NC Exports International Trade and Distribution

A Division of Nicoldson Investments Pty Limited

1. These conditions shall be governed by and construed in accordance with the laws of the State of Queensland, Australia.

2. These terms and conditions must be read having regard to the provisions of the Trade Practices Act to the extent that those provisions are applicable to consumers as defined under section 4B of that Act.

3. These terms and conditions do not have the effect of excluding, restricting or modifying rights under that Act, which cannot be excluded, restricted or modified by agreement.

4. All and any business undertaken by NC Exports International Trade and Distribution (hereinafter called “NC Exports”) is transacted subject to these conditions, each of which shall be deemed to be incorporated in, and to be a condition of, any agreement between the NC Exports and its customers.

5. NC Exports only deals with goods subject to these conditions.

6. NC Exports is not a common carrier and shall accept no liability as such.

7. NC Exports, at its sole and absolute discretion, may refuse to deal with any goods without assigning any reason therefore.

8. Any instructions given to NC Exports may, at the absolute discretion of the NC Exports, be complied with by NC Exports as an agent for the customer, as disclosed principal, or by NC Exports as principal contractor, by its own servants performing part or all of the relevant services, or by NC Exports employing or instructing or entrusting the goods to others, on such other conditions as they may stipulate to perform part or all of the services. The customer shall be bound by such other conditions and shall release NC Exports from liability and indemnify NC Exports against any claims arising out of their acceptance.

9. Customers entering into transactions of any kind with NC Exports expressly warrant that they are either the owners, or, the authorised agents of the owners, of any and all goods or property which are the subject matter of the transaction. By entering into the transaction they accept these conditions for themselves, and for all other parties on whose behalf they are acting, and they warrant that they have authority so to do.

10. Subject to express instructions in writing, given by the customer and by NC Exports, NC Exports reserves to itself complete freedom of choice of means, route, and procedure, to be followed in the handling and transportation of goods. If in NC Exports’ opinion it is necessary, or desirable, in the customer’s interests to depart from any express instructions, NC Exports shall be at liberty to do so.

11. Except where NC Exports is instructed in writing to pack the goods, the customer warrants that all goods have been properly and sufficiently packed and/or prepared.

12. NC Exports is entitled to retain and be paid all brokerages, commissions, allowances and other remunerations retained by, or paid to Ship Forwarding Agents (or Freight Forwarders) and Insurance Brokers.

13. Quotations are given on the basis of immediate acceptance and subject to the right of withdrawal before acceptance and revision after acceptance. If any changes occur in the rates of customs, duty, freight, warehousing, insurance premiums or other charges applicable to the goods, quotations and charges shall be subject to revision accordingly with or without notice.

14. The customer, and the senders, owners and consignees of any goods and their agents, if any, shall be deemed to be bound by, and to warrant the accuracy of all descriptions, values and other particulars furnished to NC Exports for customs, Consular, and other purposes, and shall jointly and severally indemnify NC Exports against all losses, damages, expenses and fines, arising from any inaccuracy, or omission, even if such inaccuracy or omission is not due to any negligence, wilful act or omission.

15.The customer and the senders, owners and consignees and their agents, if any, shall be jointly and severally liable for any duty, tax, impost, excise, levy, penalty, deposit or outlay, of whatsoever nature, levied by any Government or the authorities at any port or place in connection with the goods and for any payments, fines, expenses, loss or damage incurred or sustained by NC Exports in connection therewith, and shall indemnify NC Exports, its servants and agents from all claims by third parties, howsoever arising, in connection with the goods.

16. When 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.

17. The Customer shall indemnify the NC Exports against any claim, liability or expense which arises as a result of delay in loading or unloading of the Customer’s Goods, or any waiting time, detention or demurrage for any truck or any other conveyance whatsoever.

18.All prices quoted by NC Exports are:

19. Exclusive of Australian Goods and Services Tax (Ex GST), unless otherwise stated;

• In Australian Dollars (A$; AUD.);
• All prices are subject to change without notice;
• Pricing to be confirmed at the time of invoicing;
• Back orders are only accepted at the discretion of NC Exports;
• Shipping costs at point of origin are the responsibility of the Customer;
• Any additional costs incurred at the point of embarkation, such as port loading delays will be subsequently passed on to the customer.
• Exclude insurance of any type.  All Freight Forward delivery terms are deemed Ex Works. It is the customer's responsibility to arrange insurance for all goods in transit.
• NC Exports’ charges to customers, including freight shall be deemed fully earned on receipt of the goods by NC Exports and shall be paid and non-returnable in any event, cargo lost or not lost or a voyage or flights 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 and the senders, owners and consignees.

20.All unpaid charges shall be paid in full and without any offset, counterclaim or deduction, in the currency of the place of receipt of the goods or at NC Exports’ option, in the currency of the place of delivery at the TT selling rate in effect on the day of payment. If the date determined above falls on a day which banks are closed for business, the rate ruling on the next succeeding business day shall govern.

21. NC Exports’ charges including freight have been calculated on the basis of particulars furnished by, or on behalf of the customer. NC Exports may at any time open any container or any other package or unit in order to re-weigh, re-measure or re-value the contents and if the particulars furnished by or on behalf of the customer are incorrect, it is agreed that a sum equal to either five times the difference between the correct freight and the freight charged, or double the correct freight less the freight charged, whichever sum is smaller, shall be payable as liquidated damages to NC Exports.

22.No insurance will be effected by NC Export, except upon express instructions as to the risks to be insured against and the value or values to be declared in writing by the customer and all insurances effected by NC Exports subject to the usual exceptions and conditions of the policies of the insurance NC Exports or underwriters accepting the risk. NC Exports shall not be under any obligation to effect a separate insurance on each consignment but may declare it on any open or general policy. Should the insurers dispute their liability for any reason the insured shall have recourse against the insurers only and NC Exports shall not be under any responsibility or liability in relation thereto, notwithstanding that the premium upon the policy may not be at the same rate as that charged by NC Exports or paid to NC Exports by its customer.

23. NC Exports shall not be liable:

• (a) for loss of or damage to goods unless such loss or damage occurs whilst the goods are in the actual custody of NC Exports and under its actual control and unless such loss or damage is due to the wilful neglect or default of NC Exports or its own servants;
• (b) for any delay in delivery, forwarding or transit or failure to deliver goods, any deterioration, contamination, evaporation or any consequential loss or loss of market however caused;
• (c) for failure to follow instructions given to it by or on behalf of the customer whether or not such failure is wilful;
• (d) for any damage or expense arising from or in any way connected with marks, numbers, brands, contents, quality or description of any goods;
• (e) for loss or damage resulting from fire, water, explosion or theft whether caused by negligence of NC Exports’ servants or otherwise.

24. NC Exports shall not be liable under any circumstances for loss or damage resulting from or attributable to any quotation, statement, representation or information whether oral or in writing howsoever, wheresoever or to whomsoever made or given by or on behalf of NC Exports or by any servant, employee or agent of NC Exports as to the classification of the liability for or the amount, scale or rate of customs and/or excise duty or other impost, tax or rate applicable to any goods or property whatsoever.

25. NC Exports does not accept responsibility or liability in relation to any decision taken or liability incurred on the basis of any such quotation, statement, representation or information.

26. Liability of NC Exports arising out of any one incident whether, or not there has been any declaration of value of the goods, for breach of warranty implied into these terms and conditions by the Trade Practices Act 1974 or howsoever arising, is limited to any of the following as determined by the NC Exports:

• (a) the supplying of the services again; or
• (b) the payment of the cost of having the services supplied again; or
• (c) the lesser of A$200.00 for loss of or damage to any such goods, packages or units or A$2.00 per kilogram of the gross weight for loss of or damage to any such goods, packages or units or A$20.00 per package or unit lost or damaged.
• (d) For the purposes of this clause the word “package” shall include the contents even if particulars have been provided or incorporated in any document of the NC Exports.

27. NC Exports shall be discharged of all liability unless suit is brought in the proper forum and written notice thereof received by NC Exports within six months after delivery of the goods or the date when the goods should have been delivered. In the event that the said time period shall be found contrary to any Convention or law compulsorily applicable the period prescribed by such Convention or law shall then apply but in that circumstance only.

• (a) 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 owners’ liability under Article IV Rule 5(a) of Schedule 1 of the Carriage of Goods by Sea Act 1991 except upon express instructions given in writing by the customer.
• (b) In the case of Carriage by Air, no optional declaration of value to increase the Air Carriers liability under the Carriage by Civil Aviation (Carrier’s Liability) Act 1959, Article 22(2) of Schedule 1 as amended by Schedule 2 will be made except upon express instructions given in writing by the customer.
• (c) 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 value (where optional) will be made for the purposes of extending liability and goods will be forwarded or dealt with at owners risk or other minimum charges unless express instructions in writing to the contrary are given by the customer.
• (d) Instructions to collect payment on delivery (COD) in cash or otherwise are accepted by NC Exports upon the condition that NC Exports in the matter of such  collection will be liable for the exercise of reasonable diligence and care only.

28. Pending forwarding and delivery, goods may be warehoused or otherwise held at any place or places at the sole discretion of NC Exports at the customers or owner’s risk and expense.

29.All goods and documents relating to goods shall be subject to a particular and general lien for moneys due either in respect of such goods or any particular or general balance of other moneys due from the customer, the senders, owners or consignee to NC Exports. If any moneys due to NC Exports are not paid within one calendar month after notice has been given to the person from whom the moneys are due that such goods are detained, they may be sold by auction or otherwise at the sole discretion of NC Exports and at the expense of such person and the proceeds applied in or towards satisfaction of such particular and general lien.

30. By entering into any agreement to which these conditions apply, the customer on his own behalf and as agent of the owner, sender and consignee agrees and further offers to limit the liability of all servants, employees and agents of NC Exports in respect to the goods and subject to the agreement to the extent that each such servant, employee and agent shall be protected by and entitled to the full benefit of all provisions in these conditions excluding or restricting tortious liability of any kind;

31. The offer hereinbefore referred to shall be accepted by the act of each such servant employee or agent in performing any function in relation to or affecting the goods the subject of the agreement;

32. For the purposes of the foregoing provisions of this clause NC Exports is and shall be deemed to be acting as agent on behalf of and trustee for the benefit of all persons who are or become its servants employees or agents from time to time and all such persons shall to this extent be and be deemed to be parties to the agreement concerned.

33 In addition to and without prejudice to the foregoing Conditions the customer undertakes that it shall in any event indemnify NC Exports against all liabilities suffered or incurred by NC Exports arising directly or indirectly from or in connection with the customer’s instructions or their implementation or the goods including containers and in particular the customer shall indemnify NC Exports in respect of any liability it may be under to any servant, agent or sub-contractor, or any haulier, carrier, warehouseman, or other person whatsoever at any time involved with the goods arising out of any claim made directly or indirectly against any such party by the customer or by any sender, consignee or owner of the goods or by any person interested in the goods or by any other person whatsoever.

34. Without prejudice to any other Condition, NC Exports shall have the right to enforce any liability of the customer under these conditions or to recover any sums to be paid by the customer under these conditions not only against or from the customer but also if it thinks fit against or from the sender and/or owners and/or consignees of the goods.

35. The use of a customer’s own form shall in no way derogate from these conditions the whole of which shall, notwithstanding anything contained in any such form, constitute terms of the agreement so entered into. Any provision in any such form which is contrary to any provision of these Conditions shall to the extent of such inconsistency be inapplicable.

36. The goods shall be deemed to have been delivered as described unless notice of loss or of damage to the goods indicating the general nature of such loss or damage shall have been given in writing to NC Exports or to its representative at the place of delivery before or at the time of removal of the goods by a representative of the person entitled to delivery thereof or if the loss or damage be not apparent within three consecutive days thereafter.

37. No agent or employee of NC Exports has NC Exports’ authority to alter or vary these conditions.

38. All the rights, immunities and exemptions from liability in these terms and conditions shall continue to have their full force and affect in all circumstances and not withstanding any breach of this contract or of any of these terms and conditions by NC Exports or any other person entitled to the benefit of such provisions and irrespective of whether such may constitute a fundamental breach of contract or a breach of a fundamental term.