PHOENIX SHIPPING – Effective August 2022

These Terms of Trade apply to all services (Services) provided by Phoenix Shipping (ABN 58 240 544 662) (the Company) to You the Customer.

Please read these Terms of Trade carefully.

We draw your particular attention to a number of terms which give the Company rights and/or reduce or exclude rights that You might otherwise have, but for these terms.

These terms are:

Clause 7: (Insurance) The Customer is encouraged to make its own arrangement for insurance cover for the Goods. The Goods are not covered by cargo insurance to cover loss of the Goods while in the Company’s custody unless this is arranged by the Customer.

Clause 11.4: (Limitation of Liability) The Company’s exclusion of liability for loss or damage arising out of the provision of the Services to the Customer (except where caused by the negligence, mistake, or wilful default or omission by the Company its servants or agents).

Clause 11.9: (Limitation of Liability) The Company’s limitation of liability for breach of any guarantees under the Competition and Consumer Act 2010 and the Australian Consumer Law.

TERMS OF TRADE

1. Definitions

In these Terms of Trade:

Agreement means the agreement between the Company and the Customer for the Company to supply goods and provide services on the terms set out in these Terms of Trade and the Credit Facility and any Tax Invoice issued by the Company to the Customer. 

Australian Consumer Law means the law set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth) and any corresponding provisions of state or territory fair trading legislation or the Australian Securities and Investments Commission Act (2001) (Cth).

Australian Consumer Law Guarantee means a guarantee applying in respect of a supply of goods or services by virtue of Division 1 of Part 3-2 of the Australian Consumer Law.

Carrier means any operator who performs the carriage of the Goods by road, rail, sea or air.

Company means Phoenix Shipping ABN 58 240 544 662 and the nominees, agents, sub-agents, assigns and employees of the Company.

Credit Facility means the granting of credit by the Company to the Customer in accordance with the terms of an application for credit by the Customer which is approved by the Company.

Customer means the entity to whom the Company provides Services pursuant to the Agreement.

Force Majeure Event means any cause or causes beyond the control of the Company, including but not limited to war (declared or undeclared), rebellion, revolution, tumults, political disturbance, accident to wharf, accidents at works or wharf, at receivers’ works or wharf, breakdown or stoppage of slurry pipeline, transfer vessels, motor vehicles or any part of the works from which the Goods are supplied or to which the Goods are destined, including loading and/or discharging facilities, installations and/or equipment at or en-route, partial or total stoppage of roads, rivers or channels, riot, insurrection, civil commotion, epidemics, pandemics, quarantine, strike, lockout, blockade, industrial disturbance, labour/industrial disputes or stoppages of miners, workmen, lightermen, tugboat men or other hands essential to the working, carriage, delivery, shipment or discharge of the Goods whether partial or general, interference of trade unions, act of God, fire, floods, storm, tempest, volcanic eruption, earthquake, landslips, frost or snow, bad weather, intervention of sanitary, customs, and/or other constituted authorities, act of government (whether de-facto or de-jure) and supervening illegality, or any other cause beyond the control of the Company. An act of government shall include, but is not limited to, the refusal to grant any necessary import or export licence.

Goods means the cargo accepted by the Company and supporting documentation together with any container, packaging or pallet(s) supplied by or on behalf of the Customer.

GST means the goods and services tax imposed by or under a GST Law.

GST Law means the same as in the A New Tax System (Goods and Services Tax) Act 1999.

GST Rate means the rate of GST under the GST Law.

Insolvency Event means any circumstance in which the Customer is unable to pay any amounts that have become due and payable and includes liquidation , official management, administration, compromise arrangement, merger, amalgamation, reconstruction, winding up, dissolution, deregistration, assignment for the benefit of creditors, scheme, composition or arrangement with creditors, insolvency, bankruptcy, or a similar procedure or, where applicable, changes in the constitution of any partnership or person, or death.

Personal Property Securities Act or PPSA means the Personal Property Securities Act 2009 (Cth).

Services mean the whole of the operations undertaken by the Company at the request of the
Customer in respect of the Goods.

Subcontractor includes any other person who pursuant to a contract or arrangement with any other person (whether or not the Company) provides or agrees to provide the Services or any part of the Services.

Supply means the same as in the GST Law.

Tax Invoice means the tax invoice under the GST Law.

Taxable Supply means any Supply under these Terms in respect of which the Company is or may become liable to pay GST.

Terms means these Terms of Trade.

2. Acceptance of Terms

2.1 Any instructions received by the Company from the Customer for the supply of Services shall constitute acknowledgement by the Customer that it has received, understands and agrees to and is bound by the Agreement. Such instructions received by the Company from the Customer for the supply of services and/or any supply of goods shall also constitute authorisation for the Company to act on behalf of the Customer in accordance with these Terms.

2.2 Any other party receiving delivery of goods or other services from the Company on behalf of the Customer, including but not limited to receivers of goods, is bound by these Terms from the time it has received delivery of Goods or other Services from the Company as if it were the Customer and the Customer is liable for the actions of the other party acting on its behalf.

2.3 The Company shall not be bound by any agreement purporting to waive or vary these Terms unless such agreement to so waive or vary shall be in writing and signed by a director of the Company.

3. Nature of services

3.1 The Company is not a common carrier and accepts no liability as such. The Company reserves the right to accept or refuse the provision of Services in respect of the Goods at its sole discretion. All Services are provided by the Company subject only to these Terms which prevail at all times over the conditions of contract of the Customer. In the event of and to the extent of any inconsistency between these Terms and the conditions which are incorporated into the bill of lading, waybill, consignment note or other transport document issued by the Company, these Terms prevail.

3.2 The Company may agree in writing that the Goods will be on-carried beyond the Port of discharge or Place of delivery as indicated in the house bill of lading. The Company is not responsible for such on-carriage and is not liable for loss or damage of or to the Goods during on-carriage. The Company will act only as agent of the Customer to arrange such on-carriage.

3.3 The Customer warrants that it is either the owner or the authorised agent of the person or persons owning or having any interest in the Goods or any part of the Goods and enters into this Agreement on its own behalf or as authorised agent of that person or those persons. The customer undertakes to and indemnifies the Company in respect of any liability whatsoever and howsoever arising (excluding any negligence, mistake or wilful default or omission by the
Company its servants or agents) in connection with the provision of the Services and/or the Goods to any person (other than the Customer) who claims to have, who has or may hereafter have any interest in the Goods or any part of the Goods.

3.4 The Customer warrants that it has complied with all laws and regulations relating to the nature, condition, packaging, handling, storage, documentation and carriage of the Goods and that the Goods are packed to withstand the ordinary risks of handling, storage and carriage, having regard to their nature and indemnifies the Company for all liability and for all costs incurred as a result of or arising out of a breach of this warranty. Further the Customer
must provide to the Company all such assistance, information and documentation that may be necessary to enable the Company to comply with such laws and regulations.

3.5 All customs and/or excise duties, costs, fines or penalties which the Company becomes liable to pay for any reason whatsoever in respect of the Goods and any documentation relating to the Goods pursuant to any applicable laws or regulations (excluding arising from any negligence, mistake or wilful default or omission by the Company its servants or agents) is payable by the Customer.

3.6 All storage costs for the Goods and costs actually or contingently accrued or incurred for arrangements in relation to the storage of the Goods, including but not limited to Customer requests for storage, storage costs accrued or arising because of Customer non-payment of a Tax Invoice, a missing surrendered bill of lading relating to the Goods, Goods that are moved because of non-payment of costs and charges in relation to the Goods, because of documentation not being, or the Customer not allowing adequate time to arrange customs
clearance and/or transport for the Goods (excluding storage costs arising from any negligence, mistake or wilful default or omission by the Company its servants or agents) are payable by the Customer.

4. Subcontracting

4.1 The Customer authorises the Company to contract with the Carrier and any Subcontractor to subcontract on any terms the whole or part of the provision of the Services.

4.2 The Customer undertakes:

(a) that no claim or allegation shall be made, whether by the Customer or any other person who is or who may subsequently be interested in the provision of the Services and/or in the Goods, against any person (other than the Company) by whom (whether it is a Subcontractor, principal, employer, servant, agent or otherwise) the Services or any part of the Services are or is provided which imposes or attempts to impose upon such person any liability whatsoever and howsoever arising (excluding any liability arising from any negligence, mistake or wilful default or omission by the Company its servants or agents) in connection with the provision of the Services and/or the Goods and if such claim or allegation should nevertheless be made to indemnify the Company and the person against whom such claim or allegation is made against the consequences of such claim or allegation. For the purpose of this Clause 4.2, the Company is or shall be deemed to be acting as agent or trustee on behalf of and for the benefit of all such persons and each of them and all such persons and each of them shall to this extent be or be deemed to be parties to this Contract; and

(b) to indemnify the Company against any claim or allegation made against it by any person in connection with any liability, arising out of or relating to the provision of the Services and/or the Goods.

4.3 Every exemption, limitation, condition and liberty in these Terms and every right, exemption from liability, defence and immunity of whatsoever nature applicable to the Company or to which the Company is entitled in accordance with these Terms shall also be available and shall extend to protect:

(a) all Subcontractors, including the Carrier;

(b) every servant or agent of the Company or of a Subcontractor;

(c) every other person (other than the Company) by whom the Services or any part of the Services are or is provided;

(d) all persons who are or may be vicariously liable for the acts or omissions of any persons falling within paragraphs (a), (b) or (b) of this Clause 4;

(e) and, for the purpose of this Clause 4, the Company is or shall be deemed to be acting as agent or trustee on behalf of and for the benefit of such persons and each of them and all such persons and each of them shall to this extent be or be deemed to be parties to this Contract.

5. Service provision discretion

5.1 The Customer authorises any deviation from the usual manner in which the Services are provided which may in the absolute discretion of the Company be deemed reasonable or necessary in the circumstances.

5.2 If the Customer expressly or impliedly instructs the Company to use or it is expressly or impliedly agreed that the Company will use a particular method of providing the Services, the Company will give priority to that method but its adoption remains at the sole discretion of the Company and the Customer authorises the Company to provide the Services by another method.

6. Customer liability

6.1 The Goods are at the risk of the Customer and not of the Company save for liability imposed upon the Carrier or the Company by any legislation or treaty, the Company shall not be responsible in tort, bailment, conversion, contract or any otherwise available action for any loss or damage however caused, arising from the Services, any consequential loss arising from the Services, or any failure to provide or delay in the provision of the Services, or for any loss arising from the actions of its servants or agents whether unintentional or deliberate. Any liability imposed upon the Company or Carrier by the customer shall be limited to the cost of services or the amount prescribed by such legislation or treaty. This Clause shall apply to all, and the consequences of all, such loss of or damage to or deterioration of the Goods or mis delivery or failure to deliver or delay in delivery of the Goods or failure to provide or delay in providing the Services whether or not the same occurs in the course of performance by or on behalf of the Company of the Contract or in events which are in the contemplation of the Company and/or the Customer or in events which are foreseeable by them or either of them or in events which could constitute a fundamental breach or a breach of a fundamental term of the Contract.

6.2 Where any handling, installation, removal, assembly or erection of any kind whatsoever is required to be undertaken by the Company, the Company shall not be liable for any death, injury, loss or damage which may result from or arise out of what the Company undertakes. Further the Customer shall indemnify the Company in respect of any such liability excluding any liability arising from any negligence, mistake or wilful default or omission by the Company its servants or agents.

7. Insurance

The Company does not issue or arrange insurance. Upon request, the Company will provide the Customer with the contact details of insurance companies / brokers so that the Customer can obtain insurance from them directly.

8. Charges

8.1 The Company will provide the Customer with a Tax Invoice(s) setting out the charges for the Services ordered. The Tax Invoice(s) will notify the Customer of the preferred payment method, including any bank details.

8.2 Unless the Customer has a Credit Facility, the Customer must pay all the charges set out in the Tax Invoice on or before the due date for payment.

8.3 Where the Customer has a Credit Facility the Customer must pay the amount due in the Tax Invoice in accordance with the agreed credit terms.

8.4 The charges of the Company shall be considered earned as soon as the Goods are delivered to the Company and, except as required by law, none of those charges will be refunded. The Company may charge by weight, measurement or value and may at any time reweigh, remeasure or revalue or require the Goods to be reweighed, re-measured or revalued and charge proportional additional charges accordingly. Except as required by law, the Customer is and remains responsible to the Company for all its proper charges whether or not the Goods are delivered and/or the Services are provided as instructed and whether or not they are damaged.

8.5 The Customer will indemnify the Company for all charges and liabilities arising in connection with the use of any container or containers including repair costs, cleaning costs and/or detention charges. The Customer’s indemnity will include any reasonable costs, either administrative or legal, incurred by the Company in recovering from the Customer any amounts owing, pursuant to this s indemnity.

8.6 Subject to the terms of the Credit Facility, if any amounts payable under the Agreement (including, without limitation, charges payable for Services provided by the Company) are not paid within seven days of the due date, all amounts due to the Company by the Customer shall immediately and without further notice become due and payable. In addition, the Customer will be in default and without limiting any other rights of the Company, the Customer must pay to the Company, by way of liquidated damages, interest at the default rate of 2 % per month on the amount outstanding calculated from the due date until payment is made in full. The Company may take any legal proceedings or take any action permitted under these Terms to recover amounts owing pursuant to these Terms and the Company may recover all reasonably incurred legal costs in doing so.

8.7 Every special instruction to the effect that charges shall be paid by a person other than the Customer shall be deemed to include a stipulation that if that nominated person does not pay those charges within seven (7) days of delivery or attempted delivery of the Goods, then the Customer shall pay those charges to the Company within seven (7) days of being notified of that person’s failure to pay.

8.8 In the absence of any specific direction by the Customer, the Company may apply any moneys received from the Customer or on the Customers behalf against money owed by the Customer to the Company against such account or Tax Invoice and in such manner or order as the Company chooses in it’s sole discretion.

8.9 The Company may set-off any money it owes the Customer against any money actually or contingently owed by the Customer to the Company. Where the Company is due to make payment to the Customer, the Company can withhold such payment (in full or in part) where the Customer is in breach of its obligations to the Company and such breach has not been remedied to the satisfaction of the Company, acting reasonably.

9. Lien on goods

9.1 Notwithstanding any other rights or recourses available to the Company, the Company shall have a lien upon the Goods transported or to be transported, and on all sub-freights and/or sub-hire, for any amounts due, that have become due, or to become due under this contract, from the Merchant, including general average contributions, costs and expenses (including but not limited to reasonable attorney’s fees of exercising such lien and sale of the Goods as provided herein), and for interest thereon, if any, whether or not such Goods are discharged.  The Company shall also have a lien against the Customer on the Goods and any document relating thereto for all sums due from the Customer to the Company under any other contract whether or not related to this contract. The Company shall have a right to sell, deal with, or dispose of the same by public auction or otherwise in the Company’s complete discretion. If on such sale the proceeds thereof fail to cover the amount of which the Company has a lien on any or all of the Goods, costs and expenses as herein provided, the Company shall be entitled to recover the difference from the Customer.

9.2 The Company’s right to a lien shall persist independently notwithstanding the existence of any other security interest in the Goods pursuant to the PPSA or any other legislation.

10. PPSA

10.1 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 and any documents relating to those Goods, are subject to a continuing lien and security interest in favour of the Company for the payment of all the amounts owed for freight, demurrage, container detention charges, duty, fines, penalties, salvage, average of any kind whatsoever and without limitation and for any at all debts, charges, expenses or any other sums due and owing by the Customer or the Customer’s principals, servants or agents and the performance of any and all obligations owing by the Customer to the Company. Further, the continuing security interest shall cover all the costs and expenses of exercising the lien, including the costs of a public or private sale or auction, including legal and administration costs.

10.2 For the purpose of these Terms 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 any subcontractors, servants or agents, and whether or not the Company is in possession of any documents of title relating to the Goods. The Customer and the Company agree that the Company has possession of the Goods within the meaning of section 24 of the PPSA even if the Goods are in possession of the Company’s subcontractor’s servants or agents.

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

10.4 The Customer will immediately inform the Company if any Insolvency Event occurs with respect to the Customer. The Customer shall not change its name or other details without first notifying the Company in writing with at least 14 days’ notice before such change takes effect.

10.5 The Customer will not:

(a) permit to subsist any other security interest in relation to the Goods which would rank ahead of the Company’s interests or;

(b) except in the normal course of the Company’s business, sell, lease or dispose of, or permit the sale, lease or disposal of the Goods. Where such Goods are sold in the normal course of the Company’s business, the proceeds of such sale are held on trust for the Company as security for the payment of money and performance of obligations owed by the Customer to the Company.

10.6 In addition to any rights that the Company has under the PPSA the Company shall have the right, as the Customer’s agent, at any time while any amount owing by the Customer to the Company under the Contract remains outstanding, to enter into the premises where the Goods are stored and remove them without being responsible for any damage caused in exercising this right (except where such damage arises from any negligence, mistake or wilful default or omission by the Company its servants or agents). The Customer shall indemnify the Company for all such monies and all such reasonable costs, charges, and expenses incurred in repossessing the Goods.

10.7 The Customer and Company agree pursuant to section 115 of the PPSA to contract out of sections 95, 96, 120, 121, 123 and 125 and, to the extent permitted by law, Divisions 3 and 4 of the PPSA and the requirement to provide any verification statements.

11. Claims and liability

11.1 Any claim for loss or damage must be notified in writing to the Company within seven (7) days of the later delivery of the Goods or of the date upon which the Goods should have been delivered.

11.2 The Company shall be discharged from all liability whatsoever in connection with the services and/or the Goods if the Customer does not give written notice of damage or loss within seven (7) days of the delivery of the Goods or of the date upon which the Goods should have been delivered except where a delay in providing written notice arises from any negligence, mistake or wilful default or omission by the Company its servants or agents.

11.3 In any event the Company shall be discharged from all liability whatsoever in connection with the provision of the Services and/or the Goods unless suit is brought and notice of such suit given within twelve (12) months of the provision of the Services or delivery of the Goods or when the Services should have been provided or the Goods should have been delivered.

11.4 To the full extent permitted by law, the Company and its subcontractors, servants, and agents shall not be responsible for loss or damage of any kind whatsoever or howsoever arising out of the provision of its Services to the Customer (except for any negligence, mistake or wilful default or omission by the Company its servants or agents). The Customer further agrees to indemnify the Company in respect of any claims made by any party, including but not limited to any sub-contractor or third party concerning the provision of Services by the Company.

11.5 The Company shall not be liable in any event for any special, incidental, or consequential damages, including, but not limited to, loss of profits, income, utility, interest, or loss of market, whether or not the Company had knowledge that such damage might be incurred.

11.6 The Customer acknowledges that Goods moving by sea freight are subject to the applicable international treaties including the International Convention for the Unification of Certain Rules relating to Bill of Lading signed at Brussels on August 25, 1924 (the Hague Rules), or those rules as amended by the Protocol signed at Brussels on February 23, 1968 (the Hague Visby Rules) and the SDR Protocol (1979) or, if applicable, the United States Carriage of Goods by Sea Act 46 U.S.C. Under the Hague-Visby Rules, the Carrier’s liability is limited to 666.67 Special Drawing Rights of the International Monetary Fund (SDRs) per package or 2 SDRs per kilogram, whichever is higher. If the United States Carriage of Goods by Sea Act 46 U.S.C. applies to the contract evidenced by this bill of lading, the Carrier’s liability is limited to USD 500 per package, or for Goods not shipped in packages, per customary freight unit. Each unpackaged vehicle or other piece of unpackaged cargo on which freight is calculated constitutes one customary freight unit. However, if any mandatory applicable laws provide compulsorily for different limits of liability, those different limits will apply. The Customer’s recovery of any loss or damage is against the sea freight Carrier and is limited in accordance with these or any other conventions that may be applicable. In the event of any loss or damage suffered by the Customer whilst the Goods are in the possession of the sea freight Carrier, the Company will seek to recover on behalf of the Customer from the carrier amounts payable by these conventions as they are applicable. The Customer will indemnify, defend and hold the Company harmless against any claims for loss or damage to their goods incurred whilst they were in the possession of the sea freight Carrier.

11.7 The Customer acknowledges that Goods moving by airfreight are subject to the applicable international treaties including the Convention for the Unification of Certain Rules relating to International Carriage by Air, signed in Montreal in 1999 (Montreal Convention). If Goods are lost or damaged while in the possession of the airline Carrier, the airline Carrier’s liability is limited to the maximum amounts of liability applicable at any time, as set out in the Montreal Convention with subsequent increases. However, if any mandatory applicable laws provide for different limits of liability, those different limits will apply. The Customer’s recovery of any loss or damage is against the airline carrier and is limited in accordance with these or any other conventions that may be applicable. In the event of any loss or damage suffered by the Customer whilst the Goods are in the possession of the airline carrier, the Company will seek to recover on behalf of the Customer from the principal airline Carrier amounts payable by these conventions as they are applicable. The Customer will indemnify, defend and hold the Company harmless against any claims for loss or damage to their Goods incurred whilst they were in the possession of the airline carrier.

11.8 It is agreed that if any provision or any part of any provision of these Terms is unenforceable such unenforceability shall not affect any other provision or any other part of such provision.

11.9 The liability of the Company arising out of any one incident not occurring during, and is not ancillary to, transport or storage for breach of any guarantees under the Competition and Consumer Act 2010 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:

(a) the supplying of the Services again; or

(b) the payment of the cost of having the Services supplied again; or

(c) the value of the Goods the subject of these Terms at the time the Goods were received by the Company.

12. Force majeure

Any obligation of the Company is suspended for the time and to the extent that the Company is prevented from or delayed in complying with that obligation by a Force Majeure Event.

13. Governing law

The Agreement is governed by Australian law. Any dispute, controversy, or claim arising out of, relating to, or in connection with these Terms shall be resolved by arbitration in accordance with the ACICA Expedited Arbitration Rules. The seat of arbitration shall be Sydney, Australia. The language of the arbitration shall be English. The arbitration Tribunal is to consist of three arbitrators, one arbitrator to be appointed by each party and the two so appointed to appoint a third arbitrator.

14. GST

14.1 This clause 14 applies if the Company is or may become liable to pay GST in relation to any Supply under these Terms.

14.2 Unless otherwise stated, all charges quoted are exclusive of the GST imposed under the GST Law;

14.3 The Customer shall be responsible for payment of any GST liability in respect of the Services as provided by the Company or by third parties or Sub-contractors which shall be payable at the same time as the GST-exclusive consideration;

14.4 The Customer must also pay GST on the Taxable Supply to the Company, calculated by multiplying the GST exclusive consideration by the GST Rate.

14.5 GST shall be payable by the Customer without any deduction or set-off for any other amount at the same time as the GST exclusive consideration is payable. The Company agrees to provide the Customer with a Tax Invoice to enable the Customer to claim Input Tax Credits.