Terms & Conditions
Please read below to find out about our trading terms and conditions.
Last updated Nov 14, 2024
By purchasing Goods or Services from Cargobear, the Customer agrees to accept and be bound by these Trading Terms. All business undertaken by Cargobear for the Customer will be deemed transacted on these Trading Terms unless otherwise agreed by Cargobear. These Trading Terms override any terms stipulated by the Customer, except as expressly agreed in writing by Cargobear.
Definitions and Interpretation
In these Trading Terms, except where otherwise specified:
Agreement means the agreement for the supply of Goods and Services by Cargo Bear to the Customer that comes into being when an Order for Goods or Services is made by the Customer, whether through a Cargo Bear Platform or in any other manner.
Business Day means a day that is not a Saturday, Sunday or any other day which is a public holiday or a bank holiday in the place where an act is to be performed, a notice is to be received, or a payment is to be made.
Cargobear means Beestons Group Pty Ltd
Cargobear Platform means each website, application and other technology system via which a Customer may make an Order for Goods and Services by Cargobear.
Carriage by Air Convention means applicable legislation incorporating the Warsaw Convention (1929), the Warsaw Convention as Amended at the Hague (1955) and Warsaw supplementary protocols such as the “Guadalajara Convention”, Protocol of Montreal No. 4 or the Montreal Convention (1999).
CCA means the Australian Competition & Consumer Act 2010 (Cth).
Customer means any person, firm or company placing an Order with Cargobear for the purchase of any Goods and Services. If the Customer is comprised of more than one person then “Customer” means those persons collectively and each of them individually and the obligations and liabilities on the part of the Customer in these Trading Terms binds all of them jointly and each of them severally.
Customer Property means goods and other physical property provided by the Customer to be transported and or stored by Cargobear pursuant to any Services.
Dangerous Goods shall mean such of the Customer Property as shall be, or become, in fact or at law noxious, dangerous, hazardous, explosive, radioactive, inflammable or capable by their nature of causing damage or injury to other goods, persons, plants or animals or to any thing including that in which the Customer Property are carried, handled or stored.
Goods means goods supplied or to be supplied to the Customer whether in connection with or separately to Services.
Government Authority means, without limitation, all Government Departments with responsibility for the import and export of goods, the collection of revenue on the import and export of goods and the transport of those goods to include, without limitation, Australian Customs Service (ACS), Australian Quarantine Inspection Service (AQIS) and Australian Taxation Office (ATO).
Order means any order by the Customer for supply of Goods and or Services.
Perishable Goods means Customer Property which may deteriorate in quality and/or value over time and shall include, but not be limited to, food products, flowers and plants and other vegetation.
PPSA means the Personal Property Securities Act 2009 (Cth).
Quotation means any proposal to supply Goods and or Services issued by Cargobear outlining the likely cost of an Order.
Services means carriage, transport, movement, packing, handling, storage/warehousing, customs clearance and/or any other service arranged or performed by Cargobear, pursuant to, or ancillary to an Order by the Customer.
Subcontractor means any person, firm or company that is engaged by Cargobear in the supply of Services (or any part thereof).
Trading Terms means these terms and conditions.
Valuables means any Customer Property, including without limitation bullion, coins, precious stones, jewellery, antiques, or works of art for a value, individually or collectively as part of a single Order, exceeding $5,000 AUD.
Headings are for convenience only and do not form part of these terms and conditions of sale.
Reference to the singular includes the plural and the plural includes the singular.
Reference to one gender includes the others.
A person includes an individual or corporation or other legal entity as applicable.
Company's Capacity
The Customer acknowledges and agrees that CargoBear is and acts as an agent only when performing Services (or any part thereof). Without limiting the generality of this statement, Cargo Bear acts as agent when an air, road or sea carrier issues an air waybill, consignment note or sea carriage document for the designated carriage in that document naming the Customer or its agent (excluding Cargo Bear) as shipper and/or consignee in said document. Cargo Bear’s supply of Goods, whether paid for or on loan, including containers and other equipment, as part of the Services does not render Cargo Bear a principal.
The Customer further acknowledges and agrees that Cargo Bear is not a common carrier and accepts no liability as such.
Relationship with Drivers and Contractors
Cargo Bear may subcontract any part of the Services to any Subcontractor chosen by Cargo Bear in the name of the Customer, pursuant to its agency with the Customer. Cargo Bear may decide Subcontractor terms of engagement in its discretion including terms which may limit or exclude liability in respect of the Services. In any event, Cargo Bear shall be entitled to the full benefits of all privileges, right and immunities available to any Subcontractor under such contract or compulsorily applicable law in respect of the Services provided.
Unless the Customer is a “Consumer” or “Small Business” and the Agreement with the Customer is a “Consumer Contract” or “Small Business Contract” as defined under the CCA:
the Customer undertakes that no claim or allegation shall be made against Cargo Bear’s employees, servants, agents, Subcontractors (including the Subcontractors’ employees and agents) or other person who may be vicariously liable for the acts or omissions of such parties which imposes or attempts to impose upon any such party any liability whatsoever in connection with the Customer Property or any Goods or Services provided by Cargo Bear whether or not arising out of negligence on the part of such party; and
if any such claim or allegation should nevertheless be made, the Customer will indemnify Cargo Bear against all consequences thereof. Without prejudice to the foregoing, every such party shall have the benefit of all provisions herein benefiting Cargo Bear as if such provisions were expressly for its benefit, and in entering into this contract, Cargo Bear, to the extent of these provisions, does so not only on its own behalf, but also as agent and trustee for such parties.
Orders and Payment
Any prices for Goods or Services, including fees, displayed on the Cargo Bear Platform are subject to change at Cargo Bear’s discretion without notice. It is the responsibility of the Customer to check the latest pricing.
Quotations for Services provided by Cargo Bear, including via the Cargo Bear Platform, are made on an immediate acceptance basis and are estimates only. The final charge for the Service may change depending on any change to the Order particulars or additional Service or charges/fees incurred, as will be advised by Cargo Bear to the Customer and will be payable by the Customer.
The Customer acknowledges that Customer Property may be inspected, including by weight and measurement, to determine compliance with the Order particulars. If a discrepancy is found, Cargo Bear reserves the right to modify the Order particulars (including the chosen carriage vehicle or other method of carriage used) and the Customer will be recharged based on the necessary modifications made by Cargo Bear.
The Customer acknowledges that charges displayed on the Cargo Bear Platform are exclusive of duties, taxes and other imposts by any Government Authority or any third party, including any person accepting delivery for the Customer, and that Cargo Bear is authorised to add such charges to the Order.
The Customer furthermore agrees to indemnify Cargo Bear in respect of any other disbursement, expense, cost, loss, fine or damage incurred by Cargo Bear in effecting a Service for the Customer and releases Cargo Bear from any liability in connection therewith.
By paying with credit or debit card, the Customer agrees to Cargo Bear debiting any additional charges payable by the Customer.
Cargo Bear may, at its absolute discretion, charge interest on all overdue amounts at the interest rate of two percent (2%) per month calculated daily on the outstanding balance and compounded monthly from the due date until full payment is received.
Certain forms of payment may be the subject of an administration percentage fee published by Cargo Bear or advised to the Customer from time to time.
All payments by the Customer must be made without any deduction, set–off or counterclaim, except as otherwise agreed in writing by Cargo Bear.
All invoices and statements will be issued by email, to the email address nominated by the Customer. Postage of invoices or statements is in Cargo Bear’s discretion and may incur an administrative charge.
Transport and Delivery
Except where otherwise offered by Cargo Bear, the Customer is responsible for, and the cost of, loading and unloading of the Customer Property on and from the relevant carriage vehicle.
In the event that there is a delay in the loading or unloading of the Customer Property by reason other than the default of Cargo bear, the Customer shall be liable for Cargo Bear’s expenses incurred by reason of the delay, including demurrage costs as notified by Cargo Bear.
The Customer has the right to inspect the carriage vehicle before the loading of the Customer Property. Absent any inspection and complaint, the carriage vehicle will be deemed to be in adequate and suitable condition for the carriage of the Customer Property.
The Customer will ensure that the Customer’s Property is securely and properly packed in compliance with any statutory requirements and recognised standards and in such condition so as to not cause damage or injury, or the likelihood of damage or injury, to the property of Cargo Bear or to any other goods, whether by spreading of damp, infestation, leakage or the escape of fumes or substances or howsoever caused during the performance of the Services, including any temporary period of storage or warehousing by Cargo Bear.
The Customer agrees that Cargo Bear is at all times authorised to open any document, wrapping, package or other container in which the Customer’s Property is placed or carried to inspect them either to determine their nature or condition or to determine their ownership.
The Customer authorises Cargo Bear, in effecting the Services, to allow inspection and/or release of the Customer Property or any information and/or documents of the Customer, the Customer Property, the Services or relating thereto as required by any Government Authority or any person accepting delivery of the Customer Property for the Customer.
If Cargo Bear is instructed by the Customer and agrees to use a particular method or type of Service, Cargo Bear shall give due consideration to the method or type designated but shall at all times have the right to choose or vary such method or type of Service or route and procedure adopted in respect of the Service performed. The Customer hereby authorises Cargo Bear to substitute alternate carriers or Service. For the avoidance of doubt, any change to the carriage vehicle or route employed by Cargo Bear for its own convenience will not be charged to the Customer.
Unless the Customer has chosen verification of identity, signature or other express terms for acceptance of the Customer’s Property by the consignee, Cargo Bear is authorised to deliver the Customer Property into the hands of any person at the delivery address nominated to Cargo Bear by the Customer, or to leave the Customer Property in or about the stated address.
If the Customer has requested verification of identity or signature and the nominated place of delivery is unattended, or if delivery cannot otherwise be effected for any other reason in Cargo Bear’s discretion, Cargo Bear may store the Customer’s Property at the Customer’s risk until delivery can be re-effected and charge the Customer a storage fee in accordance with its advertised fees and charges.
For the avoidance of doubt, delivery dates and times for Goods or Services specified or requested are estimates only and Cargo Bear shall not be liable for failure to deliver Goods or complete Services by such date(s) or time(s).
Where the Customer is offered to pay an increased charge for delivery within a specified time, such charge is in consideration of Cargo Bear’s implementation of alternative delivery methodology more likely to secure delivery by the specified time, but does not guarantee delivery by the specified time.
Insurance
Except where the Customer purchases insurance for the Customer’s Property from Cargo Bear as part of the Order, the Customer acknowledges that any insurance held by Cargo Bear in respect of the transportation of goods is for the sole benefit of Cargo Bear.
In acquiring insurance for the Customer, Cargo Bear will be acting as agent only on behalf of the Customer through a licensed insurance broker with an insurer. Any such insurance so arranged will be subject to the usual exceptions and conditions of policies of the insurer taking the risk including also its product disclosure statement, financial services guide and policy schedule which the Customer acknowledges it has read and are available on request.
If any claim pursuant to any policy of insurance arranged via Cargo Bear is declined for any reason, the Customer as the insured shall have no recourse against Cargo Bear whatsoever and any recourse by the Customer shall be against the insurer.
Any offer to procure insurance by Cargo Bear is made as is where is, the Customer is encouraged to consider if the terms of insurance are satisfactory to the Customer and or seek its own insurance cover for loss or damage the Customer may incur.
Should the Customer choose to insure itself or others for any loss or damage it may incur as a result of the Services, whether the insurance is arranged by Cargo Bear or the Customer, the Customer agrees that any rights of subrogation of the insurer are fully waived as against Cargo Bear, its employees, agents or Subcontractor(s) in respect of the Services and that Cargo Bear’s terms of liability, including any exclusions thereof, under these Trading Terms are not affected.
Valuables, Dangerous and Perishable Goods
Except as agreed in writing, Cargo Bear will not accept Valuables or Dangerous Goods for Services arranged or performed by Cargo Bear. Should the Customer nevertheless cause Cargo Bear to handle or deal with any such goods, the Customer (not Cargo Bear) shall be liable for any loss, damage or cost thereto or consequent thereon whether direct, indirect or consequential and howsoever caused, and the Customer agrees to indemnify Cargo Bear from and against all penalties, taxes, duties, claims, demands, damages, costs and expenses arising in connection therewith.
Any Dangerous Goods may be destroyed in the sole and absolute discretion of Cargo Bear or any other person in whose custody they may be at the relevant time. In the event that the Dangerous Goods are destroyed or otherwise dealt with as aforesaid, Cargo Bear shall bear no liability and the Customer agrees to indemnify Cargo Bear from and against all costs and expenses with respect thereto.
The Customer agrees that Perishable Goods may be the subject of limitations of carriage as listed in the Cargo Bear Platform.
The Customer agrees that Cargo Bear accepts no responsibility for the perishing of any Perishable Goods whether prior to or as a result of any delay in delivery of the Perishable Goods.
Customer Warranties and Indemnity
The Customer warrants that:
That the Customer is the owner of the Customer Property or otherwise has the authority of the owner or person having an interest in the Customer Property to arrange the Customer Property to be carried, stored and otherwise handled by Cargo Bear in accordance with the Order terms and these Trading Terms;
That the person releasing or delivering the Customer Property to Cargo Bear is authorised to do so, including to sign any letter of instruction or other contractual document and/or otherwise accept and agree to these Trading Terms and any other conditions on the Customer’s behalf.
The adequacy of packing, stowing and suitability of the Customer Property for the Services contracted;
The accuracy of all markings and brandings of the Customer Property, descriptions, values and other particulars furnished to Cargo Bear for the carriage, customs, consular and any other purposes in connection with the Services;
That the performance of the Services at the request or in accordance with the instructions of the Customer or any person on its behalf will not place Cargo Bear in breach of any law.
That the Customer will exercise all reasonable care and comply with all applicable laws, Government regulations/directions and industry standards including those relating to the packing, carriage, storage, customs clearance, delivery, inspection or other Services in respect of the Customer Property, and shall provide such information and documents as may be necessary to exercise such care and comply with such laws, regulations and standards.
Cargo Bear shall not be liable to the Customer or any other party for loss or expense due to the Customer’s failure to comply with the foregoing warranties, and the Customer will indemnify Cargo Bear for any cost, expense, damage or liability whatsoever (including legal costs on a full indemnity basis) incurred by Cargo Bear as a result of such failure.
The Customer further agrees to indemnify Cargo Bear in respect of any claim, loss, damage, payment, fine, expense, duty, tax, impost, outlay, cost or other liability incurred by Cargo Bear:
howsoever caused or incurred, whether arising directly or indirectly from any Service arranged or performed by Cargo Bear; and/or
as a result of any breach of these Trading Terms by the Customer.
Without limiting the generality of the foregoing, the Customer shall remain responsible to Cargo Bear for all charges (C.O.D. or otherwise) paid by Cargo Bear to any person (including Subcontractors) on account of performance of the Services for the Customer.
The Customer indemnity is not affected by the nature or any inherent defect, quality or vice of the Customer Property.
Termination
Where the Customer has created an account for the order of Goods and Services on the Cargo Bear Platform, the Customer acknowledges that Cargo Bear may terminate such account at any time and without notice to the Customer. Cargo Bear is not liable to the Customer for any account termination.
The Customer may not terminate an Agreement for Goods or Services except with the prior approval of Cargo Bear in its sole discretion. Cargo Bear will endeavour, where possible, to discontinue supply of Goods or Services in case of a requested termination, provided that the Customer remains liable for any cost incurred by Cargo Bear up to the time that performance can be terminated, and any cost incurred in stopping performance, including return of Customer Property to the Customer.
Goods ordered by the Customer may be the subject of such returns policy as advised by Cargo Bear from time to time.
Cargo Bear may terminate an Agreement for Goods and Services at any time by notice to the Customer, including, but not limited to, where the Customer is in breach of this Agreement, which shall include if the Customer is or becomes insolvent within the meaning of the Corporations Act 2001 (Cth).
Should Cargo Bear terminate the Agreement:
except where termination is due to the breach of the Customer, Cargo Bear will refund to the Customer any consideration received by Cargo Bear from the Customer on account of the Goods or Services (provided that refund of Goods will be subject to return of any Goods undamaged by the Customer);
Cargo Bear will, subject to any payment owed by the Customer under clause 10.4.3, forthwith return any Customer Property to the Customer at the same place where the Customer Property was collected unless otherwise approved by Cargo Bear; and
if termination is due to the breach of the Customer, the Customer remains liable to pay to Cargo Bear all charges associated with the Goods and Services and any additional monies payable by the Customer pursuant to any indemnity under these Trading Terms, all such monies being a liquidated debt payable on demand.
Limitation of Liability
Subject to the terms and conditions in this contract and mandatory applicable statute, convention or law, Cargo Bear shall not be liable for any loss or damage suffered by the Customer or any other person:
due to Cargo Bear’s delivery of Goods or performance of Services in accordance with the terms of the Order or any other request by the Customer;
due to Cargo Bear exercising its rights or discretions under these Trading Terms;
due to Cargo Bear complying with any requirement of any Government Authority including examination or other treatment of the Customer Property by any Government Authority (including without limitation, any fumigation or decontamination or other treatment by AQIS);
arising due to the actions or omissions of the Customer or any agent, consignor or consignee of the Customer; and
howsoever else arising, except due to negligence of Cargo Bear or its servants, employees, agents, Subcontractors or otherwise.
In all cases where liability cannot be excluded because of mandatory applicable statute, convention or law, the liability of Cargo Bear is limited to:
in the case of an order for supply of Goods, the re-supply of the Goods or payment of the cost to procure another person to supply the Goods or similar Goods;
in the case of a defect in delivery of the Services, the re-supply of the Services or payment of the cost to procure another person to supply the Services;
in the case of loss or damage to the Customer Property, the lesser of:
the value of the Customer Property stipulated in the Order;
the reasonable market value of the Customer Property; or
the sum of $2,000
Subject to the terms and conditions in this contract and mandatory applicable statute, convention or law, Cargo Bear shall not be liable in respect of a claim by the Customer against Cargo Bear except where the claim is made in writing to Cargo Bear within thirty (30) days after the earlier of the date the cause for claim arises or the Goods are delivered or Services completed by Cargo Bear.
Except to the extent prohibited by law, Cargo Bear shall have no liability to any person for any other loss or damage of any kind whatsoever including any indirect, incidental, punitive, special, or consequential damages of any kind, including, without limitation lost profits, lost revenue, lost savings, lost opportunity, loss of data or any similar damages, whether based in contract, tort (including negligence), strict liability or otherwise.
In all cases where liability cannot be limited or excluded because of mandatory applicable statute, convention or law including any legislation making compulsorily applicable a Carriage by Air Convention, the Hague Rules, the Hague-Visby Rules, or the Hamburg Rules, or adaptations thereof, [such as the Australian Carriage of Goods by Sea Act (1991), the New Zealand Maritime Transport Act (1994), or the Carriage of Goods by Sea Act of the United States (1936) – all as amended from time to time – the provisions of the applicable statute, convention or law shall be deemed incorporated herein and any rights, immunities and/or defences therein shall be available to Cargo Bear.
For the avoidance of doubt, these Trading Terms do not affect the Customer’s rights pursuant to Schedule 2 of the CCA if the Customer is a “Consumer” or “Small Business” and the Agreement with the Customer is a “Consumer Contract” or “Small Business Contract”, as such terms are defined under the CCA. To the extent that any term or a part thereof is rendered inapplicable or void by the CCA or any other legislation, it shall be rendered inapplicable or void but only to the extent required to give effect to that legislation.
Where the Customer is requested to state if the Goods or Services are acquired for the purpose of personal or business purposes, the Customer warrants the accuracy of such statement.
Security Over Customer Property
Cargo Bear has the right to:
exercise a general lien over all Customer Property and any associated documents of the Customer in respect of any moneys owed by the Customer to Cargo Bear; and
sell the Customer Property or a portion thereof and direct the proceeds of sale to payment to Cargo Bear of moneys owed by the Customer to Cargo Bear and remit any balance remaining (if such exists) to the Customer, provided that Cargo Bear will notify the Customer and all other relevant persons of its intention to sell the goods in accordance with the requirements of mandatorily applicable legislation. If no such legislation applies, Cargo Bear will exercise its right to sell the goods or a portion thereof after a period of 7 days from the date which Cargo Bear notifies the Customer that it is exercising its rights of sale.
The Customer agrees that Cargo Bear’s rights under these Trading Terms are a security interest in the Customer Property in favour of Cargo Bear within the meaning of the PPSA.
The Customer agrees to:
sign any documents or provide further documents or information required by Cargo Bear to register a financing statement or financing change statement in respect of a security interest with the Personal Property Securities Register, register any other documents required by the PPSA or correct any such document(s).
indemnify Cargo Bear for all expenses incurred in attending to the steps outlined in 11.3.2 above and releasing any interests from the Register.
The Customer must not:
register a financing change statement in respect of a security interest against Cargobear without prior written consent by Cargobear; or
after the placing of an Order, register, nor permit to be registered, a financing statement or a financing change statement in relation to the Customer Property in favour of a third party without the prior written consent of Cargobear.
Cargo Bear and Customer agree that sections 96, 117 and 125 of the PPSA do not apply to the security agreement created by these Trading Terms.
The Customer hereby waives the Customer’s right to receive notices or verification statements under sections 95, 118, 121(4),123, 130, 132(3)(d), 132(4), 135 and 157 of the PPSA.
The Customer waives the Customer’s rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
The Customer agrees to ratify unconditionally any actions taken by Cargo Bear pursuant to registration related requirements under the PPSA and as referred in the foregoing provisions of this clause.
Sale and Disposal of Customer Property
The Customer will be considered to have abandoned the Customer Property if Cargo Bear is unable to effect delivery of the Customer Property and the Customer fails to respond to Cargo Bear providing sufficient instructions and or payment of redelivery or return of the Customer Property within thirty (30) days after Cargo Bear’s first request for instructions.
Cargo Bear shall be entitled at the cost and expense of the Customer, subject to any compliance with any applicable law, to sell or dispose of:
any Perishable Goods which in the opinion of Cargo Bear appear to have perished; and
Customer Property considered abandoned pursuant to these Trading Terms.
If the Customer Property is sold pursuant to clause 12.1, Cargo Bear shall be entitled to apply the proceeds of sale to discharge any fees and charges owed by the Customer, including the costs of sale. Any balance of any proceeds remaining following such discharge will be remitted to the Customer.
Cargo Bear Platform and Intellectual Property
Cargo Bear may from time to time operate one or more Cargo Bear Platforms for the placement of Orders for Goods and Services by the Customer.
The Customer agrees to access and utilise any Cargo Bear Platforms in accordance with these Trading Terms and any additional terms stipulated in the Cargo Bear Platform.
For the avoidance of doubt, it shall be the Customer’s responsibility to maintain the secrecy of any credentials issued to the Customer for the use of the Cargo Bear Platform and Cargo Bear shall be entitled to act upon any Order made using the Customer’s credentials for which the Customer will be liable under these Trading Terms.
The Customer’s indemnity in clause 8.4 of these Trading Terms extends to any loss or damage occasioned through the unauthorised or inappropriate use of the Customer’s credentials on the Cargo Bear Platform including but not limited to any malicious cyber activity.
The Customer acknowledges and agrees that (as between Cargo Bear and the Customer) Cargo Bear owns and retains all intellectual property rights of any kind (whether or not registered or capable of registration) in the Cargo Bear Platform, any Goods advertised for sale by Cargo Bear, and in all Services, and that the sale of Goods or Services to the Customer does not include the transfer of any intellectual property rights to the Customer. No right or licence is hereby granted to the Customer to use any intellectual property right of Cargo Bear.
The Customer must not deal in the intellectual property rights of Cargo Bear, including but not limited to extracting or scraping information and or reverse engineer any aspect of the Cargo Bear Platform or assist any other person to do so.
The parties agree that damages may not be a sufficient or appropriate remedy for a breach by the Customer of the terms of this clause 13 and that Cargo Bear shall be expressly entitled to obtain an order or orders to prohibit any action by the Customer contrary to this clause 13.
Force Majeure
In this clause 14 a ‘Force Majeure Event’ means any event or circumstance that:
is not within Cargo Bear’s reasonable control or ability to prevent or overcome by the exercise of reasonable care; and
causes Cargo Bear to fail to perform any of Cargo Bear’s obligations under the Agreement with the Customer; but does not include any event or circumstance that arises as a result of any lack of funds for any reason or any other inability to pay; or negligent act or omission by Cargo Bear.
If Cargo Bear becomes unable wholly or in part by a Force Majeure Event to carry out an obligation under its Agreement with the Customer:
that obligation will be suspended for the duration of the Force Majeure Event; and
Cargo Bear will not have any liability to the Customer for any loss arising from or in connection with the non-performance of that obligation for the duration of the Force Majeure Event.
Notwithstanding the above, if a delay or failure by Cargo Bear to perform Cargo Bear’s obligations under the Agreement due to a Force Majeure exceeds ninety (90) days, either party may immediately terminate the Agreement by providing seven (7) days notice to the other party.
Privacy
The Customer warrants to have read and consents to Cargo Bear’s collection, storage, disclosure and destruction of any personal information provided by the Customer in accordance with Cargo Bear’s privacy policy available on the Cargo Bear Platform.
The Customer confirms that any personal information provided by the Customer will be accurate and complete. Furthermore, the Customer agrees to provide updated information, as and when further information is requested by Cargo Bear for the purpose of reviewing the credit history of the Customer (if applicable), updating Cargo Bear’s credit file on the Customer (if any) and/or attending to any other assessment or matter in connection with Orders by the Customer.
Dispute Resolution
The United Nations Convention on Contracts for the International Sale of Goods does not apply to the Agreement or these Trading Terms.
If any dispute arises between the parties, either party may serve on the other a notice of dispute and agrees to comply with the provisions of clause 16.3 before commencing any litigation against the other.
Within ten (10) days after service of a notice of dispute referred to in clause 16.3 the parties must confer, acting in good faith, within a period of no less than fourteen (14) days and at least once in person (if requested by Cargo Bear), to attempt to resolve the dispute and failing resolution of dispute, to explore and if possible, agree on methods of resolving the dispute. At each conference, each party must be represented by a person having authority to resolve the dispute in the course of the conference.
This clause does not prejudice the right of either party to seek urgent interlocutory relief or an injunction.
Notices
Notices to be given by the Customer to Cargo Bear must be in writing and delivered to Cargo Bear:
personally at the office address of Cargo Bear as publicly listed, in which case they will be taken to be received when delivered;
by pre-paid post to the postal address of Cargo Bear as publicly listed, in which case they will be taken to be received, except for evidence to the contrary, only when confirmed as received by Cargo Bear; or
by email to Cargo Bear at crew@cargobear.com.au unless another email address for correspondence is advised to be used by Cargo Bear from time to time, in which case they will be taken to be received at the time stated in a read receipt obtained by the Customer’s server stating that the email has been read by Cargo Bear, or if no read receipt is created, when replied to or otherwise confirmed received by Cargo Bear.
Notices required to be given by Cargo Bear to the Customer must be in writing and delivered to the Customer:
personally at the office address of the Customer as stated in the Order or any standing account of the Customer on the Cargo Bear Platform, or otherwise notified by the Customer or publicly listed on any website of the Customer, in which case they will be taken to be received when delivered;
by pre-paid post to the postal address of the Customer as stated in the Order or any standing account of the Customer on the Cargo Bear Platform, or otherwise notified by the Customer or publicly listed on any website of the Customer, in which case they will be taken to be received two (2) Business Days after postage by Cargo Bear;
by email to the Customer at the email address for correspondence advised by the Customer as stated in the Order or any standing account of the Customer on the Cargo Bear Platform, or otherwise notified by the Customer or publicly listed on any website of the Customer, in which case they will be taken to be received at the time stated in a read receipt obtained by the Customer’s server stating that the email has been read by Cargo Bear, or if no read receipt is created, two (2) Business Days after transmission, unless Cargo Bear receives notification that the email communication has been delayed or impaired.
For the purpose of this clause, the Customer and Cargo Bear hereby agree and consent to communications and notices in relation to the Agreement being sent via electronic communication.
Miscellaneous
Cargo Bear may vary any these Trading Terms from time to time by notice to the Customer and the new terms specified by Cargo Bear will apply from such notice, provided that, if the Cargo Bear issues a terms update under this clause and the Customer does not wish to accept it, the Customer may terminate its Agreement by notice in writing given to Cargo Bear within thirty (30) days of issue of the updated terms, failing which the Customer is taken to have accepted the updated terms. If the Customer terminates its Agreement with Cargo Bear, the prior terms will apply to any Orders by the Customer until the date the Agreement ends.
If anything in these Trading Terms or other parts of the Agreement is unenforceable, illegal or void then that thing is severed and the rest of the Agreement remains in full force and effect.
Any failure by Cargo Bear to exercise any right or to insist on strict performance of any obligation of the Customer under these Trading Terms or other parts of the Agreement does not operate as a waiver and a partial exercise of a right does not preclude any further or fuller exercise of that right.
These Trading Terms or any other part of the Agreement are not to be construed to the disadvantage of a party because that party was responsible for their preparation.
Cargo Bear may assign the benefit of the Agreement to any other third party who acquires Cargo Bear’s business of supplying the Goods and or Services. Upon notice by Cargo Bear to the Customer of such an assignment, all obligations of the Customer shall then be in favour of the stated assignee.
The Customer agrees that these Trading Terms and the Agreement generally shall be construed according to the laws of the State of Queensland. Proceedings by either Cargo Bear or the Customer may be instituted and/or continued in any Court in such State.
Contact Us
If you have any questions about this Privacy Policy, You can contact us: By email: crew@cargobear.com.au
By purchasing Goods or Services from Cargobear, the Customer agrees to accept and be bound by these Trading Terms. All business undertaken by Cargobear for the Customer will be deemed transacted on these Trading Terms unless otherwise agreed by Cargobear. These Trading Terms override any terms stipulated by the Customer, except as expressly agreed in writing by Cargobear.
Definitions and Interpretation
In these Trading Terms, except where otherwise specified:
Agreement means the agreement for the supply of Goods and Services by Cargo Bear to the Customer that comes into being when an Order for Goods or Services is made by the Customer, whether through a Cargo Bear Platform or in any other manner.
Business Day means a day that is not a Saturday, Sunday or any other day which is a public holiday or a bank holiday in the place where an act is to be performed, a notice is to be received, or a payment is to be made.
Cargobear means Beestons Group Pty Ltd
Cargobear Platform means each website, application and other technology system via which a Customer may make an Order for Goods and Services by Cargobear.
Carriage by Air Convention means applicable legislation incorporating the Warsaw Convention (1929), the Warsaw Convention as Amended at the Hague (1955) and Warsaw supplementary protocols such as the “Guadalajara Convention”, Protocol of Montreal No. 4 or the Montreal Convention (1999).
CCA means the Australian Competition & Consumer Act 2010 (Cth).
Customer means any person, firm or company placing an Order with Cargobear for the purchase of any Goods and Services. If the Customer is comprised of more than one person then “Customer” means those persons collectively and each of them individually and the obligations and liabilities on the part of the Customer in these Trading Terms binds all of them jointly and each of them severally.
Customer Property means goods and other physical property provided by the Customer to be transported and or stored by Cargobear pursuant to any Services.
Dangerous Goods shall mean such of the Customer Property as shall be, or become, in fact or at law noxious, dangerous, hazardous, explosive, radioactive, inflammable or capable by their nature of causing damage or injury to other goods, persons, plants or animals or to any thing including that in which the Customer Property are carried, handled or stored.
Goods means goods supplied or to be supplied to the Customer whether in connection with or separately to Services.
Government Authority means, without limitation, all Government Departments with responsibility for the import and export of goods, the collection of revenue on the import and export of goods and the transport of those goods to include, without limitation, Australian Customs Service (ACS), Australian Quarantine Inspection Service (AQIS) and Australian Taxation Office (ATO).
Order means any order by the Customer for supply of Goods and or Services.
Perishable Goods means Customer Property which may deteriorate in quality and/or value over time and shall include, but not be limited to, food products, flowers and plants and other vegetation.
PPSA means the Personal Property Securities Act 2009 (Cth).
Quotation means any proposal to supply Goods and or Services issued by Cargobear outlining the likely cost of an Order.
Services means carriage, transport, movement, packing, handling, storage/warehousing, customs clearance and/or any other service arranged or performed by Cargobear, pursuant to, or ancillary to an Order by the Customer.
Subcontractor means any person, firm or company that is engaged by Cargobear in the supply of Services (or any part thereof).
Trading Terms means these terms and conditions.
Valuables means any Customer Property, including without limitation bullion, coins, precious stones, jewellery, antiques, or works of art for a value, individually or collectively as part of a single Order, exceeding $5,000 AUD.
Headings are for convenience only and do not form part of these terms and conditions of sale.
Reference to the singular includes the plural and the plural includes the singular.
Reference to one gender includes the others.
A person includes an individual or corporation or other legal entity as applicable.
Company's Capacity
The Customer acknowledges and agrees that CargoBear is and acts as an agent only when performing Services (or any part thereof). Without limiting the generality of this statement, Cargo Bear acts as agent when an air, road or sea carrier issues an air waybill, consignment note or sea carriage document for the designated carriage in that document naming the Customer or its agent (excluding Cargo Bear) as shipper and/or consignee in said document. Cargo Bear’s supply of Goods, whether paid for or on loan, including containers and other equipment, as part of the Services does not render Cargo Bear a principal.
The Customer further acknowledges and agrees that Cargo Bear is not a common carrier and accepts no liability as such.
Relationship with Drivers and Contractors
Cargo Bear may subcontract any part of the Services to any Subcontractor chosen by Cargo Bear in the name of the Customer, pursuant to its agency with the Customer. Cargo Bear may decide Subcontractor terms of engagement in its discretion including terms which may limit or exclude liability in respect of the Services. In any event, Cargo Bear shall be entitled to the full benefits of all privileges, right and immunities available to any Subcontractor under such contract or compulsorily applicable law in respect of the Services provided.
Unless the Customer is a “Consumer” or “Small Business” and the Agreement with the Customer is a “Consumer Contract” or “Small Business Contract” as defined under the CCA:
the Customer undertakes that no claim or allegation shall be made against Cargo Bear’s employees, servants, agents, Subcontractors (including the Subcontractors’ employees and agents) or other person who may be vicariously liable for the acts or omissions of such parties which imposes or attempts to impose upon any such party any liability whatsoever in connection with the Customer Property or any Goods or Services provided by Cargo Bear whether or not arising out of negligence on the part of such party; and
if any such claim or allegation should nevertheless be made, the Customer will indemnify Cargo Bear against all consequences thereof. Without prejudice to the foregoing, every such party shall have the benefit of all provisions herein benefiting Cargo Bear as if such provisions were expressly for its benefit, and in entering into this contract, Cargo Bear, to the extent of these provisions, does so not only on its own behalf, but also as agent and trustee for such parties.
Orders and Payment
Any prices for Goods or Services, including fees, displayed on the Cargo Bear Platform are subject to change at Cargo Bear’s discretion without notice. It is the responsibility of the Customer to check the latest pricing.
Quotations for Services provided by Cargo Bear, including via the Cargo Bear Platform, are made on an immediate acceptance basis and are estimates only. The final charge for the Service may change depending on any change to the Order particulars or additional Service or charges/fees incurred, as will be advised by Cargo Bear to the Customer and will be payable by the Customer.
The Customer acknowledges that Customer Property may be inspected, including by weight and measurement, to determine compliance with the Order particulars. If a discrepancy is found, Cargo Bear reserves the right to modify the Order particulars (including the chosen carriage vehicle or other method of carriage used) and the Customer will be recharged based on the necessary modifications made by Cargo Bear.
The Customer acknowledges that charges displayed on the Cargo Bear Platform are exclusive of duties, taxes and other imposts by any Government Authority or any third party, including any person accepting delivery for the Customer, and that Cargo Bear is authorised to add such charges to the Order.
The Customer furthermore agrees to indemnify Cargo Bear in respect of any other disbursement, expense, cost, loss, fine or damage incurred by Cargo Bear in effecting a Service for the Customer and releases Cargo Bear from any liability in connection therewith.
By paying with credit or debit card, the Customer agrees to Cargo Bear debiting any additional charges payable by the Customer.
Cargo Bear may, at its absolute discretion, charge interest on all overdue amounts at the interest rate of two percent (2%) per month calculated daily on the outstanding balance and compounded monthly from the due date until full payment is received.
Certain forms of payment may be the subject of an administration percentage fee published by Cargo Bear or advised to the Customer from time to time.
All payments by the Customer must be made without any deduction, set–off or counterclaim, except as otherwise agreed in writing by Cargo Bear.
All invoices and statements will be issued by email, to the email address nominated by the Customer. Postage of invoices or statements is in Cargo Bear’s discretion and may incur an administrative charge.
Transport and Delivery
Except where otherwise offered by Cargo Bear, the Customer is responsible for, and the cost of, loading and unloading of the Customer Property on and from the relevant carriage vehicle.
In the event that there is a delay in the loading or unloading of the Customer Property by reason other than the default of Cargo bear, the Customer shall be liable for Cargo Bear’s expenses incurred by reason of the delay, including demurrage costs as notified by Cargo Bear.
The Customer has the right to inspect the carriage vehicle before the loading of the Customer Property. Absent any inspection and complaint, the carriage vehicle will be deemed to be in adequate and suitable condition for the carriage of the Customer Property.
The Customer will ensure that the Customer’s Property is securely and properly packed in compliance with any statutory requirements and recognised standards and in such condition so as to not cause damage or injury, or the likelihood of damage or injury, to the property of Cargo Bear or to any other goods, whether by spreading of damp, infestation, leakage or the escape of fumes or substances or howsoever caused during the performance of the Services, including any temporary period of storage or warehousing by Cargo Bear.
The Customer agrees that Cargo Bear is at all times authorised to open any document, wrapping, package or other container in which the Customer’s Property is placed or carried to inspect them either to determine their nature or condition or to determine their ownership.
The Customer authorises Cargo Bear, in effecting the Services, to allow inspection and/or release of the Customer Property or any information and/or documents of the Customer, the Customer Property, the Services or relating thereto as required by any Government Authority or any person accepting delivery of the Customer Property for the Customer.
If Cargo Bear is instructed by the Customer and agrees to use a particular method or type of Service, Cargo Bear shall give due consideration to the method or type designated but shall at all times have the right to choose or vary such method or type of Service or route and procedure adopted in respect of the Service performed. The Customer hereby authorises Cargo Bear to substitute alternate carriers or Service. For the avoidance of doubt, any change to the carriage vehicle or route employed by Cargo Bear for its own convenience will not be charged to the Customer.
Unless the Customer has chosen verification of identity, signature or other express terms for acceptance of the Customer’s Property by the consignee, Cargo Bear is authorised to deliver the Customer Property into the hands of any person at the delivery address nominated to Cargo Bear by the Customer, or to leave the Customer Property in or about the stated address.
If the Customer has requested verification of identity or signature and the nominated place of delivery is unattended, or if delivery cannot otherwise be effected for any other reason in Cargo Bear’s discretion, Cargo Bear may store the Customer’s Property at the Customer’s risk until delivery can be re-effected and charge the Customer a storage fee in accordance with its advertised fees and charges.
For the avoidance of doubt, delivery dates and times for Goods or Services specified or requested are estimates only and Cargo Bear shall not be liable for failure to deliver Goods or complete Services by such date(s) or time(s).
Where the Customer is offered to pay an increased charge for delivery within a specified time, such charge is in consideration of Cargo Bear’s implementation of alternative delivery methodology more likely to secure delivery by the specified time, but does not guarantee delivery by the specified time.
Insurance
Except where the Customer purchases insurance for the Customer’s Property from Cargo Bear as part of the Order, the Customer acknowledges that any insurance held by Cargo Bear in respect of the transportation of goods is for the sole benefit of Cargo Bear.
In acquiring insurance for the Customer, Cargo Bear will be acting as agent only on behalf of the Customer through a licensed insurance broker with an insurer. Any such insurance so arranged will be subject to the usual exceptions and conditions of policies of the insurer taking the risk including also its product disclosure statement, financial services guide and policy schedule which the Customer acknowledges it has read and are available on request.
If any claim pursuant to any policy of insurance arranged via Cargo Bear is declined for any reason, the Customer as the insured shall have no recourse against Cargo Bear whatsoever and any recourse by the Customer shall be against the insurer.
Any offer to procure insurance by Cargo Bear is made as is where is, the Customer is encouraged to consider if the terms of insurance are satisfactory to the Customer and or seek its own insurance cover for loss or damage the Customer may incur.
Should the Customer choose to insure itself or others for any loss or damage it may incur as a result of the Services, whether the insurance is arranged by Cargo Bear or the Customer, the Customer agrees that any rights of subrogation of the insurer are fully waived as against Cargo Bear, its employees, agents or Subcontractor(s) in respect of the Services and that Cargo Bear’s terms of liability, including any exclusions thereof, under these Trading Terms are not affected.
Valuables, Dangerous and Perishable Goods
Except as agreed in writing, Cargo Bear will not accept Valuables or Dangerous Goods for Services arranged or performed by Cargo Bear. Should the Customer nevertheless cause Cargo Bear to handle or deal with any such goods, the Customer (not Cargo Bear) shall be liable for any loss, damage or cost thereto or consequent thereon whether direct, indirect or consequential and howsoever caused, and the Customer agrees to indemnify Cargo Bear from and against all penalties, taxes, duties, claims, demands, damages, costs and expenses arising in connection therewith.
Any Dangerous Goods may be destroyed in the sole and absolute discretion of Cargo Bear or any other person in whose custody they may be at the relevant time. In the event that the Dangerous Goods are destroyed or otherwise dealt with as aforesaid, Cargo Bear shall bear no liability and the Customer agrees to indemnify Cargo Bear from and against all costs and expenses with respect thereto.
The Customer agrees that Perishable Goods may be the subject of limitations of carriage as listed in the Cargo Bear Platform.
The Customer agrees that Cargo Bear accepts no responsibility for the perishing of any Perishable Goods whether prior to or as a result of any delay in delivery of the Perishable Goods.
Customer Warranties and Indemnity
The Customer warrants that:
That the Customer is the owner of the Customer Property or otherwise has the authority of the owner or person having an interest in the Customer Property to arrange the Customer Property to be carried, stored and otherwise handled by Cargo Bear in accordance with the Order terms and these Trading Terms;
That the person releasing or delivering the Customer Property to Cargo Bear is authorised to do so, including to sign any letter of instruction or other contractual document and/or otherwise accept and agree to these Trading Terms and any other conditions on the Customer’s behalf.
The adequacy of packing, stowing and suitability of the Customer Property for the Services contracted;
The accuracy of all markings and brandings of the Customer Property, descriptions, values and other particulars furnished to Cargo Bear for the carriage, customs, consular and any other purposes in connection with the Services;
That the performance of the Services at the request or in accordance with the instructions of the Customer or any person on its behalf will not place Cargo Bear in breach of any law.
That the Customer will exercise all reasonable care and comply with all applicable laws, Government regulations/directions and industry standards including those relating to the packing, carriage, storage, customs clearance, delivery, inspection or other Services in respect of the Customer Property, and shall provide such information and documents as may be necessary to exercise such care and comply with such laws, regulations and standards.
Cargo Bear shall not be liable to the Customer or any other party for loss or expense due to the Customer’s failure to comply with the foregoing warranties, and the Customer will indemnify Cargo Bear for any cost, expense, damage or liability whatsoever (including legal costs on a full indemnity basis) incurred by Cargo Bear as a result of such failure.
The Customer further agrees to indemnify Cargo Bear in respect of any claim, loss, damage, payment, fine, expense, duty, tax, impost, outlay, cost or other liability incurred by Cargo Bear:
howsoever caused or incurred, whether arising directly or indirectly from any Service arranged or performed by Cargo Bear; and/or
as a result of any breach of these Trading Terms by the Customer.
Without limiting the generality of the foregoing, the Customer shall remain responsible to Cargo Bear for all charges (C.O.D. or otherwise) paid by Cargo Bear to any person (including Subcontractors) on account of performance of the Services for the Customer.
The Customer indemnity is not affected by the nature or any inherent defect, quality or vice of the Customer Property.
Termination
Where the Customer has created an account for the order of Goods and Services on the Cargo Bear Platform, the Customer acknowledges that Cargo Bear may terminate such account at any time and without notice to the Customer. Cargo Bear is not liable to the Customer for any account termination.
The Customer may not terminate an Agreement for Goods or Services except with the prior approval of Cargo Bear in its sole discretion. Cargo Bear will endeavour, where possible, to discontinue supply of Goods or Services in case of a requested termination, provided that the Customer remains liable for any cost incurred by Cargo Bear up to the time that performance can be terminated, and any cost incurred in stopping performance, including return of Customer Property to the Customer.
Goods ordered by the Customer may be the subject of such returns policy as advised by Cargo Bear from time to time.
Cargo Bear may terminate an Agreement for Goods and Services at any time by notice to the Customer, including, but not limited to, where the Customer is in breach of this Agreement, which shall include if the Customer is or becomes insolvent within the meaning of the Corporations Act 2001 (Cth).
Should Cargo Bear terminate the Agreement:
except where termination is due to the breach of the Customer, Cargo Bear will refund to the Customer any consideration received by Cargo Bear from the Customer on account of the Goods or Services (provided that refund of Goods will be subject to return of any Goods undamaged by the Customer);
Cargo Bear will, subject to any payment owed by the Customer under clause 10.4.3, forthwith return any Customer Property to the Customer at the same place where the Customer Property was collected unless otherwise approved by Cargo Bear; and
if termination is due to the breach of the Customer, the Customer remains liable to pay to Cargo Bear all charges associated with the Goods and Services and any additional monies payable by the Customer pursuant to any indemnity under these Trading Terms, all such monies being a liquidated debt payable on demand.
Limitation of Liability
Subject to the terms and conditions in this contract and mandatory applicable statute, convention or law, Cargo Bear shall not be liable for any loss or damage suffered by the Customer or any other person:
due to Cargo Bear’s delivery of Goods or performance of Services in accordance with the terms of the Order or any other request by the Customer;
due to Cargo Bear exercising its rights or discretions under these Trading Terms;
due to Cargo Bear complying with any requirement of any Government Authority including examination or other treatment of the Customer Property by any Government Authority (including without limitation, any fumigation or decontamination or other treatment by AQIS);
arising due to the actions or omissions of the Customer or any agent, consignor or consignee of the Customer; and
howsoever else arising, except due to negligence of Cargo Bear or its servants, employees, agents, Subcontractors or otherwise.
In all cases where liability cannot be excluded because of mandatory applicable statute, convention or law, the liability of Cargo Bear is limited to:
in the case of an order for supply of Goods, the re-supply of the Goods or payment of the cost to procure another person to supply the Goods or similar Goods;
in the case of a defect in delivery of the Services, the re-supply of the Services or payment of the cost to procure another person to supply the Services;
in the case of loss or damage to the Customer Property, the lesser of:
the value of the Customer Property stipulated in the Order;
the reasonable market value of the Customer Property; or
the sum of $2,000
Subject to the terms and conditions in this contract and mandatory applicable statute, convention or law, Cargo Bear shall not be liable in respect of a claim by the Customer against Cargo Bear except where the claim is made in writing to Cargo Bear within thirty (30) days after the earlier of the date the cause for claim arises or the Goods are delivered or Services completed by Cargo Bear.
Except to the extent prohibited by law, Cargo Bear shall have no liability to any person for any other loss or damage of any kind whatsoever including any indirect, incidental, punitive, special, or consequential damages of any kind, including, without limitation lost profits, lost revenue, lost savings, lost opportunity, loss of data or any similar damages, whether based in contract, tort (including negligence), strict liability or otherwise.
In all cases where liability cannot be limited or excluded because of mandatory applicable statute, convention or law including any legislation making compulsorily applicable a Carriage by Air Convention, the Hague Rules, the Hague-Visby Rules, or the Hamburg Rules, or adaptations thereof, [such as the Australian Carriage of Goods by Sea Act (1991), the New Zealand Maritime Transport Act (1994), or the Carriage of Goods by Sea Act of the United States (1936) – all as amended from time to time – the provisions of the applicable statute, convention or law shall be deemed incorporated herein and any rights, immunities and/or defences therein shall be available to Cargo Bear.
For the avoidance of doubt, these Trading Terms do not affect the Customer’s rights pursuant to Schedule 2 of the CCA if the Customer is a “Consumer” or “Small Business” and the Agreement with the Customer is a “Consumer Contract” or “Small Business Contract”, as such terms are defined under the CCA. To the extent that any term or a part thereof is rendered inapplicable or void by the CCA or any other legislation, it shall be rendered inapplicable or void but only to the extent required to give effect to that legislation.
Where the Customer is requested to state if the Goods or Services are acquired for the purpose of personal or business purposes, the Customer warrants the accuracy of such statement.
Security Over Customer Property
Cargo Bear has the right to:
exercise a general lien over all Customer Property and any associated documents of the Customer in respect of any moneys owed by the Customer to Cargo Bear; and
sell the Customer Property or a portion thereof and direct the proceeds of sale to payment to Cargo Bear of moneys owed by the Customer to Cargo Bear and remit any balance remaining (if such exists) to the Customer, provided that Cargo Bear will notify the Customer and all other relevant persons of its intention to sell the goods in accordance with the requirements of mandatorily applicable legislation. If no such legislation applies, Cargo Bear will exercise its right to sell the goods or a portion thereof after a period of 7 days from the date which Cargo Bear notifies the Customer that it is exercising its rights of sale.
The Customer agrees that Cargo Bear’s rights under these Trading Terms are a security interest in the Customer Property in favour of Cargo Bear within the meaning of the PPSA.
The Customer agrees to:
sign any documents or provide further documents or information required by Cargo Bear to register a financing statement or financing change statement in respect of a security interest with the Personal Property Securities Register, register any other documents required by the PPSA or correct any such document(s).
indemnify Cargo Bear for all expenses incurred in attending to the steps outlined in 11.3.2 above and releasing any interests from the Register.
The Customer must not:
register a financing change statement in respect of a security interest against Cargobear without prior written consent by Cargobear; or
after the placing of an Order, register, nor permit to be registered, a financing statement or a financing change statement in relation to the Customer Property in favour of a third party without the prior written consent of Cargobear.
Cargo Bear and Customer agree that sections 96, 117 and 125 of the PPSA do not apply to the security agreement created by these Trading Terms.
The Customer hereby waives the Customer’s right to receive notices or verification statements under sections 95, 118, 121(4),123, 130, 132(3)(d), 132(4), 135 and 157 of the PPSA.
The Customer waives the Customer’s rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
The Customer agrees to ratify unconditionally any actions taken by Cargo Bear pursuant to registration related requirements under the PPSA and as referred in the foregoing provisions of this clause.
Sale and Disposal of Customer Property
The Customer will be considered to have abandoned the Customer Property if Cargo Bear is unable to effect delivery of the Customer Property and the Customer fails to respond to Cargo Bear providing sufficient instructions and or payment of redelivery or return of the Customer Property within thirty (30) days after Cargo Bear’s first request for instructions.
Cargo Bear shall be entitled at the cost and expense of the Customer, subject to any compliance with any applicable law, to sell or dispose of:
any Perishable Goods which in the opinion of Cargo Bear appear to have perished; and
Customer Property considered abandoned pursuant to these Trading Terms.
If the Customer Property is sold pursuant to clause 12.1, Cargo Bear shall be entitled to apply the proceeds of sale to discharge any fees and charges owed by the Customer, including the costs of sale. Any balance of any proceeds remaining following such discharge will be remitted to the Customer.
Cargo Bear Platform and Intellectual Property
Cargo Bear may from time to time operate one or more Cargo Bear Platforms for the placement of Orders for Goods and Services by the Customer.
The Customer agrees to access and utilise any Cargo Bear Platforms in accordance with these Trading Terms and any additional terms stipulated in the Cargo Bear Platform.
For the avoidance of doubt, it shall be the Customer’s responsibility to maintain the secrecy of any credentials issued to the Customer for the use of the Cargo Bear Platform and Cargo Bear shall be entitled to act upon any Order made using the Customer’s credentials for which the Customer will be liable under these Trading Terms.
The Customer’s indemnity in clause 8.4 of these Trading Terms extends to any loss or damage occasioned through the unauthorised or inappropriate use of the Customer’s credentials on the Cargo Bear Platform including but not limited to any malicious cyber activity.
The Customer acknowledges and agrees that (as between Cargo Bear and the Customer) Cargo Bear owns and retains all intellectual property rights of any kind (whether or not registered or capable of registration) in the Cargo Bear Platform, any Goods advertised for sale by Cargo Bear, and in all Services, and that the sale of Goods or Services to the Customer does not include the transfer of any intellectual property rights to the Customer. No right or licence is hereby granted to the Customer to use any intellectual property right of Cargo Bear.
The Customer must not deal in the intellectual property rights of Cargo Bear, including but not limited to extracting or scraping information and or reverse engineer any aspect of the Cargo Bear Platform or assist any other person to do so.
The parties agree that damages may not be a sufficient or appropriate remedy for a breach by the Customer of the terms of this clause 13 and that Cargo Bear shall be expressly entitled to obtain an order or orders to prohibit any action by the Customer contrary to this clause 13.
Force Majeure
In this clause 14 a ‘Force Majeure Event’ means any event or circumstance that:
is not within Cargo Bear’s reasonable control or ability to prevent or overcome by the exercise of reasonable care; and
causes Cargo Bear to fail to perform any of Cargo Bear’s obligations under the Agreement with the Customer; but does not include any event or circumstance that arises as a result of any lack of funds for any reason or any other inability to pay; or negligent act or omission by Cargo Bear.
If Cargo Bear becomes unable wholly or in part by a Force Majeure Event to carry out an obligation under its Agreement with the Customer:
that obligation will be suspended for the duration of the Force Majeure Event; and
Cargo Bear will not have any liability to the Customer for any loss arising from or in connection with the non-performance of that obligation for the duration of the Force Majeure Event.
Notwithstanding the above, if a delay or failure by Cargo Bear to perform Cargo Bear’s obligations under the Agreement due to a Force Majeure exceeds ninety (90) days, either party may immediately terminate the Agreement by providing seven (7) days notice to the other party.
Privacy
The Customer warrants to have read and consents to Cargo Bear’s collection, storage, disclosure and destruction of any personal information provided by the Customer in accordance with Cargo Bear’s privacy policy available on the Cargo Bear Platform.
The Customer confirms that any personal information provided by the Customer will be accurate and complete. Furthermore, the Customer agrees to provide updated information, as and when further information is requested by Cargo Bear for the purpose of reviewing the credit history of the Customer (if applicable), updating Cargo Bear’s credit file on the Customer (if any) and/or attending to any other assessment or matter in connection with Orders by the Customer.
Dispute Resolution
The United Nations Convention on Contracts for the International Sale of Goods does not apply to the Agreement or these Trading Terms.
If any dispute arises between the parties, either party may serve on the other a notice of dispute and agrees to comply with the provisions of clause 16.3 before commencing any litigation against the other.
Within ten (10) days after service of a notice of dispute referred to in clause 16.3 the parties must confer, acting in good faith, within a period of no less than fourteen (14) days and at least once in person (if requested by Cargo Bear), to attempt to resolve the dispute and failing resolution of dispute, to explore and if possible, agree on methods of resolving the dispute. At each conference, each party must be represented by a person having authority to resolve the dispute in the course of the conference.
This clause does not prejudice the right of either party to seek urgent interlocutory relief or an injunction.
Notices
Notices to be given by the Customer to Cargo Bear must be in writing and delivered to Cargo Bear:
personally at the office address of Cargo Bear as publicly listed, in which case they will be taken to be received when delivered;
by pre-paid post to the postal address of Cargo Bear as publicly listed, in which case they will be taken to be received, except for evidence to the contrary, only when confirmed as received by Cargo Bear; or
by email to Cargo Bear at crew@cargobear.com.au unless another email address for correspondence is advised to be used by Cargo Bear from time to time, in which case they will be taken to be received at the time stated in a read receipt obtained by the Customer’s server stating that the email has been read by Cargo Bear, or if no read receipt is created, when replied to or otherwise confirmed received by Cargo Bear.
Notices required to be given by Cargo Bear to the Customer must be in writing and delivered to the Customer:
personally at the office address of the Customer as stated in the Order or any standing account of the Customer on the Cargo Bear Platform, or otherwise notified by the Customer or publicly listed on any website of the Customer, in which case they will be taken to be received when delivered;
by pre-paid post to the postal address of the Customer as stated in the Order or any standing account of the Customer on the Cargo Bear Platform, or otherwise notified by the Customer or publicly listed on any website of the Customer, in which case they will be taken to be received two (2) Business Days after postage by Cargo Bear;
by email to the Customer at the email address for correspondence advised by the Customer as stated in the Order or any standing account of the Customer on the Cargo Bear Platform, or otherwise notified by the Customer or publicly listed on any website of the Customer, in which case they will be taken to be received at the time stated in a read receipt obtained by the Customer’s server stating that the email has been read by Cargo Bear, or if no read receipt is created, two (2) Business Days after transmission, unless Cargo Bear receives notification that the email communication has been delayed or impaired.
For the purpose of this clause, the Customer and Cargo Bear hereby agree and consent to communications and notices in relation to the Agreement being sent via electronic communication.
Miscellaneous
Cargo Bear may vary any these Trading Terms from time to time by notice to the Customer and the new terms specified by Cargo Bear will apply from such notice, provided that, if the Cargo Bear issues a terms update under this clause and the Customer does not wish to accept it, the Customer may terminate its Agreement by notice in writing given to Cargo Bear within thirty (30) days of issue of the updated terms, failing which the Customer is taken to have accepted the updated terms. If the Customer terminates its Agreement with Cargo Bear, the prior terms will apply to any Orders by the Customer until the date the Agreement ends.
If anything in these Trading Terms or other parts of the Agreement is unenforceable, illegal or void then that thing is severed and the rest of the Agreement remains in full force and effect.
Any failure by Cargo Bear to exercise any right or to insist on strict performance of any obligation of the Customer under these Trading Terms or other parts of the Agreement does not operate as a waiver and a partial exercise of a right does not preclude any further or fuller exercise of that right.
These Trading Terms or any other part of the Agreement are not to be construed to the disadvantage of a party because that party was responsible for their preparation.
Cargo Bear may assign the benefit of the Agreement to any other third party who acquires Cargo Bear’s business of supplying the Goods and or Services. Upon notice by Cargo Bear to the Customer of such an assignment, all obligations of the Customer shall then be in favour of the stated assignee.
The Customer agrees that these Trading Terms and the Agreement generally shall be construed according to the laws of the State of Queensland. Proceedings by either Cargo Bear or the Customer may be instituted and/or continued in any Court in such State.
Contact Us
If you have any questions about this Privacy Policy, You can contact us: By email: crew@cargobear.com.au