SW Blair Shipping Pty Ltd, ABN 14 87 641 149 608, PO Box 40 50 Cockleshell Court, Runaway Bay QLD, 4216
These terms and conditions of service constitute a legally binding contract between the “Company” and the “Customer”. In the event the Company renders services and issues a document (shipping consignment note) containing Terms and Conditions governing such services, the Terms and Conditions set forth in such other document(s) shall govern those services.
(a) “Company” shall mean SW Blair Shipping Pty Ltd, its subsidiaries, successors or assigns, related companies, agents and/or representatives.
(b) “Customer” shall mean the person for which the Company is rendering service, as well as its agents and/or representatives, including, but not limited to, shippers, importers, exporters, carriers, secured parties, warehousemen, buyers and/or sellers, shipper’s agents, insurers and underwriters, break-bulk agents, consignees, etc. It is the responsibility of the Customer to provide notice and copy(s) of these terms and conditions of service to all such agents or representatives
(c) “Documentation” shall mean all information received directly or indirectly from Customer, whether in paper or electronic form
(d) Ocean Transportation Intermediaries” (“OTI”) shall include an “ocean freight forwarder” and a “non-vessel operating common carrier;”
(e) “Third parties” shall include, but not be limited to, the following: “carriers, truck staff, cartage staff, forwarders, OTI’s, customs brokers*, agents, warehouse staff and others to which the goods are entrusted for transportation, cartage, handling and/or delivery and/or storage or otherwise.”
2. Company As Agent.
The Company acts as the “agent” of the Customer for the purpose of performing duties in connection with importer security filing services, the entry and release of goods, post entry services, the securing of export licenses, the filing of export documentation on behalf of the Customer and other dealings with Government Agencies; as to all other services, Company acts as an independent contractor.
Shipporter may engage subcontractors to perform services and contracts on its own behalf and on behalf of its servants, agents and subcontractors each of whom shall have benefit of these terms. No such party has the authority to waive or vary any of these terms.
Unless otherwise agreed in writing prior to the tender of a shipment, the service to be provided by Shipporter is limited to the pick-up, transportation by ocean freight, customs clearance and delivery of the shipment. The shipper acknowledges that shipments will be consolidated with those of other shippers for transport and that Shipporter may not monitor the inbound and outbound movement of individual shipments at all handling centres.
3. Limitation of Actions.
(a) Unless subject to a specific statute or international convention, all claims against the Company for a potential or actual loss, must be made in writing and received by the Company, within ninety (90) days of the event giving rise to claim; the failure to give the Company timely notice shall be a complete defense to any suit or action commenced by Customer.
(b) All suits against Company must be filed and properly served on Company as follows:
(i) For claims arising out of ocean transportation, within one (1) year from the date of the loss;
(ii) For claims arising out of the preparation and/or submission of an import entry(s), within seventy five (75) days from the date of liquidation of the entry(s);
(iii) For claims arising out of the preparation and/or submission of an importer security filing, within one (1) year from the date of loss;
(iv) For any and all other claims of any other type, within two (2) years from the date of the loss.
4. No Liability For The Selection or Services of Third Parties and/or Routes.
Unless services are performed by persons or firms engaged pursuant to express written instructions from the Customer, Company shall use reasonable care in its selection of third parties, or in selecting the means, route and procedure to be followed in the handling, transportation, clearance and delivery of the shipment; advice by the Company that a particular person or firm has been selected to render services with respect to the goods, shall not be construed to mean that the Company warrants or represents that such person or firm will render such services nor does Company assume responsibility or liability for any action(s) and/or inaction(s) of such third parties and/or its agents, and shall not be liable for any delay or loss of any kind, which occurs while a shipment is in the custody or control of a third party or the agent of a third party; all claims in connection with the Act of a third party shall be brought solely against such party and/or its agents; in connection with any such claim, the Company shall reasonably cooperate with the Customer, which shall be liable for any charges or costs incurred by the Company.
5. Quotations Not Binding.
Quotations as to fees, rates of duty, freight charges, insurance premiums or other charges given by the Company to the Customer are for informational purposes only and are subject to change without notice; no quotation shall be binding upon the Company unless the Company in writing agrees to undertake the handling or transportation of the shipment at a specific rate or amount set forth in the quotation and payment arrangements are agreed to between the Company and the Customer.
6. Reliance On Information Furnished.
(a) Customer acknowledges that it is required to review all documents and declarations prepared and/or filed with U.S. Customs and Border Protection, other Government Agency and/or third parties, and will immediately advise the Company of any errors, discrepancies, incorrect statements, or omissions on any declaration filed on Customers behalf;
(b) In preparing and submitting importer security filings, Customs entries, export declarations, applications, documentation and/or export data to the United States and/or a third party, the Company relies on the correctness and completeness of all documentation, whether in written or electronic format, and all information furnished by Customer; Customer shall use reasonable care to insure the correctness and completeness of all such information and shall indemnify and hold the Company harmless from any and all claims asserted and/or liability or losses suffered by reason of any incorrect, incomplete or false statement upon which the Company reasonably relied. The Customer agrees that the Customer has an affirmative non-delegable duty to disclose any and all information required to submit an importer security filing, import, export or enter the goods.
Insurance is available for purchase by the customer through our preferred insurance broker at the customers cost and the customer is also at liberty to insure the shipment through other sources. We strongly recommend that additional insurance is purchased by the customer. Insurance placed shall be governed by the certificate or policy issues provided by the insurer and will only be effective when accepted by such insurance companies or underwriters. In all cases, Customer shall pay all premiums and costs in connection with procuring requested insurance. Should an insurer dispute its liability for any reason, the insured shall have recourse against the insurer only and the Company shall not be under any responsibility or liability in relation thereto, notwithstanding that the premium upon the policy may not be at the same rates as that charged or paid to the Company by the Customer or that the shipment was insured under a policy in the name of the Company. If for any reason the goods are held in warehouse, or elsewhere, the same will not be covered by insurance, unless the Company receives specific written instructions from the Customer and the Company confirms in writing. Unless specifically agreed in writing, the Company assumes no responsibility to effect insurance on any export or import shipment that it does not handle.
8. Disclaimers; Limitation of Liability.
(a) Except as specifically set forth herein, Company makes no express or implied warranties in connection with its services;
(b) Customer agrees that in connection with any and all services performed by the Company, the Company shall only be liable for its negligent acts, which are the direct and proximate cause of any injury to Customer, including loss or damage to Customer’s goods, and the Company shall in no event be liable for the acts of third parties;
(c) In no event shall Company be liable or responsible for consequential, indirect, incidental, statutory or punitive damages even if it has been put on notice of the possibility of such damages, including any and all loss or damages arising from delay of services.
9. Advancing Money.
All charges must be paid by Customer in advance unless the Company agrees in writing to extend credit to customer; the granting of credit to a Customer in connection with a particular transaction shall not be considered a waiver of this provision by the Company.
10. Indemnification/Hold Harmless.
The Customer agrees to indemnify, defend, and hold the Company harmless from any claims and/or liability arising from importer security filing services, the importation or exportation of Customer’s merchandise and/or any conduct of the Customer, which violates any Federal, State and/or other laws, and further agrees to indemnify and hold the Company harmless against any and all liability, loss, damages, costs, claims and/or expenses, including but not limited to reasonable attorney’s fees, which the Company may hereafter incur, suffer or be required to pay by reason of such claims, including any claims by any Third party for freight or other charges, duties, fines, penalties, liquidated damages or other money due arising from services provided to or on behalf of the Customer. The confiscation or detention of the goods by any governmental authority shall not affect or diminish the liability of the Customer to the Company to pay all charges or other money due promptly on demand. In the event that any claim, suit or proceeding is brought against the Company, it shall give notice in writing to the Customer by mail at its address on file with the Company.
11. Costs of Collection.
In any dispute involving monies owed to Company, the Company shall be entitled to all costs of collection, including reasonable attorney’s fees and interest at 15% per annum or the highest rate allowed by law, whichever is less, unless a lower amount is agreed to by Company.
12. General Lien And Right To Sell Customer’s Property.
(a) Company shall have a general and continuing lien on any and all property of Customer coming into Company’s actual or constructive possession or control for monies owed to Company with regard to the shipment on which the lien is claimed, a prior shipment(s) and/or both;
(b) Company shall provide written notice to Customer of its intent to exercise such lien, the exact amount of monies due and owing, as well as any on-going storage or other charges; Customer shall notify all parties having an interest in its shipment(s) of Company’s rights and/or the exercise of such lien.
(c) Unless, within thirty days of receiving notice of lien, Customer posts cash or letter of credit at sight, or, if the amount due is in dispute, an acceptable bond equal to 110% of the value of the total amount due, in favor of Company, guaranteeing payment of the monies owed, plus all storage charges accrued or to be accrued, Company shall have the right to sell such shipment(s) at public or private sale or auction and any net proceeds remaining thereafter shall be refunded to Customer.
13. Commodities Handled and Restrictions on Service
Shipporter offers transportation of general commodities, as usually defined, subject to the following restrictions:
14. Deliveries and Undeliverables
Shipments cannot be delivered to PO boxes or postal codes. Shipments are delivered to the
Receiver’s address given by Shipper but not necessarily to the named Receiver personally.
Shipments to addresses with a central receiving area will be delivered to that area. If the
Shipment is deemed to be unacceptable, or it has been undervalued for customs purposes, or
Receiver cannot be reasonably identified or located, or Receiver refuses delivery or to pay for
delivery, Shipporter shall use reasonable efforts to return the Shipment to Shipper at Shipper’s cost,
failing which the Shipment may be released, disposed of or sold by Shipporter without incurring any
liability whatsoever to Shipper or anyone else, with the proceeds applied against service charges
and related administrative costs and the balance of the proceeds of a sale to be returned to
15. Shipment Charges
Shipporter’s Shipment charges are calculated according to the higher of actual or volumetric weight
and any Shipment may be re-weighed and re-measured by Shipporter to confirm this calculation.
Shipper shall pay or reimburse Shipporter for all Shipment charges, ancillary charges, duties and taxes
owed for services provided by Shipporter or incurred by Shipporter on Shipper’s or Receiver’s or any third party’s behalf and all claims, damages, fines and expenses incurred if the Shipment is deemed
unacceptable for transport as described in Section 13.
16. Refusal and Suspension of Service
If it comes to the attention of Shipporter that any package does not meet any of the above restrictions or conditions, Shipporter may refuse to transport the relevant package (or any shipment of which it is part of) and, if carriage is in progress Shipporter may suspend and hold the package.
Shipporter also reserves the right to refuse to provide service, among other reasons, for any package which by reason of the dangerous or other character of its contents may, in the sole judgement of Shipporter, soil, taint, or otherwise damage other packages or Shipporter’s equipment, or which is improperly or insecurely packed or wrapped. In addition, Shipporter reserves the right to refuse to provide service for any package or to or from any location, or to provide alternative service arrangements, when, among other reasons, Shipporter in its sole discretion, deems that it is unsafe or economically impracticable to provide service.
17. Right of Inspection
Shipporter reserves the right, but is not required, to open and inspect any package tendered to it for transportation.
18. Provisions for Customs Clearance
The shipper must provide required documentation as listed on the Shipporter website (www.shipporter.com) for customs clearance. By providing required documentation, the shipper certifies that all statements and information relating to exportation and importation are true and correct. Furthermore, the shipper understands that civil and criminal penalties, including forfeiture and sale, may be imposed for making false or fraudulent statements. When a shipment is tendered to Shipporter, Shipporter is thereby appointed as the agent for performance of customs clearance. Shipporter is specified as the nominal consignee for the purpose of designating a customs broker to perform customs clearance.
Customs penalties, storage charges, or other expenses incurred as a result of and action by customs or failure by the shipper or consignee to provide proper documentation or to obtain a required license or permit will be charged to the consignee along with any applicable duty or tax. The shipper shall be liable in the event of non-payment by the consignee. Routine customs clearance services are included in the Shipporter standard tariff. Additional charges may be applied for more complex customs clearance procedures as defined on the Shipporter website (www.shipporter.com/faqs).
19. Printed Signature
The Customer acknowledges that if the Shipporter website system is used to process shipments to locations outside the United States or country of shipment origin, the Customer must enter the name of the person completing the Shipping Documentation to print in lieu of its manual signature on the Shipping Documentation, as applicable, for all shipments tendered by the Customer to Shipporter using the Shipporter website system. The Customer further acknowledges that such printed name shall be sufficient to constitute the Customer’s signature, and the Customer’s acceptance of Shipporter’s terms and conditions of carriage contained in the applicable transportation agreement, tariff, website, Standard Conditions, or Shipping Documentation, under which the shipment is accepted by Shipporter, or its independent contractor.
20. Assisted Buying Service
The Customer acknowledges that where it uses the Shipporter website or system to purchase goods through an assisted buying service, Shipporter is not responsible and accepts no liability for the accuracy of the order, the quality of the goods, the size, colour, style of the goods or the suitability of the goods for the purpose they were intended. It is the responsibility of the Customer to communicate with the assisted buying service to ensure that it has supplied the buying service with an accurate description of the goods and that the assisted buying service fully understands its requirements. The assisted buying services operate indepenently of Shipporter and levy fees & charges at their discretion. The Customer will not hold Shipporter liable for any functions conducted by the assisted buying service nor any fees/charges it may levy.
21. No Duty To Maintain Records For Customer.
Customer acknowledges that pursuant to Sections 508 and 509 of the Tariff Act, as amended, (19 USC §1508 and §1509) it has the duty and is solely liable for maintaining all records required under the Customs and/or other Laws and Regulations of the United States; unless otherwise agreed to in writing, the Company shall only keep such records that it is required to maintain by Statute(s) and/or Regulation(s), but not act as a “recordkeeper” or “recordkeeping agent” for the Customer.
22. Obtaining Binding Rulings, Filing Protests, etc.
Unless requested by Customer in writing and agreed to by Company in writing, Company shall be under no obligation to undertake any pre- or post- importer security filing service or Customs release action, including, but not limited to, obtaining binding rulings, advising of liquidations, filing of petition(s) and/or protests, etc.
23. No Modification or Amendment Unless Written.
These terms and conditions of service may only be modified, altered or amended in writing signed by both Customer and Company; any attempt to unilaterally modify, alter or amend same shall be null and void.
In the event any Paragraph(s) and/or portion(s) hereof is found to be invalid and/or unenforceable, then in such event the remainder hereof shall remain in full force and effect.
25. Governing Law; Consent to Jurisdiction and Venue.
These terms and conditions of service and the relationship of the parties shall be construed according to the laws of the State of Queensland, Australia, without giving consideration to principals of conflict of law.
Customer and Company
(a) irrevocably consent to the jurisdiction of the State courts of Queensland, Australia;
(b) agree that any action relating to the services performed by Company, shall only be brought in said courts;
(c) consent to the exercise of in personam jurisdiction by said courts over it, and
(d) further agree that any action to enforce a judgment may be instituted in any jurisdiction.
* Selsby Solutions Pty Ltd ABN 90 151 525 665