Terms And Conditions

Ostrycharz International Pty Ltd T/A SOS Consultants -
Terms & Conditions of Contract

1. Definitions

1.1 "Consultant" shall mean Ostrycharz International Pty Ltd T/A SOS Consultants and its successors and assigns.

1.2 "Sub-Contractor" shall mean and include;

(a) Any other person, firm or Consultant with whom the Consultant may arrange for the carriage of any Goods the subject of the contract; or
(b) And any person who is now or hereafter a servant, agent, employee or sub-contractor of any of the persons referred to in clause 1.2(a).

1.3 "Customer" shall mean the Customer or any person or persons acting on behalf of and with the authority of the Customer. Where more than one Customer has entered into this agreement, the Customers shall be jointly and severally liable for all payments of the Price.

1.4 "Guarantor" means that person (or persons), or entity who agrees herein to be liable for the debts of the Customer if a Limited Liability Customer on a principal debtor basis.

1.5 "Goods" shall mean cargo together with any container, packaging, or pallet(s) supplied by the Customer to the Consultant for the purposes of movement from one place to another by way of the Consultant's Services.

1.6 "Services" shall mean all services supplied by the Consultant to the Customer and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined supra).

1.7 "Price" shall mean the cost of the Goods or Services as agreed between the Consultant and the Customer subject to clause 4 of this contract.

2. Acceptance

2.1 Any instructions received by the Consultant from the Customer for the supply of Services shall constitute acceptance of the terms and conditions contained herein.

2.2 Upon acceptance of these terms and conditions by the Customer the terms and conditions are irrevocable and can only be rescinded in accordance with these terms and conditions or with the written consent of the manager of the Consultant.

2.3 None of the Consultant's agents, contractors or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the manager of the Consultant in writing nor is the Consultant bound by any such unauthorised statements.

2.4 These terms and conditions of contract are to be read in conjunction with the Consultant's consignment note, agreement, airway bills, manifests, or any other forms as provided by the Consultant to the Customer. If there are any inconsistencies between these documents then the terms and conditions contained in this document shall prevail.

3. Services

3.1 The Services shall be as described on the invoices, consignment Note, airway bills, manifests, sales order or any other forms as provided by the Consultant to the Customer.

4. Price And Payment

4.1 At the Consultant's sole discretion;

(a) The Price shall be as indicated on invoices provided by the Consultant to the Customer in respect of Services supplied; or
(b) The Price of the Services shall be the Consultant's quoted Price that shall be binding upon the Consultant provided that the Customer shall accept the Consultant's quote within twenty-eight (28) days.

4.2 The Consultant may by giving notice to the Customer increase the Price of the Goods to reflect any increase in the cost to the Consultant beyond the reasonable control of the Consultant (including, without limitation, foreign exchange fluctuations, or increases in taxes or customs duties or insurance premiums or warehousing costs).

4.3 Time for payment for the Services shall be of the essence and will be stated on the invoice, consignment Note, airway bills, manifests or any other order forms. If no time is stated then payment shall be on delivery of the Goods.

4.4 At the Consultants sole discretion, for certain approved Customers payment will be due either seven (7) or thirty (30) days following the date of the invoice.

4.5 Payment will be made by cheque, or by credit card, or by direct credit, or by any other method as agreed to between the Customer and the Consultant.

4.6 The Price shall be increased by the amount of any GST and other taxes and duties that may be applicable, except to the extent that such taxes are expressly included in any quotation given by the Consultant.

5. Port to Port Shipment

5.1 Where the Carriage called for by this Agreement is a Port to Port Shipment, then

(a) the liability (if any) of the Consultant for loss of or damage to the Goods occurring from and during loading onto any sea-going vessel up to and during discharge from that vessel or from another sea-going vessel into which the Goods shall have been transhipped shall be determined in accordance with any national law making the Hague Rules or the Hague Rules as amended by the Protocol signed at Brussels on 23rd February 1968 (Hague Visby Rules) compulsorily applicable in this Agreement (including the U.K. Carriage of Goods by Sea Act 1924, the Australian Sea Carriage of Goods Act 1924 and the New Zealand Sea Carriage of Goods Act 1940) or, if there be no such national law, in accordance with the Hague Rules contained in the International Convention for the unification of certain rules relating to Bills of Lading dated 25th August, 1924. All the terms of this Agreement (except clauses 6 to 10) shall apply to such Carriage, save that if any term in this Agreement is inconsistent with or repugnant to the Hague Rules or the Hague Visby Rules as the case may be it shall to the extent of such inconsistency or repugnance and no further be null and void. Notwithstanding the above, the Consultant's liability, if any, shall be limited to loss of or damage to the Goods occurring from and during loading on to any sea-going vessel up to and during discharge from that vessel.

(b) for the purpose of determining the extent of the Consultant's liability for loss of or damage to the Goods, the sound value of the Goods is agreed to be the invoice value plus freight and insurance if paid.

6. Combined Transport

6.1 Where the Carriage called for by this Agreement is Combined Transport then, save as is otherwise provided in this Agreement, the Consultant shall be liable for loss or damage occurring during Carriage to the extent set out below.

7. Stage of Carriage Not Known

7.1 Where the stage of Carriage where the loss or damage occurred is not known the Consultant shall be relieved of liability for any loss or damage if such loss or damage was caused by:

(a) an act or omission of the Customer;
(b) insufficiency of or defective condition of packing or marking;
(c) handling, loading, stowage or unloading of the Goods by or on behalf of the Customer;
(d) inherent vice of the Goods;
(e) strike, lock-out, stoppage or restraint of labour the consequences of which the Consultant could not avoid by the exercise of reasonable diligence;
(f) a nuclear incident if the operator of a nuclear installation or a person acting for him is liable for this damage under an applicable international convention or national law governing liability in respect of nuclear energy;
(g) any cause or event which the Consultant could not avoid and the consequence whereof he could not prevent by the exercise of reasonable diligence.

8. Burden of Proof

8.1 The burden of proving that the loss or damage was due to one or more of the causes or events specified in clauses 7 to 9 shall rest upon the Consultant. Save that, when the Consultant establishes that in the circumstances of the case, the loss or damage could be attributed to one or more of the causes or events specified in clauses 7.1(a) to (d), it shall be presumed that is was so caused. The Customer shall, however, be entitled to prove that the loss or damage was not, in fact, caused either wholly or partly by one or more of these causes or events.

9. Compensation

9.1 Compensation shall be calculated by reference to the value of such Goods at the place and time when they are delivered to the Customer or at the place and time when they should have been delivered.

9.2 The value of the Goods shall be determined according to the current commodity exchange price or, if there is no such price, according to the current market price or, if there is no commodity exchange price or current market price, by reference to the normal value of goods of the same kind and quality.

9.3 Except as provided in clause 14, compensation shall in no circumstances whatsoever and howsoever arising exceed U.S. $2.50 per kilo of the gross weight of the goods lost or damaged.

10. Stage of Carriage Known

10.1 Where the stage of Carriage where loss or damage occurred is known notwithstanding anything provided for in clauses 6 to 9 where it is known during which stage of Carriage the loss or damage occurred the liability of the Consultant in respect of such loss or damage shall be determined by the provisions contained in any international convention or national law, which provisions

(a) cannot be departed from by private contract to the detriment of the Customer, and
(b) would have applied if the Customer had made a separate and direct contract with the Consultant in respect of the particular stage of Carriage where the loss or damage occurred and received as evidence thereof any particular document which must be issued in order to make such international convention or national law applicable.

10.2 Provided that an international convention or national law will determine the Consultant's liability as aforesaid only if it would have been applicable if the contract referred to in clause 10.1(b) were governed

(a) where the loss or damage occurred between the time that the Goods were received by the Consultant for Carriage and the time that the Goods were loaded at the port of loading by the internal law of the state of the place of receipt, or
(b) where the loss or damage occurred during carriage by sea by the internal law of the State of the final port of discharge, or
(c) where the loss or damage occurred between the time that the Goods were discharged at the final port of discharge and the time that the Goods were delivered to the Customer by the internal law of the State of the place of delivery, or

(i) where no international convention or national law would apply by virtue, or
(ii) above by the Hague Rules contained in the International Convention for the unification of certain rules relating to Bills of Lading dated 25th August 1924, if the loss or damage is known to have occurred at sea or on inland waterways, or
(iii) by the provisions of clauses 7 & 8 in cases where the provisions of clauses

10.2 (i) and (ii) do not apply.

10.3 Where under the provisions of clause 10 the liability of the Consultant shall be determined by the provisions of any international convention or national law, this liability shall be determined as though the Consultant were the Consultant referred to in any such convention or national law.

10.4 References in clause 10 to the internal law of a State shall be deemed to exclude all principles of private international law applied by that State.

10.5 For the purposes of clause 10 references in the Hague Rules to carriage by sea shall be deemed to include references to carriage by inland waterways and the Hague rules shall be construed accordingly.

10.6 The Goods indicating the general nature of such loss or damage, shall have been given in writing to the Consultant or to his representative at the place of delivery before or at the time of removal of the Goods into the custody of the person entitled to delivery thereof under this Agreement, or, if the loss or damage is not apparent, within seven (7) consecutive days thereafter.

11. Time Bar

11.1 Subject to any provision of clause 16 to the contrary the Consultant shall be discharged of all liability under this Agreement unless suit is brought and notice thereof given to the Consultant within nine months after delivery of the Goods or the date when the Goods should have been delivered.

11.2 The Consultant shall not be entitled to the benefit of the limitation of liability provided for in clause 9 if it is proved that the loss or damage resulted from an act or omission of the Consultant done with intent to cause damage or recklessly and with knowledge that damage would probably result.

12. Delay

12.1 The Consultant does not undertake that the Goods shall arrive at the port of discharge or place of delivery at any particular time or to meet any particular market or use and save as provided in clauses 10 and 11 above the Consultant shall in no circumstances be liable for direct, indirect or consequential loss or damage caused by delay.

12.2 Where under the provisions of 10 and 11 above the Consultant is liable for delay, liability shall be limited to the element of the freight applicable to the relevant stage of transport provided this is not contrary to the international convention or national law concerned.

13. Supply of Containers

13.1 The terms of this Agreement shall govern the responsibility of the Consultant in connection with or arising out of the supply of a Container to the Customer, whether supplied before or after the Goods are received by the Consultant for Carriage or delivered to the Customer.

14. Ad Valorem

14.1 Higher compensation may be claimed only when, with the consent of the Consultant, the value of the Goods declared by the Customer, which exceeds the limits laid down in this Clause, has been stated in this Agreement and extra freight paid if required. In that case the amount of the declared value shall be substituted for those limits. Any partial loss or damage shall be adjusted pro rata on the basis of such declared value.

15. Hague Rules Limitation

15.1 Subject to clause 14, whenever Hague Rules are applicable, otherwise then by national law, in determining the liability of the Consultant, the liability shall in no event exceed £100 sterling per package or unit.

16. Scope of Application

16.1 Save as otherwise provided herein, the Consultant shall in no circumstances whatsoever or howsoever arising be liable for direct or indirect or consequential loss or damage. The defences and limits of liability provided for in this Agreement shall apply in any action against the Consultant for loss or damage or delay whether the action be founded in Contract or in Tort.

17. Customer-Packed Containers

17.1 If a Container has not been stowed by or on behalf of the Consultant

(a) the Consultant shall not be liable for loss of or damage to the Goods caused by

(i) the manner in which the Container has been stowed; or
(ii) the unsuitability of the Goods for carriage in Containers; or
(iii) the unsuitability or defective condition of the Container provided that where the Container has been provided by or on behalf of the Consultant this clause 17.1(a)(iii) shall only apply if the unsuitability or defective condition arose without any want of due diligence on the part of the Consultant or would have been apparent upon reasonable inspection by the Customer at or prior to the time when the Container was stowed.
(b) the Customer shall indemnify the Consultant against any loss, damage, liability or expense whatsoever and howsoever arising caused by one or more of the matters referred to in clause 17.1(a), save that where the loss, damage, liability or expense was caused by a matter referred to in clause 17.1(a)(iii) the Customer shall not be liable to indemnify the Consultant in respect thereof unless both the provisos referred to in that paragraph apply.

18. Inspection Of Goods

18.1 The Consultant or any person to whom the Consultant has sub-contracted the Carriage or any person authorised by the Consultant shall be entitled, but under no obligation, to open any Container or package at any time and to inspect the Goods.

19. Carriage Affected By Condition Of Goods

19.1 If it appears at any time that the Goods or any part thereof cannot safely or properly be carried or carried further, either at all or without incurring any additional expense or taking any measure(s) in relation to the Container or the Goods or any part thereof, the Consultant may without notice to the Customer take any measure(s) and/or incur any reasonable additional expense to carry or to continue the Carriage thereof, and/or abandon the Carriage and/or stow the same shore or afloat under cover or in the open, at any place, which abandonment or storage shall be deemed to constitute due delivery under this Agreement. The Customer shall indemnify the Consultant against any reasonable additional expense so incurred.

20. Description Of Goods

20.1 This Agreement shall be prima facie evidence of the receipt by the Consultant in apparent good order and condition except as otherwise noted, of the total number of Containers, packages or other units or weight of other cargoes specified on the face hereof. Proof to the contrary shall not be admissible when this Agreement has been transferred to a third party acting in good faith.

20.2 Except as provided in clause 20.1, no representation is made by the Consultant as to the weight, contents, measure, quantity, quality, description, condition, marks, numbers or value of Goods and the Consultant shall be under no responsibility whatsoever in respect of such description or particulars.

21. Customer's Responsibility

21.1 The Customer warrants to the Consultant that the particulars relating to the Goods as set out overleaf have been checked by the Customer on receipt of this Agreement and that such particulars and any other particulars furnished by or on behalf of the Customer are correct.

21.2 The Customer shall indemnify the Consultant against all loss, damage, fines and expenses arising or resulting from inaccuracies in or inadequacy of such particulars or from any other cause in connection with the Goods for which the Consultant is not responsible.

22. Consultant Not Common Consultant

22.1 The Consultant is not a Common Consultant and will accept no liability as such. All articles are carried or transported and all storage and other services are performed by the Consultant subject only to these conditions and the Consultant reserves the right to refuse the carriage or transport of articles for any person corporation or Consultant and the carriage or transport of any class of articles at its discretion.

23. Nomination Of Sub-Contractor

23.1 The Customer hereby authorises the Consultant (if it should think fit to do so) to arrange with a Sub-Contractor for the carriage of any Goods the subject of the contract. Any such arrangement shall be deemed to be ratified by the Customer upon delivery of the said Goods to such Sub-Contractor, who shall thereupon be entitled to the full benefit of these terms and conditions to the same extent as the Consultant. In so far as it may be necessary to ensure that such Sub-Contractor shall be so entitled the Consultant shall be deemed to enter into this contract for its own benefit and also as agent for the Sub-Contractor.

24. Method Of Transport

24.1 If the Customer instructs the Consultant to use a particular method of carriage whether by road, rail, sea or air the Consultant will give priority to the method designated but if that method cannot conveniently be adopted by the Consultant the Customer shall be deemed to authorise him to carry or have the Goods carried by another method or methods.

25. Route Deviation

25.1 The Customer shall be deemed to authorise any deviation from the usual route or manner of carriage of Goods that may in the absolute discretion of the Consultant be deemed reasonable or necessary in the circumstances.

26. Delivery

26.1 Delivery of the Goods shall be made to the Customer's address. The Customer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery, or delivery of the Goods shall be made to the Customer at the Consultants address.

26.2 Delivery of the Goods to a Consultant, either named by the Customer or failing such naming to a Consultant at the discretion of the Consultant for the purpose of transmission to the Customer, is deemed to be a delivery of the Goods to the Customer.

26.3 The costs of carriage and any insurance which the Customer reasonably directs the Consultant to incur shall be reimbursed by the Customer (without any set-off or other withholding whatever) and shall be due on the date for payment of the Price. The Consultant shall be deemed to be the Customer's agent.

26.4 Where there is no agreement that the Consultant shall send the Goods to the Customer, delivery to a Consultant at limited Consultant's risk at the expense of the Customer is deemed to be delivery to the Customer.

26.5 Unless otherwise expressly agreed in writing no responsibility in tort or contract or otherwise will be accepted by the Consultant for any loss of or damage to or deterioration of Goods or misdelivery or failure to deliver or delay in delivery of Goods including chilled, frozen refrigerated or perishable Goods either in transit or in storage for any reason whatsoever. The Consultant is authorised to deliver the Goods at the address given to the Consultant by the Customer for that purpose and it is expressly agreed that the Consultant shall be taken to have delivered the Goods in accordance with this contract if at that address he obtains from any person a receipt or signed delivery docket for the Goods.

26.6 The failure of the Consultant to deliver shall not entitle either party to treat this contract as repudiated.

26.7 The Consultant shall not be liable for any loss or damage whatever due to failure by the Consultant to deliver the Goods (or any of them) promptly or at all.

27. Loss Or Damage

27.1 The Consultant shall be under no liability whatsoever unless;

(a) the Customer provides written notice to the Consultant detailing the alleged damage, and that such written notice shall received by the Consultant seven (7) days after the delivery of the Goods; or
(b) In the case where the Goods have been lost in transit then the Customer shall be required to provide written notice detailing the alleged loss within fourteen (14) days of the date of dispatch of the Goods.

28. Strike Exemption

28.1 The Consultant cannot accept liability for any costs or losses incurred by the Client as a direct result of any strike action whether on the part of the employees of Contractor, or any other organisation.

29. Insurance

26.1 Due to change in Government legislation which took effect as from 1st July 2003 no third parties are allowed to issue Cargo Marine Insurance as they are deemed to be providing you the Customer with advise.

26.2 What we the Consultant are able to offer you the Customer is the Insurance Company and or Brokers contact details where you will have the opportunity to negotiate with them directly. The insurance company will then ask you to fill out a proposal form and issue you with a disc whereby you will be able to issue your own certificates or alternatively have us the Consultant issue them on your behalf along with the Agreement and any additional documentation that may be required as a value added service.

30. Charges Earned

30.1 The Consultant's charges shall be considered earned as soon as the Goods are loaded and despatched from the Customer's premises.

31. Demurrage

31.1 The Customer will be and remain responsible to the Consultant for all its proper charges incurred for any reason. A charge may be made by the Consultant in respect of any delay in excess of thirty (30) minutes in loading or unloading occurring other than from the default of the Consultant. Such permissible delay period shall commence upon the Consultant reporting for loading or unloading. Labour to load or unload the vehicle shall be the responsibility and expense of the Customer or Consignee.

32. Dangerous Goods

32.1 The Customer or his authorised agent shall not tender for carriage any explosive, inflammable or otherwise dangerous Goods without presenting a full description of those Goods and in default of so doing shall be liable for all loss and damage cased thereby.

33. Consignment Note

33.1 It is agreed that the person delivering any Goods to the Consultant for carriage or forwarding is authorised to sign the consignment note for the Customer.

34. Customers Responsibility

34.1 The Customer expressly warrants with the Consultant that the Customer is either the owner or the authorised agent of the owner of any Goods or property the subject matter of this contract of cartage and by entering into this contract the Customer accepts these conditions of contract for the Consignee as well as for all other persons on whose behalf the Customer is acting.

35. Disclaimer

26.1 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 the Consultant in respect to the Goods and subject to the agreement to the extend 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 tortuous liability of any kind;

(a) 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;
(b) For the purposes of the foregoing provisions of this clause the Consultant is and shall be deemed to be acting as agent on behalf of the 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.

35.2 In addition to and without prejudice to the foregoing Conditions the Customer undertakes that it shall in any event indemnify the Consultant against all liabilities suffered or incurred by the Consultant arising directly or indirectly from or in connection with the Customer's instructions or their implementation or the Goods, and in particular the Customer shall indemnify the Consultant in respect of any liability it may be under to any servant, agent or subcontractor, or any haulier, Consultant, 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.

36. Liability

36.1 The Consultant shall be discharged of all liability unless suit is brought in the proper forum and written notice thereof received by the Consultant within one (1) month after delivery of the Goods or the date when the Goods should have been delivered.

37. The Commonwealth Trade Practices Act 1974 and Fair Trading Acts

37.1 Nothing in this agreement is intended to have the affect of contracting out of any applicable provisions of the Fair Trading Acts in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.

37.2 Liability of the Consultant 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 Consultant.

(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 AUD$200.00 for loss of or damage to any such Goods, packages or units or AUD$2.00 per kilogram or the gross weight for loss of or damage to any such Goods, packages or units or $20.00 per package or unit lost or damaged. For the purpose of this clause the word "package" shall include the contents even if particulars have been provided or incorporated in any document of the Consultant.

38. Default & Consequences Of Default

38.1 Interest on overdue invoices shall accrue from the date when payment becomes due daily until the date of payment at a rate of 2.5% per calendar month and shall accrue at such a rate after as well as before any judgement.

38.2 If the Customer defaults in payment of any invoice when due, the Customer shall indemnify the Consultant from and against all the Consultant's costs and disbursements including on a solicitor and own client basis and in addition all of EC Credit Control Pty Limited's costs of collection.

38.3 Without prejudice to any other remedies the Consultant may have, if at any time the Customer is in breach of any obligation (including those relating to payment), the Consultant may suspend or terminate the supply of Services to the Customer and any of its other obligations under the terms and conditions. The Consultant will not be liable to the Customer for any loss or damage the Customer suffers because the Consultant exercised its rights under this clause.

38.4 All unpaid charges shall be paid in full and without any offset, counter claim or deduction, in the currency of the place of receipt of the Goods or at the Consultant's option, in the currency of the place of delivery at the TT selling rate in affect 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.

38.5 In the event that:

(a) any money payable to the Consultant becomes overdue, or in the Consultant's opinion the Customer will be unable to meet its payments as they fall due, Or;
(b) the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors, Or;
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer,
then without prejudice to the Customer's other remedies at law;

(i) the Consultant shall be entitled to cancel all or any part of any order of the Customer which remains unperformed in addition to and without prejudice to any other remedies; and
(ii) all amounts owing to the Consultant shall, whether or not due for payment, immediately become payable.

39. Security And Charge

39.1 Notwithstanding anything to the contrary contained herein or any other rights which the Consultant may have howsoever:

(a) Where the Customer and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Customer and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to the Consultant or the Consultant's nominee to secure all amounts and other monetary obligations payable under the terms and conditions. The Customer and/or the Guarantor acknowledge and agree that the Consultant (or the Consultant's nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be released once all payments and other monetary obligations payable hereunder have been met.
(b) Should the Consultant elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Customer and/or Guarantor shall indemnify the Consultant from and against all the Consultant's costs and disbursements including legal costs on a solicitor and own client basis.
(c) To give effect to the provisions of clause [39.1 (a) and (b)] inclusive hereof the Customer and/or the Guarantor (if any) do hereby irrevocably nominate constitute and appoint the Consultant or the Consultant's nominee, namely EC Credit Control Pty Limited as the Customer's and/or Guarantor's true and lawful attorney to execute mortgages and charges (whether registerable or not) including such other terms and conditions as the Consultant and/or EC Credit Control Pty Limited shall think fit in his/her/its/their absolute discretion against the joint and/or several interest of the Customer and/or the Guarantor in any land, realty or asset in favour of the Consultant and in the Customer's and/or Guarantor's name as may be necessary to secure the said Customer's and/or Guarantor's obligations and indebtedness to the Consultant and further to do and perform all necessary and other acts including instituting any necessary legal proceedings, and further to execute all or any documents in the Consultant's absolute discretion which may be necessary or advantageous to give effect to the provisions of this clause.

40. Privacy Act 1988

40.1 The Customer and/or the Guarantor/s agree for the Consultant to obtain from a credit reporting agency a credit report containing personal credit information about the Customer and Guarantor/s in relation to credit provided by the Consultant.

40.2 The Customer and/or the Guarantor/s agree that the Consultant may exchange information about Customer and Guarantor/s with those credit providers named in the Application for Credit account or named in a consumer credit report issued by a reporting agency for the following purposes:

(a) To assess an application by Customer;
(b) To notify other credit providers of a default by the Customer;
(c) To exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers; and
(d) To assess the credit worthiness of Customer and/or Guarantor/s.

40.3 The Customer consents to the Consultant being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).

40.4 The Customer agrees that Personal Data provided may be used and retained by the Consultant for the following purposes and for other purposes as shall be agreed between the Customer and Consultant or required by law from time to time:

(a) provision of Goods & Services;
(b) marketing of Goods and or Services by the Consultant, its agents or distributors in relation to the Goods and Services;
(c) analysing, verifying and/or checking the Customer's credit, payment and/or status in relation to the provision of Goods or Services;
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by Customer; and
(e) enabling the daily operation of Customer's account and/or the collection of amounts outstanding in the Customer's account in relation to the Goods and Services.

40.5 The Consultant may give, information about the Customer to a credit reporting agency for the following purposes:

(a) to obtain a consumer credit report about the Customer; and or
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Customer.

41. Unpaid Consultant's Rights to Dispose of Goods

41.1 The Consultant shall have a lien on the Goods and any documents relating to the Goods and/or any other Goods or cargo of the Customer in the possession or control of the Consultant and any documents relating to those other Goods or cargo for all sums payable by the Customer to the Consultant for that purpose and shall have the right to sell such Goods or cargo by public auction or private treaty without notice to the Customer. The Consultant shall be entitled to retain the sums due to it, in addition to the charges incurred in detention and sale of such Goods or cargo, from the proceeds of sale and shall render any surplus to the entitled person.

42. General

42.1 If any provision of these terms and conditions shall be invalid, void or illegal or unenforceable the validity existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.

42.2 All Goods supplied by the Consultant are subject to the laws of Victoria and the Consultant takes no responsibility for changes in the law which affect the Goods supplied.

42.3 The Consultant shall be under no liability whatever to the Customer for any indirect loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by the Consultant of these terms and conditions.

42.4 In the event of any breach of this contract by the Consultant the remedies of the Customer shall be limited to damages. Under no circumstances shall the liability of the Consultant exceed the Price of the Goods.

42.5 The Customer shall not set off against the Price amounts due from the Consultant.

42.6 The Consultant reserves the right to review these terms and conditions at any time and from time to time. If, following any such review, there is to be any change in such terms and conditions, that change will take effect from the date on which the Consultant notifies the Customer of such change.

42.7 The Customer authorizes the Consultant and any Subcontractor to subcontract on any terms the whole or part of the provision of the Services.

42.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.