- These terms and conditions apply to all services provided by MCS
- In these terms and conditions,
MCS includes Maritime Container Services Pty. Limited ACN 001 169 240,
ABN 69 001 169 240, it’s servants agents independent contractors and sub-contractors and Sub-contractors includes any person, firm, Customer, Government or semi-Government instrumentality other than MCS with whom MCS may arrange for storage handling repair maintenance cartage and/or otherwise dealing with any of the goods deposited with it.
Charges include any fees, charges, interest, expense reimbursement or other money or consideration payable to MCS by the Customer under this agreement.
Customer means the person, firm, company or organisation by whom or on whose behalf goods are deposited or transported.
Goods includes but is not limited to goods, parcels, packages, pallets, crates, cases, bundles and shipping and other containers of all types and the contents thereof.
Services includes storage, handling, repair and cartage, including road or rail, of goods any other service or action (including anything which is a taxable supply under the GST legislation) provided by MCS to the Customer.
- Unless otherwise agreed in writing by MCS, the Customer will pay all charges within 30 days of the date of statement and will pay MCS interest at 12% pa on any charges not paid by the due date plus any costs or expenses incurred by MCS in recovering payment.
- Where MCS is liable to pay Goods and Services Tax (GST) or any other tax or duty on any charges for any services, the Customer must pay the GST and any other tax to MCS at the same time and in the same manner as the charges are payable. If MCS becomes liable for any penalties or interest resulting from late payment of GST because of the Customer’s failure to comply with this clause, the Customer must pay an amount equal to those penalties and/or interest to MCS on demand.
- MCS is not a common carrier and will accept no liability as such and reserves the right to refuse any goods tendered to it for carriage and/or storage.
- The Customer shall not give MCS instructions regarding nor tender for carriage or storage any explosive, inflammable or otherwise dangerous or damaging goods or any perishable goods without first making a full and detailed written disclosure to MCS and first obtaining the agreement of MCS to the carriage and/or storage of such goods and the client shall at all times and in all circumstances be liable for all loss and damages caused or aggravated directly or indirectly by such goods.
- The Customer hereby authorises MCS (if it should think fit to do so) to arrange with a sub-contractor or sub-contractors for the carriage or storage of the service the subject to this agreement. Any sub-contracting shall be deemed ratified by the Customer upon delivery of the said goods to the sub-contractor who shall thereupon be entitled to the full benefits of these terms and conditions to the same extent as MCS. In entering into this agreement, and its terms and conditions, MCS does so not only on its own behalf but as agent for such servants, sub-contractors and agents.
- Prior to instructing MCS the Customer shall fully disclose in writing to MCS all goods which may be liable to customs duties or official restrictions and shall indemnify MCS against all claims, fines, costs, charges and expenses which may be incurred by MCS by reason of any error or omission on the part of the Customer or MCS as a result of the information given in such disclosure or declaration. Otherwise they may be sold by the collector of customs pursuant to the Customs Act. All goods are stowed subject to the provisions of the Customs Act.
The Customer warrants that it is the authorised agent of the person owning(or having an interest in)
the Goods and enters into this contract as authorized agent of that person and will, and will procure
That its Associates,will:
(a). be responsible for packing the Goods;
(b). comply with:
(a). all applicable laws (including chain of responsibility legislation)and provide MCS
with all necessary assistance, information and documentation to enable MCS to
comply with such laws, including ensuring that the weight of any container
(including the weight of the Goods) which is specified in the container weight
document is accurate; and
(b). any policies or procedures of MCS relating to safety and security in the provision of
Services (as notified from time to time);
- Notwithstanding anything which might otherwise be implied the goods are at all times carried and stored at the risk of the Customer and not MCS and, MCS shall not be responsible in tort or contract or otherwise for any loss or damage or deterioration or misdelivers or wrongful delivery or no delivery or delay or detention of any goods or any loss or delay or detention of any goods or any loss or consequential loss (including loss of profit) arising there from either in transit or in storage or in collection or delivery for any reason whatsoever or howsoever caused (including but not limited to any negligent or wilful act or default of MCS).
- Subject to 9.3, MCS shall not be responsible in tort or contract or otherwise for any loss or damage or deterioration or misdelivery or wrongful delivery or non delivery or delay or detention of any goods stored except to the extent that the relevant loss or damage is caused by the negligent or wilful act or default of MCS.
- Neither the Customer or MCS shall be liable for any consequential loss (including loss or profit) arising in for any reason whatsoever or howsoever caused (including but not limited to any negligent or wilful act of default of MCS).
- The Customer shall indemnify and keep indemnified MCS against all claims, actions, suits, demands, damages, duties, fines, penalties, costs and other obligations which MCS may be called upon to meet in respect of the carriage and/or storage and/or the service which is the subject matter of this agreement, to any person or body (including but not limited to private, public or statutory bodies (including seizure and/or sale by a Customs authority) howsoever arising.
- The Customer shall indemnify MCS from and against all liability for loss of life and/or personal injury to any person or persons whatsoever caused or contributed to by the goods or any inherent vice thereof or caused or contributed to by the carriage, storage and/or service which is the subject matter of this agreement even if such loss of life and/or personal injury results from or is contributed to by the negligence of MCS.
- In the event of any claim or dispute arising under this contract, the Customer shall not in respect of any services provided hereunder claim or otherwise proceed against any person, firm or corporation other than MCS. If the Customer does so claim or otherwise proceed against any person, firm or corporation other than MCS, the Customer shall fully indemnify MCS against all consequences of his so doing including, without limitation to the generality of the foregoing, any liability MCS may incur to its servants, agents or sub-contractors and if any action is brought against a servant, agent or sub-contractor of MCS such person, firm or corporation shall be entitled to avail itself of the defences and limits of liability which MCS is entitled to invoke under this agreement.
- It is agreed that all rights and immunities and limitations of liability granted to MCS, its servants or agents and sub-contractors by these conditions shall continue to have their full force and effect in all circumstances and notwithstanding any breach of agreement or any of the conditions hereof by MCS regardless of the extent or seriousness of the breach and regardless of whether or not the breach is a breach of a fundamental term or condition of this agreement.
- It is agreed that the person delivering any goods to MCS for carriage an/or storage is authorised to accept and is deemed on delivery of the article to MCS to have accepted these terms and conditions of this agreement for himself and for the Customer.
- Unless otherwise directed by a specific notice in writing MCS is authorised by the Customer to collect payment of “C.O.D.” articles in legal tender or cheques and to give receipts on behalf of the Customer.
- If the Customer fails to pay any charges by the due date or if the Customer is placed under any form of insolvency administration, MCS may (without affecting any other right) at its discretion cease to provide any further services and may retain possession of all or any goods in its possession or control until it receives payment of all charges payable by the Customer on any account.
If MCS does not receive full payment of outstanding charges within 45 days of the due date, the goods will be deemed abandoned and MCS may sell part or all of them after giving the Customer not less than 14 days written notice of its intention to do so (sent to the address of the Customer last known to MCS). MCS will apply the proceeds of sale of the goods firstly to pay the expenses of the sale and secondly to pay all charges owing to MCS and will send the balanced, if any, to the address of the Customer last known to MCS.
The Customer hereby authorises MCS to exercise the rights given under this clause and releases MCS from any liability for loss or damage to the Customer, and indemnifies MCS against any liability for loss or damage to any other person, arising from or claimed to arise from MCS exercising its rights and powers under this clause.
- MCS’ charges for carriage and/or storage shall be payable by the Customer notwithstanding MCS’ rights (if any) against the consignee or any other person or body corporate provided that when it is stated on the consignment note or docket that the charges are payable by the consignee or that the goods are consigned “C.O.D.” or “Freight Collect” the Customer shall require to pay such charges unless the consignee fails to pay after a reasonable demand has been made by MCS for payment thereof.
- Insurance of goods will not be affected for the benefit of the Customer unless prior to MCS taking delivery of the goods MCS is specifically instructed in writing in each case where insurance is required and those instructions contain information as to the full value of the consignment and the type of insurance required. Additionally the current insurance charges must have been paid to MCS on or before the date of the instructions. Any such insurance shall be on the terms as offered by the insurer with whom MCS takes out the cover and MCS itself makes no warranties or representations and accepts no responsibility whatsoever in relation thereto.
- A charge will be made by MCS in respect of any delay in excess of one hour loading or in excess of 30 minutes in unloading, occurring other than through the default of MCS, such permissible delay period commencing upon MCS reporting for loading or unloading noting that labour for such purposes are the responsibility and the expense of the Customer or the consignee as is appropriate.
- MCS’ inspection and quotation is based on its understanding of the Customer’s inspection and repair criteria relating to apparent visual damage or defect to the goods at the time of inspection. MCS’ quotation does not include the cost of repairs and parts for any hidden damage or defect discovered after work commenced. MCS’ quotation shall remain in force for thirty (30) days from the quotation date, after which time it may be revised without notice. Normal storage charges will accrue while goods are on MCS premises.
- MCS’ charges shall be considered earned when MCS purports to perform its obligations thereon whether or not the goods are delivered to the consignee or not and whether damaged or otherwise. Under no circumstances (subject to clause 25) will any payment be refunded or credited. NO claim or counter claim shall constitute any ground for deferring or withholding payment of moneys due to MCS nor shall the same give any rise to any set off.
- All quotations are given on the basis of immediate acceptance and subject to the right of withdrawal or revision by MCS at any time. If any changes occur in the rates of carriage or storage or any other charges applicable to the articles, quotations and charges shall be subject to revision accordingly without notice to the Customer.
- Notwithstanding anything herein contained MCS shall continue to be subject to any implied warranty provided by the Trade Practices Act 1974 as amended (if and to the extent that the said Act is applicable to this agreement) only to the extent that such Act prevents the exclusion, restriction or modification of that warranty and where such warranty applies, MCS’ liability is limited to providing the service again or paying the Customer the cost of providing the service.
- These conditions shall be governed and construed by the law of New South Wales wheresoever the contract was made and any proceedings in respect of any matter or thing against MCS shall be instituted and carried on in the State of New South Wales only. In any event MCS shall be relieved of any or all liability whatsoever if proceeding are not commenced and served upon MCS within one year of loss or damage occurring.
- MCS does not guarantee or warrant repairs and/or maintenance carried out on goods in its care. Without prejudice MCS will consider claims for repair and maintenance performed by MCS no longer than one year from the date of repair.
- In these conditions of agreement unless inconsistent with the context any word importing the singular or plural number or masculine or neuter gender shall be read as also importing and including the plural or singular number and the feminine or masculine gender as the case may require.
- The Customer and MCS agree that these conditions of agreement are MCS’ standard terms and conditions for all work done or services rendered by or on behalf of MCS and they may not be varied except by written agreement signed on behalf of MCS by a Director of MCS.