STANDARD TERMS AND CONDITIONS 2018
1. Definitions
Agreement means these Terms and Conditions, together with any Authority and Customer credit
application.
Authority means the authority by which the Customer appointed the Company to act on its
behalf.
Company means Powerhouse Logistics Pty Ltd ABN 50 050 065 631 and its nominees;
Pj’s Customs Brokers & Logistics, Scorpion International, agents and employees.
Connected Party means in relation to the Goods the Owner, exporter, importer, supplier,
purchaser, carrier or any agent of any of the aforementioned parties, other than the Company.
Consequential Loss means any loss or damage which:
(a) does not arise naturally or in the usual course of things; or
(b) constitutes, or arises from or in connection with, a loss in revenue, profit or
opportunity or a loss of goodwill or business reputation, even if such loss or
damage arises naturally or in the usual course of things.
Customer means:
(a) Where there is an Authority, the customer named in the Authority, including its
employees, officers, agents and contractors.
(b) Where there is no Authority, the person instructing the Company to provide the
Services; and
for the avoidance of doubt, the Customer may also be the Owner.
Dangerous Goods means any Goods which are, or may become, hazardous, volatile, explosive,
flammable, radioactive, likely to harbour or encourage vermin or pests, or capable of posing a
risk or causing damage to any person or property.
Goods means the goods, including packaging, pallets or containers, the subject of the Services.
Government Authority means any government agency, authority, department or body,
exercising jurisdiction in any nation, state, port or airport.
Law means any law, regulation, rule or international convention.
Loss means any loss, cost, damage, expense, claim, demand, action, proceeding or liability of
any kind, (including legal costs on an indemnity basis) and whether actual, prospective or
contingent and whether ascertained or unascertained.
Owner means the owner or importer of the Goods, or a person authorised to act on behalf of the
owner or importer of the Goods.
Perishable Goods means any Goods liable to waste, deterioration or spoilage, and includes
without limitation fruit, vegetables, dairy products, meat, and animals.
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PPSA means the Personal Property Securities Act 2009 (Cth).
Services means the work performed by the Company in relation to the Goods, including
facilitating the import, export, transport, or storage of the Goods; and any ancillary acts for those
purposes, including preparing any documentation or providing any information to a Government
Authority.
SBC 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 2010
(Cth), but does not include:
(a) a contract of marine salvage or towage; or
(b) a charterparty of a ship;
(c) a contract for the carriage of goods by ship; or
(d) a "small business contract" where the Customer does not employ fewer than
20 persons
Subcontractor means:
(a) a third party (and their employees, agents and contractors); and
(b) the employees, servants and agents of the Company;
engaged to provide all or part of the Services.
Terms and Conditions means these terms and conditions.
Transport Document includes a bill of lading, waybill, consignment note, or similar carriage
document.
2. General
2.1 The Company is not a common carrier. The Company will not be liable as a common
carrier.
2.2 These Terms and Conditions take priority over and will prevail to the extent of any
inconsistency with the Authority, any credit application made by the Customer, the
Customer's terms and conditions, and any terms and conditions set out in any Transport
Document.
2.3 The Agreement is governed by the laws of New South Wales, Australia. The Company
and the Customer submit to the jurisdiction of the courts of New South Wales and of the
Federal Court of Australia.
2.4 A variation of these Terms and Conditions will only be valid if in writing and signed by
each party or signed by a person with the authority to bind each party.
2.5 The Company may assign its rights and obligations under the Agreement without the
Customer's consent. The Customer must not assign its rights and obligations under the
Agreement without the Company's written consent.
2.6 Any notices under these Terms and Conditions must be in in English and in writing.
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2.7 Subject to clause 14, all rights, indemnities and limitations of liability contained in these
Terms and Conditions will have their full force and effect, despite:
(a) any breach of term of condition of these Terms and Conditions, the
Agreement, or any collateral agreement by the Company;
(b) the performance of the Services;
(c) the delivery of the Goods; or
(d) the expiry or termination of the Authority.
2.8 Without limiting the effect of clause 2.7, clauses 2.5, 3.14, 4.2, 6.10, 7.3, 7.4, 7.5, 9, 11,
12, 13, 14.6, 14.8, 14.9, 14.10, 14.11, 14.12, and 14.13 of these Terms and Conditions
will survive termination.
3. Services
3.1 Services are provided by the Company subject to these Terms and Conditions.
3.2 Without limitation to other methods of acceptance, by instructing the Company to
provide the Services the Customer agrees to be bound by the Terms and Conditions.
3.3 The Goods are at the risk of the Customer.
3.4 The Company may agree or refuse to provide Services at its discretion.
3.5 The Company is authorised by the Customer to choose the method for performance of
the Services at the Company's complete discretion.
3.6 The Customer authorises the Company to open any package containing Goods, and do
any other thing in order to inspect or weigh the Goods.
3.7 The Customer agrees that:
(a) the value of the Goods will not be declared or inserted into a Transport
Document or contract for the purpose of extending a carrier's liability unless
the Customer provides express written instructions to the Company to do so,
and if required, the carrier agrees;
(b) where a Subcontractor's or carrier's charges may be determined by the extent
of liability assumed by the Subcontractor or carrier, no declaration of value will
be made for the purpose of extending the liability of the Subcontractor or
carrier, and the Goods will be dealt with at the Customer's risk for minimum
charges, unless the Customer provides written instructions to the contrary to
the Company;
(c) the Company reserves the right to not make any declaration or take any action
in respect of the Customer's Goods unless the Customer has provided the
Company with sufficient notice, written instructions and the documents
necessary to take that action in relation to those Goods.
3.8 At any time, the Company may, acting reasonably, deem that certain Goods are
Dangerous Goods.
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3.9 The Company at its reasonable discretion may destroy or otherwise deal with any
Goods the Company considers are Dangerous Goods, without notice or compensation
to the Customer.
3.10 The Company's delivery obligations are satisfied if the Company delivers the Goods to
the delivery address instructed by the Customer, and a person at that address provides
a receipt or signs a delivery docket, or if authorised by the Customer, the Goods are left
at the delivery address without obtaining a receipt or signed delivery docket.
3.11 If a person at the delivery address cannot or refuses to take delivery of the Goods, or
the Goods cannot be delivered for any other reason, the Customer authorises the
Company to deal with the Goods at the Company's reasonable discretion, including
storing, disposing of, or returning the Goods.
3.12 The Goods may be stored at any place at the absolute discretion of the Company at the
Customers' expense.
3.13 If the Company stores the Goods, the Company may require that the Customer remove
the Goods from storage by giving notice delivered to an address provided by the
Customer to the Company.
3.14 If the Customer, Owner or consignee of the Goods is insolvent, placed under external
administration, bankrupt or deceased, the Company is authorised to return any Goods
to the Shipper, exporter or supplier of those Goods, where the Company has not
received authority from the Shipper, exporter or Supplier of the Goods to release the
Goods to the Customer, Owner or consignee.
3.15 The Customer irrevocably appoints the Company with the power and authority to take
any action and execute any document in the name of and on behalf of the Customer as
required by the Company to provide the Services.
4. Customer Obligations
4.1 The Customer will provide the Company with all assistance, information and
documentation necessary to enable the Company to provide the Services, and
punctually comply with any Law or request from a Government Authority.
4.2 The Customer is under a continuing obligation to provide any information which may
materially affect the capacity of the Customer to perform its obligations under the
Agreement. The Customer will keep confidential the Company's fees or charges and
any waiver, discount, release or indulgence provided by the Company in relation to the
provision of the Services.
5. Instructions
5.1 Any instructions given by the Customer must be in writing.
5.2 The Company has the discretion to refuse to accept the Customer's instructions.
5.3 Sufficient notice of instructions must be given by the Customer to the Company to
enable the Company to follow those instructions. If insufficient notice is given and the
Company attempts to adopt the Customer's instructions, the Company is not deemed to
have accepted the instructions.
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5.4 If the Company accepts the Customer's instructions on one occasion, the Company will
not be bound by those instructions when providing Services in the future.
5.5 If the Company accepts the Customer's instructions to perform the Services in a
particular way, it will give priority to that method, but may depart from that method at its
reasonable discretion.
6. Fees
6.1 The Company's fees are earned on the earlier of the commencement of the
performance of the Service (or part thereof), or when the Goods are delivered to the
Company or its subcontractors.
6.2 The Company's fees can include any disbursements and other amounts that the
Company is required to pay third parties in connection with the Services. The Company
at its discretion may vary its fees if the amount of any such disbursements change.
6.3 The Company's fees must be paid within 7 days of an invoice or as otherwise agreed in
writing (the Due Date).
6.4 The Company at its discretion may determine its fees, including by weight,
measurement or value.
6.5 The Company may re-weigh, re-measure or re-value the Goods at any time, and amend
its fees at its reasonable discretion.
6.6 Any information contained in a quotation provided by the Company in relation to the
fees applies to the specific item, weight and volume quoted, designated Services and
standard of Services, and is only valid until the earlier of 14 days after being provided,
the quote being withdrawn or the quote expiring.
6.7 A quotation is not an offer and is not binding on the Company. A quotation may change
based on changes to freight, insurance, warehousing, fees, and any other charges, with
or without notice to the Customer.
6.8 Unless otherwise stated, the Company's fees are exclusive of goods and services tax.
6.9 The Customer remains responsible for the payment of fees:
(a) even where an arrangement is made for the fees to be paid by another person;
(b) whether or not the Goods are delivered or damaged or the Services performed
as instructed.
6.10 If the fees are not paid in full within 7 days of the Due Date then, without limitation to its
rights, the Company may charge interest on the late payment at the published business
overdraft rate of the Commonwealth Bank of Australia.
7. Subcontractors
7.1 The Customer authorises the Company to:
(a) subcontract all or part of the Services to a Subcontractor; and / or
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(b) as the agent of the Customer, contract with a third party service provider on
behalf of the Customer.
7.2 The Customer authorises a Subcontractor to subcontract all or part of the Services.
7.3 All exclusions or limitations on the liability of the Company in these Terms and
Conditions extend to protect:
(a) all Subcontractors;
(b) the agents, employees and servants of any Subcontractor or the Company;
and
(c) any person engaged to provide all or part of the Services.
7.4 The Customer undertakes that it will not make any claim against, or impose any liability
upon, any Subcontractor in connection with the provision of the Services or the Goods.
7.5 The Customer undertakes that it will indemnify any Subcontractor from and against any
Loss if a claim is made against a Subcontractor by any party (including the Customer) in
connection with the provision of the Services or the Goods.
7.6 For the purpose of clauses 7.3 and 7.5, the Company acts as trustee on behalf of and
for the benefit of any Subcontractor, and to this extent each Subcontractor is deemed to
be a party to this Agreement.
8. Intellectual Property
The Customer agrees that the Company retains all copyright and intellectual property subsisting
in all documents and things created by, or for, the Company in connection with the performance
of the Services, including copyright and intellectual property that now exists or that later comes
into existence.
9. Warranties, liability and indemnity
9.1 The Customer (on behalf of itself, the Owner, and any Connected Parties) warrants to
the Company that:
(a) it is the owner of the Goods, or is the authorised agent of the owner of the
Goods;
(b) it enters into the Agreement on its own behalf, or in its capacity as the
authorised agent of the owner of the Goods;
(c) it and all Connected Parties have complied with all Laws relating to the Goods,
including the nature, condition, packaging, handling, storage and carriage of
the Goods;
(d) in engaging the Services from the Company, it will not procure the Company to
perform any act in breach of any Laws;
(e) it will observe all Laws and requirements of Government Authorities;
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(f) all information and documentation provided by the Customer and Connected
Parties to the Company is accurate and complete, and it or a Connected Party
has not omitted to provide any requested or material information;
(g) the Goods are packed to endure the ordinary risks of handling, storage and
the Services, having regard to the nature of the Goods; and
(h) the Goods are not Dangerous Goods, unless the Company has agreed in
writing to provide the Services in respect of those particular Dangerous Goods,
and in which case, warrants that it has made full disclosure of Dangerous
Goods.
9.2 To the extent permitted by Law, the Company excludes all liability in respect of any
claim made against the Company, its employees, agents and Subcontractors, including
without limitation, liability for fundamental breach of contract, or a negligent, unlawful,
reckless or wilful act or omission.
9.3 The Company will not be liable for omitting to inspect or take any other action in respect
of Goods where Goods have been damaged or pillaged, unless the Customer provides
the Company with written instructions to take that action in relation to those Goods and
the Company accepts those instructions.
9.4 Where the liability of the Company is not excluded by the Agreement, Law or otherwise,
the liability of the Company is limited to the lesser of Australian $100 or the value of the
Goods at the time the Goods were received by the Company.
9.5 The Company will not be in breach of any of its obligations to the Customer or liable for
any Loss (including Consequential Loss) suffered by the Customer arising from or
connected with the Company's compliance with any Law, including without limitation
disclosing confidential information to a Government Authority.
9.6 Without limitation to any other clause of the Agreement, the Company will be
discharged from all liability in connection with the performance of the Services or the
Goods unless:
(a) notice of any claim is received by the Company within 7 days of the earlier of
the delivery of Goods, the date the Goods should have been delivered, or
where the claim does not relate to loss or damage to Goods, the event giving
rise to the claim; and
(b) suit is brought and written notice is received by the Company within 9 months
of the earlier of the delivery of the Goods , the date the Goods should have
been delivered, or where the claim does not relate to loss or damage to
Goods, the event giving rise to the claim.
9.7 The Company will not be liable for any delay or failure to perform an obligation under
the Agreement caused by an event beyond the control of the Company (Event).
9.8 If an Event causes a delay in the performance of a Company's obligation exceeding 10
days, the Company may terminate the provision of the Services by notice to the
Customer.
9.9 The Customer indemnifies the Company from and against (and must pay on demand
for) all Loss arising directly or indirectly from or in connection with the Goods or the
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performance of the Services (including Consequential Loss), including Loss in
connection with a breach of contract, or a negligent, unlawful, reckless or wilful act or
omission by the Company or its employees, agents and contractors.
9.10 Without limitation to clause 9.9 the Customer indemnifies the Company from and
against (and must pay on demand for) any Loss arising from the Customer's or Owner's
failure to return any container or transport equipment involved in the performance of the
Services by the date required under any Contract between the Company and the
supplier of that container or transport equipment.
9.11 The Customer indemnifies the Company from and against (and must pay on demand
the amount of) all duty, GST, and any other fees and taxes incurred in connection with
the Goods payable to a Government Authority.
9.12 The Customer indemnifies the Company from and against (and must pay on demand
for) all costs payable to third parties in relation to the carriage, storage, treatment or
entry of the Goods.
9.13 The indemnities in clauses 9.9, 9.10, 9.11 and 9.12 continue whether or not the Goods
are pillaged, stolen, lost or destroyed.
10. Insurance
10.1 On request by the Customer, the Company at its complete discretion may arrange
insurance in respect of the Goods.
10.2 Without limitation to clause 10.1, the Company will not arrange insurance in respect of
the Goods, unless the Customer provides:
(a) written instructions to the Company to arrange insurance; and
(b) a written declaration of the value of the Goods;
before the Goods are delivered to the Company.
10.3 Any insurance will be at the expense of the Customer and the Company may charge
the Customer a fee for arranging the insurance.
10.4 Any insurance arranged by the Company is subject to the exceptions and conditions of
the insurer or underwriter taking the risk.
10.5 When arranging insurance in respect of the Goods, the Company has the discretion to
name the Customer as the insured.
10.6 If a dispute arises relating to liability under an insurance policy arranged by the
Company, the Customer will have recourse against the insurer or underwriter only.
10.7 The Company will not be liable for any insurance arranged in relation to the Goods.
11. Lien
11.1 The Company has:
(a) a particular and general lien on all Goods and documents relating to the
Goods; and
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(b) a right to sell those Goods and documents by public auction or private sale (at
the Company's discretion) without notice and apply the proceeds of sale;
in respect of all sums due and owing from the Customer.
11.2 The lien will also cover the Company's costs and expenses relating to the exercise of its
lien and right of sale, including the Company's reasonable legal fees.
11.3 For the purposes of the lien, the Company will retain constructive possession of the
Goods and the lien and rights granted by this clause will survive delivery of the Goods.
The Company is entitled to retain the proceeds of sale of the Goods in respect of all
sums due and owing from the Customer.
12. PPSA
12.1 Terms used in clause 12 that are defined in the PPSA have the same meaning as in the
PPSA.
12.2 Without limitation to other rights of the Company, from the time the Goods are in the
possession of the Company or a Subcontractor, the Goods are subject to a continuing
security interest in favour of the Company for the payment of all amounts due and
owing by the Customer under the Agreement.
12.3 The Customer acknowledges and consents to the Company's registration and
perfection of the Company's security interest under the Agreement for the purposes of
the PPSA.
12.4 The Customer will not grant a security interest to another person, or allow any
encumbrance to arise, in respect of the Goods.
12.5 To the extent permitted by law, the Customer irrevocably waives any right it may have
to:
(a) receive notices or statements under sections 95, 118, 121(4), 125, 130,
132(3)(d) or 132(4) of the PPSA; and
(b) redeem the Goods under section 142 of the PPSA;
(c) reinstate this Agreement under section 143 of the PPSA; and
(d) receive a verification statement.
12.6 The Customer will do all things and execute all documents reasonably necessary to
give effect to the security interest created under this Agreement or comply with any
reasonable request by the Company in connection with the PPSA.
13. Uncollected goods
13.1 The Company may at its discretion sell or otherwise dispose of Perishable Goods
without notice to the Customer where the Goods are not collected immediately upon
arrival, are insufficiently or incorrectly addressed or are not identifiable.
13.2 Without limitation to clause 13.1, the Company may at its discretion sell or return Goods
that cannot be delivered because they are insufficiently or incorrectly addressed, are
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not identifiable, or are uncollected or not accepted after 21 days' notice to the
Customer.
13.3 Where the Company sells Goods under clauses 11, 13.1 or 13.2;
(a) it does so as principal, not as agent, and is not the trustee of the power of sale;
(b) the Customer must pay all costs, charges and expenses incurred by the
Company in connection with the storage, sale or return of the Goods, which
may be deducted from the proceeds of the sale of the Goods;
(c) the Company is entitled to recover any deficit from the Customer where the
proceeds of sale of the Goods do not satisfy the amounts payable to the
Company.
14. SBC Contracts
If the Agreement is a SBC Contract, then:
14.1 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).
14.2 Clause 2.5 is modified, so that neither party may assign its rights or obligations under
the Agreement without the written consent of the other party, which consent must not be
unreasonably withheld.
14.3 Clause 3.12 is amended so that "absolute" is replaced with "reasonable".
14.4 Clause 6.1 is modified, so that the fees are earned when the corresponding Service is
performed or attempted to be performed, or where applicable, the corresponding
disbursement is incurred.
14.5 If a variation to a quote or fee under clauses 6.4 or 6.5 is material, where it is
reasonably practical, the Company shall give notice to the Customer of that variation.
14.6 If the Customer objects to a variation to a quote or fee under clauses 6.4 or 6.5, 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.
14.7 Clauses 7.4 and 7.5 are modified, so that the Customer:
(a) may make a claim against or impose liability upon any Subcontractor; and
(b) 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 Subcontractor.
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14.8 Clause 9.2 is modified so that the Company's liability is not excluded to the extent that it
was directly caused by or in connection with a a grossly negligent, unlawful, or wilful act
or omission by the Company or its employees, agents and contractors.
14.9 Clause 9.4 is modified so that the Company's liability is limited to the lesser of the actual
loss suffered by the Customer or the value of the Goods at the time the Goods were
received by the Company.
14.10 Clause 9.6 does not apply, and, without limitation to any other clause of the Agreement,
the Company will be discharged from liability in relation to any claim:
(a) where the loss to the Customer results from the act of a Subcontractor; and
(1) the Company's right to make a claim against that Subcontractor is
subject to time limitations; and
(2) 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
(b) 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.
14.11 The Customer is not required to indemnify the Company under clause 9.9, unless the
Loss was caused by or in connection with a breach of contract, or a negligent, unlawful
reckless or wilful act or omission by the Customer or its employees, agents and
contractors.
14.12 The Company will not be liable for Consequential Loss or indirect Loss, unless the
Company had actual knowledge that such loss might be incurred.
14.13 Clause 11.1(b) 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.