服务条款
The contract related to the transport of horses as set forth in the attached quotation and/or invoice is undertaken and made by Instone Air Services Pty Ltd, dba Instone Air Services (the “Company”) subject to the Terms and Conditions set forth below, which shall be deemed to be incorporated in any agreements between the Company and its Customers. The Terms and Conditions set forth below may not be changed, modified, altered or varied, except in writing signed by an authorized officer of the Company.
1. In all transactions between the Company and its customers, and for all purposes in these Terms and Conditions, the word “Customer” shall mean the person at whose request the Company undertakes to ship the Consigned Property (as hereinafter defined). Customer hereby represents and warrants that Customer is either the owner or authorized agent of the owner(s) of the livestock, bloodstock, animals and/or property consigned to the Company for shipment (the “Consigned Property”). Customer hereby further represents and warrants that Customer is authorized to accept and does hereby accept these Terms and Conditions not only for Customer, but also for and on behalf of the owner(s) of, and all other persons who now have or may hereafter acquire any interest in, the Consigned Property or any portion thereof. Customer further represents and warrants that Customer is fully authorized by the owner(s) of the Consigned Property to take any and all actions on their behalf with respect to the obligations undertaken by the Company in relation to the Consigned Property, and the Company need not recognize any title to the Consigned Property in any person other than Customer.
2. Customer warrants and represents to the Company that each animal included within the Consigned Property is fit and healthy, and able to undertake the requested transportation and/or handling and agrees to indemnify and defend (with counsel acceptable to the Company) the Company against any claims, losses or expenses resulting from misrepresentation or inaccuracy of the foregoing representation.
3. All transportation of the Consigned Property is at the sole risk of Customer, without any responsibility or liability on the part of the Company, and without limiting the generality of the foregoing, the Company shall have no responsibility or liability for any injury, sickness or death of any animal included in the Consigned Property, however arising, prior to, during, or after any transportation or handling, and Customer hereby specifically waives all recourse against the Company for any injury, loss or damage suffered by or occurring to the Consigned Property, regardless of cause. In all transactions undertaken by the Company, the Company acts only as a freight forwarder and/or customs broker and/or warehouseman, and is not a common carrier or an insurer of the Consigned Property. The Company agrees only to use reasonable care in selecting the persons, firms and other entities who will perform the necessary services in connection with such transportation, including the carriage, storage, packing, handling, loading and unloading, caring for, and other services when and where necessary or appropriate, in making the arrangements for and booking the transportation and in preparing the necessary documents relating thereto. Customer specifically acknowledges, agrees and accepts that the Consigned Property shall be shipped by the Company subject to all terms and conditions imposed by the airline, shipping line, road hauler or other carrier transporting the Consigned Property.
4. Customer hereby agrees to provide and shall so provide full payment by bank or cashier ‘s cheque of all charges, fees and expenses as quoted to Customer by the Company prior to the shipping or transportation of any Consigned Property, and notwithstanding any agreement for such shipping or transportation, the Company shall not be compelled to transport or forward such Consigned Property unless and until any and all freight, insurance, and other related charges payable by Customer have been paid. If Customer is acting as an agent in any transaction, such agency notwithstanding, Customer hereby accepts all obligations to pay all of the Company’s charges, fees and expenses related to such transaction as principal, with respect to the Company, and hereby irrevocably waives any and all defenses to such obligation based on such agency. If any of the costs of insurance, freight or other shipping or related fees and expenses increase above those quoted to Customer. payment of any excess shall be immediately due and payable directly to the Customer and shall be the sole responsibility of Customer.
5. Customer shall furnish the Company with all details, documents, information, descriptions, values, markings, pedigrees, addresses, and identifying materials related to the Consigned Property and instructions as to the disposition thereof and hereby warrants the accuracy of all material so furnished. The Company shall have a lien on any and all property (and documents relating thereto) of Customer in its possession, custody or control for charges, expenses or advances incurred by the Company in connection with any transaction handled by the Company for the Customer in excess of amounts paid prior to shipment in accordance with the previous paragraph. If any amounts owed to the Company by Customer or Customer’s principal remain unpaid for thirty (30) days after demand for payment is made, the Company may impose a service charge on all amounts owing to the Company at the rate of one and one-half percent (1.5%) per month up to the maximum permitted by law. The Company may, in its sole discretion and without notice to Customer, sell at public auction or private sale, give away or destroy the Consigned Property or so much thereof as may be necessary to satisfy such Lien, and apply the net proceeds therefrom to the payment of any and all amounts owing to the Company. The Company shall not be responsible for maintaining any or all of the Consigned Property to any standard during such time as the Consigned Property is in the Company’s possession as a result of non-payment by Customer. Any surplus remaining from such disposition of the Consigned Property shall be transmitted to Customer and Customer shall remain liable for any deficiency. The confiscation or quarantine of the Consigned Property or any portion thereof by any government authority or other agency, public or private, shall not effect the obligation of Customer to the Company in respect of any charges, expenses or advances due to the Company as to any transaction.
6. No insurance will be obtained by the Company upon or in connection with the handling and shipping of the Consigned Property hereunder unless specifically requested by Customer in writing and agreed to by the Company in writing. Customer shall bear the cost of all such insurance and coverage provided, it being understood and agreed that insurance premiums and the charges of the Company for arranging the same shall be at Customer’s expense, and which shall be subject to any and all exceptions and conditions of the policies of the insurance company or underwriter(s) taking on the risk. If Customer requests and the Company agrees to obtain insurance, the Company reserves the right, in its sole and absolute discretion, to select Insurance carriers, and, without limiting the generality of the foregoing, Customer shall have no right at any stage to object to the identity of the insurer or the terms and conditions of the policy. Notwithstanding the foregoing, the Company makes no representation or warranty that any insurance can or will be placed. The Company shall not be under any obligation to effect a separate insurance policy in connection with any transaction, but may declare it, without being obligated to do so, on any open or general policy, if the same is available. In the event any insurer disputes its liability for any reason, Customer shall have recourse only against the insurer, and the Company shall have no responsibility or liability whatsoever in connection therewith, it being specifically understood and agreed that the Company will have no responsibility for any non-payment of any claim(s) by the insurer(s), even if the insurance was effected by and the insurance Company selected by the Company. The Company shall, under no circumstances, be deemed an insurer in connection with any transaction handled by it.
7. The Company is authorized by Customer and is hereby given sole and absolute discretion to choose the means, route and procedure, and to prepare documents in Customer’s name or the Company’s name, for the handling, transportation, delivery, receipt or clearance of the Consigned Property. Without limiting the generality of the foregoing, the Company shall, in its sole and absolute discretion, select and engage carriers, truckmen, forwarders, custom house brokers, agents, warehousemen and others to transport, store, receive, deliver and/or otherwise deal with or handle the Consigned Property, all of whom shall be deemed to act as agents for and on behalf of Customer. The Consigned Property may be entrusted by the Company to such agents subject to all conditions as to limitation of liability for loss, damage, delay or expense, and to any and all rules, regulations, requirements and conditions, whether written or printed or stamped, appearing on bills of lading, receipts or tariffs issues by such carriers, truckmen, forwarders, custom house brokers, warehousemen, agents or others, or as may be applicable by operation of law or treaty. The Company shall under no circumstances be liable for any loss, damage, delay or expense as to the Consigned Property, for any reason whatsoever, including consequential damages, when the Consigned Property is in the custody, possession or control of third parties, whether selected or engaged by the Company or otherwise.
8. Customers shall be liable for all duties, taxes, imports, levies, freights and outlays of any kind levied by authorities in any port or place, for or in connection with the Consigned Property and for all payments, storage, demurrage, fines, expenses, loss or damages, howsoever incurred or sustained by the Company in connection therewith, regardless of cause. The Company shall not be obligated to incur any expense, guarantee payment or advance any money in connection with the Consigned Property unless the Company agrees to do so in writing signed by an officer thereof. If the Company has to arrange to keep or board the Consigned Property or any portion thereof prior to transportation or during any stage of the transportation or until all payments relating to the Consigned Property have been received by the Company, all costs, expenses, fees and other charges associated with such board or keep, including but not limited to veterinary care, health testing or retesting and expenses of quarantine, shall be due and payable from Customer immediately upon notice thereof by the Company. If the regulations of the destination jurisdiction require certificates regarding the health or condition of any animals included in the Consigned Property, any costs incurred for any veterinary examination or health tests needed to obtain such certificates shall be payable by Customer, and, although not obligated to do so, if the Company makes any such payment on behalf of Customer, such amounts shall become due and payable to the Company immediately upon notice thereof to Customer.
9. If for any reason the Company, in its sole and absolute discretion, deems it to be unsafe or inexpedient to continue the transportation or handling of the Consigned Property or any part thereof or determines such Consigned Property to be in a condition dangerous or prejudicial to other livestock, bloodstock, animals and/or property, or for any other reason to be unfit or unsuitable for further transit or handling, the Company may terminate this agreement and its obligations hereunder by notifying the Customer of such termination, and in such notice may require the immediate removal of the Consigned Property. The Customer agrees that within twentyfour hours after the receipt of such notice, it will pay all charges and remove said Consigned Property, and at the expiration of said twentyfour hours, the liability of the Company with respect to such Consigned Property and the Customer, arising from any cause or circumstance whatsoever, shall cease. If Customer fails to remove the Consigned Property within such twenty-four hours, the Company shall have no duty of care with respect to the Consigned Property, but any expenses incurred by the Company voluntarily shall be fully payable upon demand to Customer by the Company.
10. The liability of the Company for any claim of any kind whatsoever, including but not limited to liability for negligence, breach of contract, or for any loss or damage arising from any acts or omissions by the Company, its agents or employees shall not exceed the total amount payable to the Company by Customer for the shipment and handling of the Consigned Property and all related costs, fees and expenses incurred by the Company in connection therewith.
11. The Company shall not be obligated to make any declaration for any purpose as to the nature or value of the Consigned Property, or special interest in delivery, unless expressly instructed to do so by Customer, or required by law, rule or regulation. Where there is a choice of rates according to the extent or degree of liability assumed by carriers, warehousemen or others, the Consigned Property will be forwarded, dealt with and handled at Customer’s risk or other minimum charges, and no declaration of value (where optional) will be made, unless express written instructions to the contrary have previously been given by Customer to the Company, whereon the rates will be Customer’s responsibility.
12. The Company shall not be liable for any non-compliance or miscompliance with any instructions given to it by Customer. Without prejudice to the generality of the foregoing, the Company shall not, in any event, be under any liability for any delay in transport or delivery of the Consigned Property. THE COMPANY SHALL UNDER NO CIRCUMSTANCES BE LIABLE FOR CONSEQUENTIAL DAMAGES OF WHATEVER KIND, HOWEVER AND BY WHOMEVER CAUSED, nor for any loss, damage or expense arising from or in any way connected with the marks, weights, numbers, brands, contents or quality of description of the Consigned Property or any portion thereof, however caused.
13. The terms, conditions, validity and operational effect of these Terms and Conditions shall be determined in accordance with the laws of the State of New South Wales.
14. In the event that any term, condition, provision or part of any of these Terms and Conditions is not valid and enforceable in any place or jurisdiction, the validity of any other term, condition or provision contained in these Terms and Conditions shall not be affected and all other such Terms and Conditions shall remain in full force and effect.
15. In the event that any third party claims or legal actions are brought against the Company arising out of any transaction handled by the Company for Customer, Customer agrees to indemnify and hold harmless the Company for any amount the Company may be required to pay, lose or incur, including attorney’s fees and court costs, in defending against such claim or legal action and in obtaining reimbursement therefor from Customer.