall either party be liable for any Consequential Loss suffered or incurred by the other party whatsoever arising out of or in connection with these Terms and Conditions, howsoever arising.
  1. Guarantee, undertaking and indemnity by directors and shareholders
    • If the Customer is a company, the directors and shareholders of that company agree to guarantee the Debts, undertake to perform the obligations of the Customer and indemnify and keep indemnified the Company against the Debts.
    • For the purpose of 21(a), the Customer ensures that its directors and shareholders will sign any other documents required by the Company to evidence and confirm any guarantee, undertaking and indemnity.
  2. Notice of Loss
    • The Company shall be discharged of all liability unless:
      • a notice of any Claim is received by the Company in writing by the Customer or Owner within fourteen (14) days after the date specified in clause 22(b) or within a reasonable time after such date if the Customer provides that it was impossible to notify within fourteen (14) days; and
      • a Claim is brought in the proper forum and written notice is served on the Company within 6 months after the date specified in clause 22(b).
    • For the purposes of clause 22(a), the applicable dates are:
      • in the case of Loss or damage to Goods, the date of delivery of the Goods;
      • in the case of delay or non-delivery of the Goods, the date of delivery of the Goods; and
      • in any other case, the event giving rise to the Claim.
  1. GST
    • Words used in this clause have the meanings given to those terms in the GST Legislation unless the context indicates otherwise.
    • Unless expressly stated otherwise, the consideration for any supply under or in connection with these Terms and Conditions is exclusive of GST.
    • To the extent that any supply made under or in connection with these Terms and Conditions is a taxable supply (other than any supply made under another agreement that contains a specific provision dealing with GST), the amount payable by the recipient is the consideration provided under these Terms and Conditions for that supply (unless it expressly includes GST) plus an amount (additional amount) equal to the amount of that consideration (or GST exclusive market value) multiplied by the rate at which GST is imposed in respect of the supply.
    • The recipient must pay the additional amount at the same time as the consideration to which it is referable, and upon the issue of an invoice relating to the supply.
    • If either party is entitled under these Terms and Condition to be reimbursed or indemnified by the other part for a cost or expense incurred in connect with these Terms and Conditions, the reimbursement or indemnity payment must not include any GST component of the cost or expense to the extent that the cost or expense is the consideration for a creditable acquisition made by the party being reimbursed or indemnified, or by its representative ember.
    • Whenever an adjustment event occurs in relation to any taxable supply to which subsection 23(e) applies:
      • the Company must determine the amount of the GST component of the consideration payable; and
      • if the GST component of that consideration differs from the amount previously paid, the amount of the difference must be paid by, refunded to or credited to the recipient, as applicable.
  1. Notices
    • Any notice, request, instruction or other document to be given to a party under these Terms and Conditions (Notice) must be in writing, and will be regarded as given and received when delivered personally or by prepaid post or by email, addressed to the party to be given notice to the nominated address as provided to the Company at the time of booking.
    • The Customer may change its address for notice by giving written notice of same to the Company.
  2. Miscellaneous

Entire Agreement

These Terms and Conditions constitutes the complete and exclusive statement of the agreement between the parties, superseding all previous agreements, understandings, warranties and representations, oral or written, and all other communications between the parties relating to the subject matter of the Terms and Conditions.

  • Waiver

No exercise or failure to exercise or delay in exercising any right or remedy by any party will constitute a waiver by that party of that or any other right or remedy available to it.

  • Partial invalidity/ severability

If any provision of the Terms and Conditions or its application to any party or circumstance is or becomes invalid or unenforceable to any extent the remainder of the Terms and Conditions and its application will not be affected and will remain enforceable to the greatest extent permitted by law.

  • Suspension

The Company may suspend performance of its obligations under these Terms and Conditions for so long as it is unable to perform its Services outsides of its control.

  • Governing Law and Jurisdiction

These Terms and Conditions are governed by the laws of Queensland, Australia. The parties hereby submit to the non-exclusive jurisdiction of the courts of Queensland, Australia.

 

 

Email

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Postal Address

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Ocean Grove VIC 3226

Phone Number

+61 3 9007 0944

+61 424 557 362

Business Hours

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