1.1 “Contract” means the terms and conditions contained herein, together with any Quotation, order, invoice or other document or amendments
expressed to be supplemental to this Contract.
1.2 “MDGS” means Marair Dangerous Goods Specialists Pty Ltd, its successors and assigns or any person acting on behalf of and with the
authority of Marair Dangerous Goods Specialists Pty Ltd.
1.3 “Sub-Contractor” means and includes:
(a) railways or airways operated by the Commonwealth or any state or any other country or by any corporation; or
(b) any other person or entity with whom MDGS may arrange for the carriage or storage of any Goods the subject of the Contract; or
(c) any person who is now or hereafter a servant, agent, employee or sub-contractor of any of the persons referred to in sub-clauses (a) and
1.4 “Customer” means the person/s, entities or any person acting on behalf of and with the authority of the Customer requesting MDGS to
provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and:
(a) if there is more than one Customer, is a reference to each Customer jointly and severally; and
(b) if the Customer is a partnership, it shall bind each partner jointly and severally; and
(c) if the Customer is a part of a Trust, shall be bound in their capacity as a trustee; and
(d) includes the Customer’s executors, administrators, successors and permitted assigns.
1.5 “Consignee” means the person to whom the Goods are to be delivered by way of the Services.
1.6 “Goods” means any cargo, together with any container, packaging, or pallet(s), to be moved from one place to another by way of the
1.7 “Services” means all services provided by MDGS to the Customer to facilitate the movement of Goods from one place to another by MDGS
as may be requested by the Customer from time to time (including, but not limited to, anything done or to be done in relation to the Goods, or
the provision of any services ancillary to the Goods such as moving, storing or leaving the Goods at any warehouse, yard, terminal, wharf or
other place or area, loading or unloading the Goods from any vehicle, vessel or other conveyance, stowing or packing the Goods, or
fumigating, transhipping, or otherwise handling the Goods, or anything else done in relation thereto, including the offering of any advice or
recommendations or consulting.
1.8 “Dangerous Goods” means Goods so classified in the Dangerous Goods Code or which are or may become noxious, dangerous, hazardous,
inflammable, explosive or damaging (including waste, contaminated or radioactive material, or capable of causing death, injury, or damage
to any person or property whatsoever, and include (for the purpose of this Contract) Goods likely to harbour or encourage vermin or other
pests and all such Goods as fall within the definition of hazardous and dangerous Goods in the legislation governing cartage by road or rail
in the States and Territories of Australia.
1.9 “Products” means all Products supplied by MDGS to the Customer at the Customer’s request from time to time.
1.10 “Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, but not limited to,
this Contract, either party’s intellectual property, operational information, know-how, trade secrets, financial and commercial affairs,
contracts, client information (including but not limited to, “Personal Information” such as: name, address, D.O.B, occupation, driver’s
license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information
(where applicable), previous credit applications, credit history) and pricing details.
1.11 “Cookies” means small files which are stored on a user’s computer. They are designed to hold a modest amount of data (including Personal
Information) specific to a particular client and website, and can be accessed either by the web server or the client’s computer. If the
Customer does not wish to allow Cookies to operate in the background when ordering from the website, then the Customer shall
have the right to enable / disable the Cookies first by selecting the option to enable / disable provided on the website, prior to
ordering Services via the website.
1.12 “Price” means the Price payable for the Services (plus any GST where applicable) as agreed between MDGS and the Customer in
accordance with clause 5 below.
1.13 “GST” means Goods and Services Tax as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).
2.1 The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the
Customer places an order for, or accepts, Services provided by MDGS.
2.2 In the event of any inconsistency between the terms and conditions of this Contract and any other prior document or schedule that the
parties have entered into, the terms of this Contract shall prevail.
2.3 Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.
2.4 These terms and conditions are to be read in conjunction with MDGS’ quotation, consignment note, agreement, airway bills, manifests, or
any other forms as provided by MDGS to the Customer. If there are any inconsistencies between these documents then the terms and
conditions contained in this document shall prevail.
2.5 The use of a Consignor’s own form (and/or terms and conditions) shall in no way derogate from these conditions, the whole of which shall,
notwithstanding anything contained in any such form (and/or terms and conditions), constitute terms of the Contract so entered into. Any
provisions in any such form (and/or terms and conditions) which is contrary to any provisions of these Terms and Conditions shall, to the
extent of such inconsistency, be inapplicable.
2.6 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9of the Electronic Transactions (Victoria) Act 2000or any other applicable provisions of that Act or any Regulations referred to in that Act.
2.7Any advice, recommendation, information, assistance or service provided by MDGS in relation to Products and Services provided is given in good faith, is based on MDGS own knowledge and experience and shall be accepted without liability on the part of MDGS and it shall be the responsibility of the Customer to confirm the accuracy and reliability of the same in light of the use to which the Customer makes or intends to make of the Products and Services.
3. Errors and Omissions
3.1 The Customer acknowledges and accepts that MDGS shall, without prejudice, accept no liability in respect of any alleged or actual error(s)
(a) resulting from an inadvertent mistake made by MDGS in the formation and/or administration of this Contract; and/or
(b) contained in/omitted from any literature (hard copy and/or electronic) supplied by MDGS in respect of the Services.
3.2 In the event such an error and/or omission occurs in accordance with clause 3.1, and is not attributable to the negligence and/or wilful
misconduct of MDGS; the Customer shall not be entitled to treat this Contract as repudiated nor render it invalid.
4. Change in Control
4.1 The Customer shall give MDGS not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer
and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address, contact phone or
fax number/s, or business practice). The Customer shall be liable for any loss incurred by MDGS as a result of the Customer’s failure to
comply with this clause.
5. Price and Payment
5.1 At MDGS’ sole discretion the Price shall be either;
(a) as indicated on invoices provided by MDGS to the Customer in respect of Products/Services provided; or
(b) MDGS’ quoted Price (subject to clauses 5.2 and 5.3) which shall be binding upon MDGS provided that the Customer shall accept in
writing MDGS’ quotation within seven (7) days.
5.2 MDGS may, by giving notice to the Customer, increase the Price of the Services to reflect any increase in the cost to MDGS beyond the
reasonable control of MDGS (including, without limitation, foreign exchange fluctuations, or increases in taxes, customs duties, insurance
premiums, or warehousing costs).
5.3 MDGS may charge freight by weight, measurement or value, and may at any time re-weigh, or re-value or re-measure or require the Goods
to be re-weighed, or re-valued or re-measured and charge proportional additional freight accordingly.
5.4 At MDGS’ sole discretion, a deposit may be required.
5.5 Time for payment for the Goods to be transported, Products and/or Services being of the essence, the Price will be payable by the Customer
on the date/s determined by MDGS, which may be:
(a) on delivery of the Goods/Products;
(b) before delivery of the Goods/Products, or
(c) for certain approved Customers shall be due:
(i) thirty (30) days following the end of the month in which a statement is sent to the Customer’s email address/postal address for
(ii) by way of instalments/progress payments in accordance with MDGS’ payment schedule, or
(d) the date specified on any invoice, consignment note, airway bills, manifests or any other forms or other form as being the date for
(e) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by MDGS.
5.6 Instructions to collect payment from the Customer on delivery (COD) in cash or otherwise are accepted by MDGS upon the condition that
MDGS in the matter of such collection will be liable for the exercise of reasonable diligence and care only.
5.7 Payment may be made by cash, cheque, bank cheque, credit card (a surcharge may apply per transaction), by direct credit, or by any other
method as agreed to between the Customer and MDGS.
5.8 MDGS may in its discretion allocate any payment received from the Customer towards any invoice that MDGS determines and may do so at
the time of receipt or at any time afterwards. On any default by the Customer MDGS may re-allocate any payments previously received and
allocated. In the absence of any payment allocation by MDGS, payment will be deemed to be allocated in such manner as preserves the
maximum value of MDGS’ Purchase Money Security Interest (as defined in the PPSA) in the Goods.
5.9 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by
MDGS nor to withhold payment of any invoice because part of that invoice is in dispute.
5.10 Unless otherwise stated the Price does not include GST. In addition to the Price the Customer must pay to MDGS an amount equal to any
GST MDGS must pay for any provision of Services by MDGS under this Contract or any other agreement. The Customer must pay GST,
without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition the
Customer must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in
5.11 Where the Customer requesting or organising MDGS to provide the Services is acting on behalf of any third party, and that third party is
intended to be responsible for the payment of the Price, then in the event that the third party does not pay for the Services when due, the
Customer acknowledges that they shall be liable for the payment of the Price as if they had contracted for the provision of the Services on
their own behalf.
6. Freight Forwarding
6.1 Except to the extent that any of the Services shall be actually performed by MDGS, MDGS shall act as a forwarding agent only. MDGS shall
be entitled, to enter into Contracts on behalf of and as agent for the Customer and without notice to the Customer, for the carriage of the
Goods by any route, means and carrier, for the storage, packing, trans-shipment, unloading, loading or handling of the Goods by any person
at any place and for any length of time, and for such other matters as in the opinion of MDGS may be necessary or desirable to the
performance of the Services. The Customer hereby appoints MDGS the agent of the Customer for the purpose of entering into any Contract,
upon such terms and conditions, as MDGS may in its absolute discretion think fit. The Customer shall be bound by the terms of any
consignment note, air waybill or other contractual document which MDGS may receive for the Goods, or for any package, unit or container in
which the Goods may be packed, whether by the Customer, MDGS, or any other person.
6.2 The Customer and any Consignee shall be jointly and severally liable for any duty, tax, impost, excise, levy, penalty, deposit, or outlay of
whatsoever nature levied by any government, or the authorities at any port or place in connection with the Goods, and for any payments,
fines, expenses, loss or damage incurred or sustained by MDGS in connection therewith and shall indemnify MDGS, its servants and agents
from all claims by third parties howsoever arising in connection with the Goods.
6.3 When the Goods are accepted or dealt with upon instructions to collect freight, duties, charges or other expenses from the Consignee or any
other person the Customer shall remain responsible for those charges and expenses if they are not paid by the Consignee or other person.
6.4 MDGS’ Price (including all charges) shall be shall be deemed fully earned on delivery of the Goods (in accordance with Clause 20) and shall
be paid in any event including, but not limited to, Goods lost, or a voyage or flights broken up or abandoned. If there is a forced interruption
or abandonment of a voyage or flight at the port or airport of shipment or elsewhere, any forwarding of the Goods or any part thereof shall be
at the risk and expense of the Customer and Consignee.
6.5 All unpaid charges shall be paid in full and without offset, counterclaim, or deduction, in the currency of the place of receipt of the Goods or
at MDGS’ sole discretion, in the currency of the place of delivery at the TT selling rate in effect on the day of payment. If the date falls on a
day which banks are closed for business, the rate ruling on the next succeeding business day shall govern.
7. MDGS is not a Common Carrier
7.1 MDGS is not a Common Carrier and will accept no liability as such. All Goods are carried or transported, and all storage and other services
are performed, by MDGS subject only to these terms and conditions and MDGS reserves the right to refuse the carriage or transport of
Goods for any person, corporation or body, and the carriage or transport of any class of Goods, at its discretion.
8. Customer-Packed Containers
8.1 If a container has not been stowed by or on behalf of MDGS, MDGS shall not be liable for loss of or damage to the Goods caused by:
(a) the manner in which the container has been stowed; or
(b) the unsuitability of the Goods for carriage or storage in containers; or
(c) the unsuitability or defective condition of the container.
9. Nomination of Sub-Contractor
9.1 The Customer hereby authorises MDGS (if it should think fit to do so) to arrange with a Sub-Contractor for the carriage of any Goods that
are 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 MDGS. In so far
as it may be necessary to ensure that such Sub-Contractor shall be so entitled MDGS shall be deemed to enter into this Contract for its own
benefit and also as agent for the Sub-Contractor.
10. MDGS’ Servants or Agents
10.1 The Customer undertakes that no claim or allegation shall be made against any servant or agent of MDGS which attempts to impose upon
any of them any liability whatsoever in connection with the Goods and, if any such claim or allegation should nevertheless be made, to
indemnify MDGS and any such servant or agent against all consequences thereof.
11. Method Of Transport and Route Deviation
11.1 If the Customer instructs MDGS to use a particular method of carriage whether by road, rail, sea or air MDGS will give priority to the method
designated but if that method cannot conveniently be adopted by MDGS the Customer shall be deemed to authorise MDGS to carry or have
the Goods carried by another method or methods.
11.2 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 MDGS be deemed reasonable or necessary in the circumstances.
12. Charges Earned and Demurrage
12.1 MDGS’ charges shall be considered earned in the case of Goods for carriage as soon as the Goods are loaded and dispatched from the
12.2 The Customer will be and shall remain responsible to MDGS for all its proper charges incurred for any reason. A charge may be made by
MDGS in respect of any delay in excess of thirty (30) minutes in loading or unloading occurring other than from the default of MDGS. Such
permissible delay period shall commence upon MDGS reporting for loading or unloading. Labour to load or unload the vehicle shall be the
responsibility and expense of the Customer or Consignee.
13. Perishable Goods
13.1 Where the Goods are perishable and the Customer has, in the opinion of MDGS, failed to collect the Goods within a reasonable period
having regard to the nature of the Goods, or is likely so to fail to collect the Goods or, in the opinion of MDGS, MDGS cannot properly or is
unlike to be able properly to deliver the Goods to the address nominated by the Customer for delivery, MDGS may sell the Goods in which
event the proceeds of sale shall be used by MDGS to discharge its costs in respect of the Services together with all costs, expenses and
charges (the Charges) incurred by MDGS in effecting such sale and the balance of the proceeds (if any) shall be paid by MDGS to the
Customer. In the event of a shortfall, the Customer shall pay to MDGS the balance of the Charges then outstanding.
14. Non-Perishable Goods
14.1 Where the Goods are non-perishable and the Customer has, in the opinion of MDGS, failed to collect the Goods within a period of twentyone (21) days from the date that written notice was sent to the address supplied by the Customer to MDGS at the time of quotation, or is
likely to fail to collect the Goods or, in the opinion of MDGS, MDGS cannot properly or is unlikely to be able to properly deliver the Goods to
the address nominated by the Customer for delivery, MDGS may, at its option, serve a notice on the Customer that it intends to sell the
Goods on the date which is twenty-one (21) days from the date on which the Customer receives the notice.
14.2 In the event the Goods are sold pursuant to Clause 14.1, the proceeds of sale shall be used by MDGS to discharge its costs in respect of the
Services together with all costs, expenses and charges (the Charges) incurred by MDGS in effecting such sale and the balance of the
proceeds (if any) shall be paid by MDGS to the Customer. In the event of a shortfall, the Customer shall pay to MDGS the balance of the
Charges then outstanding.
15. Prohibited and Dangerous Goods
15.1 MDGS or its authorised agent will not transport or store any:
(a) bullion, cash, coins, precious stones, jewellery, valuables, antiques, pictures, livestock or plants; or
(b) any materials that are prohibited under any Australian Border Force or Federal law (including, without limitation, prohibited weapons and
certain types of fertiliser).
15.2 The Customer shall provide MDGS with all necessary information relating to the Goods in addition to any data requested by MDGS
(including, but not limited to, technical specifications, data sheets, and safety information). The Customer shall be liable for and hereby
indemnifies MDGS against all loss or damage whatsoever caused by the Customer supplying incorrect information (relating to the Goods) to
15.3 Due to the dangerous nature of the Goods, the Goods may be destroyed or otherwise dealt with as determined by MDGS in its absolute
discretion, or by any other person in whose custody they may be at the relevant time, and at the expense of the Customer, and neither
MDGS nor any such other person shall incur any liability whatsoever to the Customer in relation to any action taken by them concerning the
16. Consignment Note
16.1 It is agreed that the person delivering any Goods to MDGS for carriage or forwarding is authorised to sign the consignment note for the
17. Customer’s Responsibility
17.1 The Customer expressly warrants to MDGS that:
(a) the Customer is either the owner or the authorised agent of the owner of any Goods or property that is the subject matter of this Contract
of cartage and/or storage 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;
(b) the Goods are fit for carriage, comply with any applicable legal requirements relating to the nature, condition and/or packaging of the
Goods (and that the expenses of complying with such requirements or any other lawful requirements of any authority, other body or the
company shall be at the Customer’s cost);
(c) it is solely the Customer’s responsibility to address adequately each consignment and to provide written delivery instructions to enable
(d) any packaging, labelling and/or marking by the Customer accurately describes the Goods as to content, weight and method of handling
or otherwise, complies with applicable dangerous goods codes, any other applicable laws and with any relevant Australian or
(e) at MDGS’ discretion, where differences or omissions between address and/or contact information written on the consignment and/or
other documentation or in any form of communication (including, but not limited to, email and telephone) provided by the Customer to
MDGS, MDGS shall reserve the right to choose which delivery information is followed and shall not be held liable for any associated
costs in relocation of the Goods if this address is the incorrect one.
17.2 The Customer shall indemnify MDGS against any loss (including any fine, levy, charge or other monetary imposition to which MDGS may
become liable incidental to the carriage) damage, death or injury, including loss or damage to MDGS’ containers and/or equipment arising
(a) the Customer’s unreasonable detention of any vehicle container or other equipment of MDGS;
(b) any breach of the Customer’s warranties under clause 17.1, including the failure to comply with clause 17.1(d).
17.3 MDGS may at any time request the Customer by notice in writing to remove the Goods within a specified time and if such notice is not
complied with, may dispose of (including by way of sale), remove or destroy at the expense of the Customer any or all of the Goods which in
the opinion of MDGS have become or are likely to become deleterious, deteriorated, objectionable, damaged or contaminated. If Goods is
sold under this clause then such sale shall be made under the provisions contained in clause23 below.
18.1 MDGS is authorised to deliver the Goods at the address given to MDGS by the Customer for that purpose and it is expressly agreed that
MDGS shall be taken to have delivered the Goods in accordance with this Contract if at that address MDGS obtains from any person a
receipt or a signed delivery docket for the Goods.
18.2 MDGS may deliver the Goods by separate instalments (in accordance with the agreed delivery schedule). Each separate instalment shall be
invoiced and paid for in accordance with the provisions in this Contract.
18.3 It is the Customer’s sole responsibility to provide unobstructed access to the nominated address to enable effective delivery, including
ensuring that trees are trimmed or cut back along driveways, and/or (for self-load or self-unload) ensuring that foot or vehicular traffic is not
impeded and that public safety is considered. If delivery cannot be effected by MDGS (whether due to obstructed access to the nominated
address or otherwise) then MDGS at its sole discretion may:
(a) deposit the Goods in the nearest and safest position to the address, and such action will be deemed to constitute valid delivery; or
(b) obtain the use of Hiab or other vehicle/equipment, and charge the Customer any costs incurred by MDGS in so doing; or
(c) refuse to effect delivery and instead store the Goods, in which case the Customer shall be liable for, and shall reimburse MDGS for all
costs and expenses incurred in connection with such storage.
Marair Dangerous Goods Specialists Pty Ltd – Terms & Conditions of Cartage
#26633 © Copyright – EC Credit Control 1999 – 2018
18.4 It is the responsibility of the Customer to ensure that access to the collection or delivery site is suitable to accept the weight of laden trucks.
The Customer agrees to indemnify MDGS against all costs incurred by MDGS in recovering such vehicles in the event they become bogged
or otherwise immovable.
18.5 The Customer shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that
may be applicable, including ensuring that the nominated address complies with any occupational health and safety laws and any other
relevant safety standards or legislation.
18.6 In the event that MDGS stores the Goods under clause 18.3(c) then MDGS will re-deliver the Goods to the nominated address at a time
mutually agreed between the parties. The Customer shall be liable for any costs incurred by MDGS in both the initial delivery and the redelivery.
18.7 If the Customer requests MDGS upon delivery:
(a) to make delivery of the Goods to a subsequent address, then MDGS may, at their sole discretion, charge the Customer the additional
costs associated with doing so;
(b) to assist in unloading the Goods (either by hand or through the use of any machinery, including forklifts) then MDGS shall only do so at
their sole discretion, and:
(i) MDGS may charge the Customer the additional costs associated with doing so;
(ii) the Customer acknowledges that they accept full liability for all property loss or damage, or injury to any person that may result from
the actions of MDGS in providing such assistance; and
(iii) notwithstanding that MDGS may refuse such assistance without any liability to the Customer whatsoever should they believe that the
risk in providing such assistance is unacceptable.
18.8 Delivery of the Goods to a third party nominated by the Customer is deemed to be delivery for the purposes of this Contract.
18.9 It is the Customer’s sole responsibility to address adequately each consignment and to provide written delivery instructions to enable
18.10 The failure of MDGS to deliver shall not entitle either party to treat this Contract as repudiated.
18.11 Any time specified by MDGS for the delivery of Goods is an estimate only and MDGS will not be liable for any loss or damage incurred by
the Customer as a result of delivery being late. However both parties agree that they shall make every endeavour to enable the Goods to be
delivered at the time and place as was arranged between both parties. In the event that MDGS is unable to deliver the Goods as agreed
solely due to any action or inaction of the Customer then MDGS shall be entitled to charge the Customer any additional costs incurred by
MDGS as a direct consequence of any resultant delay or rescheduling of the delivery.
19. Loss or Damage
19.1 Subject to any statutory provisions imposing liability in respect of the loss of or damage to the Goods (including but not limited to chilled,
frozen, refrigerated or perishable Goods):
(a) MDGS shall not be under any liability for any damage to, loss, deterioration, misdelivery, delay in delivery or non-delivery of the Goods
(whether the Goods are or have been in the possession of MDGS or not) nor for any instructions, advice, information or service given or
provided to any person, whether in respect of the Goods or any other thing or matter, nor for any consequential or indirect loss, loss of
market or consequences of delay; and
(b) the Customer will indemnify MDGS against all claims of any kind whatsoever, howsoever caused or arising brought by any person in
connection with any matter or thing done, said or omitted by MDGS in connection with the Goods;
(c) handling, loading, storage or unloading of the Goods by the Customer or Owner or any person acting on their behalf;
(d) inherent vice of the Goods;
(e) riots, civil commotions, strikes, lockouts, stoppage or restraint of labour from whatsoever cause;
(f) fire, flood, storm, explosion or theft; or
(g) any cause which MDGS could not avoid and the consequences whereof it could not prevent by the exercise of reasonable diligence.
19.2 Subject to Clause 26, MDGS shall not be liable for loss or damage howsoever caused (whether or not indirect or consequential) to property
other than the Goods themselves and shall not be liable for any pure economic loss or loss of profit, delay or deviation howsoever arising.
20.1 The Customer acknowledges that:
(a) the Goods are carried and stored at the Customer’s sole risk and not at the risk of MDGS; and
(b) MDGS is under no obligation to arrange insurance of the Goods and it remains the Customer’s responsibility to ensure that the Goods
are insured adequately or at all; and
(c) under no circumstances will MDGS be under any liability with respect to the arranging of any such insurance and no claim will be made
against MDGS for failure to arrange or ensure that the Goods are insured adequately or at all.
21.1 Notwithstanding clauses 19 and 20 in the event that the Customer believes that they have any claim against MDGS then they must lodge
any notice of claim for consideration and determination by MDGS within seven (7) days of the date of delivery, or for non delivery within
seven (7) days of the anticipated date of delivery or the removal or destruction of the Goods.
21.2 The failure to notify a claim within the time limits under clause 21.1 is evidence of satisfactory performance by MDGS of its obligations.
22. Default and Consequences of Default
22.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and
one half percent (2.5%) per calendar month (and at MDGS’ sole discretion such interest shall compound monthly at such a rate) after as well
as before any judgment.
22.2 If the Customer owes MDGS any money the Customer shall indemnify MDGS from and against all costs and disbursements incurred by
MDGS in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, MDGS’
contract default fees, and bank dishonour fees).
22.3 Further to any other rights or remedies MDGS may have under this Contract, if the Customer has made payment to MDGS, and the
transaction is subsequently reversed, the Customer shall be liable for the amount of the reversed transaction, in addition to any further costs
incurred by MDGS under this clause 22 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the
Customer’s obligations under this Contract.
22.4 Without prejudice to MDGS’ other remedies at law MDGS 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 all amounts owing to MDGS shall, whether or not due
for payment, become immediately payable in the event that:
(a) any money payable to MDGS becomes overdue, or in MDGS’ opinion the Customer will be unable to meet its payments as they fall due;
(b) the Customer has exceeded any applicable credit limit provided by MDGS;
(c) 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
(d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the
23. Carrier’s Lien
23.1 MDGS shall have a right to take a particular and general lien on any Goods the property of the Customer or a third party owner which are in
the possession or control of MDGS (and any documents relating to those Goods) for all sums owed at any time by the Customer or a third
party owner to MDGS (whether those sums are due from the Customer on those Goods or documents, or on any other Goods or
documents), and MDGS shall have the right to sell such Goods or cargo by public auction or private treaty after giving notice to the
Customer. MDGS 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.
23.2 Notwithstanding clause 23.1 nothing shall prejudice MDGS’ rights to use any of MDGS’ other rights and remedies contained in this Contract
to recover any outstanding charges or fees payable in respect of the Goods that were not recovered out the sale of the Goods in accordance
with clause 23.1 and no exception shall be taken upon the grounds that the Price realised is less than the full market value of the Goods.
24. Personal Property Securities Act 2009 (“PPSA”)
24.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the
24.2 Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that these terms and conditions constitute
a security agreement for the purposes of the PPSA, and creates a security interest in:
(a) all Goods being transported, carried or handled by MDGS, over which MDGS invokes a lien; and
(b) all Services that will be supplied in the future by MDGS to the Customer; and
(c) all the Customer’s present and after acquired property being a charge, including anything in respect of which the Customer has at any
time a sufficient right, interest or power to grant a security interest in for the purposes of securing repayment of all monetary obligations
of the Customer to MDGS for Services – that have previously been provided and that will be provided in the future by MDGS to the
24.3 The Customer undertakes to:
(a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in
all respects) which MDGS may reasonably require to:
(i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities
(ii) register any other document required to be registered by the PPSA; or
(iii) correct a defect in a statement referred to in clause 24.3(a)(i) or 24.3(a)(ii);
(b) indemnify, and upon demand reimburse, MDGS for all expenses incurred in registering a financing statement or financing change
statement on the Personal Property Securities Register established by the PPSA or releasing any registration made thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of MDGS;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods in favour of a third
party without the prior written consent of MDGS.
24.4 MDGS and the Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms
24.5 The Customer hereby waives its rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
24.6 The Customer waives its rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
24.7 Unless otherwise agreed to in writing by MDGS, the Customer waives its right to receive a verification statement in accordance with section
157 of the PPSA.
24.8 The Customer shall unconditionally ratify any actions taken by MDGS under clauses 24.3 to 24.5.
24.9 Subject to any express provisions to the contrary (including those contained in this clause 24), nothing in these terms and conditions is
intended to have the effect of contracting out of any of the provisions of the PPSA.
25. Security and Charge
25.1 In consideration of MDGS agreeing to supply Services, the Customer charges all of its rights, title and interest (whether joint or several) in
any land, realty or other assets capable of being charged, own
Marair Dangerous Goods Specialists Pty Ltd – Terms & Conditions of Cartage
#26633 © Copyright – EC Credit Control 1999 – 2018
25.2 The Customer indemnifies MDGS from and against all MDGS’ costs and disbursements including legal costs on a solicitor and own client
basis incurred in exercising MDGS’ rights under this clause.
25.3 The Customer irrevocably appoints MDGS and each director of MDGS as the Customer’s true and lawful attorney/s to perform all necessary
acts to give effect to the provisions of this clause 25 including, but not limited to, signing any document on the Customer’s behalf.
26. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
26.1 The Customer must inspect the Products on delivery and must within seven (7) days of delivery notify MDGS in writing of any evident
defect/damage, shortage in quantity, or failure to comply with the description or quote. The Customer must notify any other alleged defect in
the Products as soon as reasonably possible after any such defect becomes evident. Upon such notification the Customer must allow MDGS
to inspect the Products.
26.2 Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and
warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (NonExcluded Guarantees).
26.3 MDGS acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
26.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, MDGS makes no warranties or
other representations under these terms and conditions including but not limited to the quality or suitability of the Products. MDGS’ liability in
respect of these warranties is limited to the fullest extent permitted by law.
26.5 If the Customer is a consumer within the meaning of the CCA, MDGS’ liability is limited to the extent permitted by section 64A of Schedule 2.
26.6 If MDGS is required to rectify, re-supply, or pay the cost of re-supplying the Products/Services under this clause or the CCA, but is unable to
do so, then MDGS may refund any money the Customer has paid for the Products/Services but only to the extent that such refund shall take
into account the value of Services and Products which have been provided to the Customer which were not defective.
26.7 If the Customer is not a consumer within the meaning of the CCA, MDGS’ liability for any defect or damage in the Products is:
(a) limited to the value of any express warranty or warranty card provided to the Customer by MDGS at MDGS’ sole discretion;
(b) limited to any warranty to which MDGS is entitled, if MDGS did not manufacture the Products;
(c) otherwise negated absolutely.
26.8 Subject to this clause 26, returns will only be accepted provided that:
(a) the Customer has complied with the provisions of clause 26.1; and
(b) MDGS has agreed that the Products are defective; and
(c) the Products are returned within a reasonable time at the Customer’s cost (if that cost is not significant); and
(d) the Products are returned in as close a condition to that in which they were delivered as is possible.
26.9 Notwithstanding clauses 26.1 to 26.8 but subject to the CCA, MDGS shall not be liable for any defect or damage which may be caused or
partly caused by or arise as a result of:
(a) the Customer failing to properly maintain or store any Products;
(b) the Customer using the Products for any purpose other than that for which they were designed;
(c) the Customer continuing the use of any Products after any defect became apparent or should have become apparent to a reasonably
prudent operator or user;
(d) the Customer failing to follow any instructions or guidelines provided by MDGS;
(e) fair wear and tear, any accident, or act of God.
26.10 Notwithstanding anything contained in this clause if MDGS is required by a law to accept a return then MDGS will only accept a return on the
conditions imposed by that law.
27.1 All emails, documents, images or other recorded information held or used by MDGS is Personal Information, as defined and referred to in
clause 27.3, and therefore considered Confidential Information. MDGS acknowledges its obligation in relation to the handling, use,
disclosure and processing of Personal Information pursuant to the Privacy Act 1988 (“the Act”) including the Part IIIC of the Act being
Privacy Amendment (Notifiable Data Breaches) Act 2017 (NDB) and any statutory requirements, where relevant in a European Economic
Area (“EEA”), under the EU Data Privacy Laws (including the General Data Protection Regulation “GDPR”) (collectively, “EU Data Privacy
Laws”). MDGS acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Customers Personal
Information, held by MDGS that may result in serious harm to the Customer, MDGS will notify the Customer in accordance with the Act
and/or the GDPR. Any release of such Personal Information must be in accordance with the Act and the GDPR (where relevant) and must
be approved by the Customer by written consent, unless subject to an operation of law.
27.2 Notwithstanding clause 27.1, privacy limitations will extend to MDGS in respect of Cookies where transactions for purchases/orders transpire
directly from MDGS’ website. MDGS agrees to display reference to such Cookies and/or similar tracking technologies, such as pixels and
web beacons (if applicable), such technology allows the collection of Personal Information such as the Customer’s:
(a) IP address, browser, email Customer type and other similar details;
(b) tracking website usage and traffic; and
(c) reports are available to MDGS when MDGS sends an email to the Customer, so MDGS may collect and review that information
(“collectively Personal Information”)
In order to enable / disable the collection of Personal Information by way of Cookies, the Customer shall have the right to enable / disable
the Cookies first by selecting the option to enable / disable, provided on the website prior to proceeding with a purchase/order via MDGS’
27.3 The Customer agrees for MDGS to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g.
name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details
or next of kin and other contact information (where applicable), previous credit applications, credit history) about the Customer in relation to
credit provided by MDGS.
27.4 The Customer agrees that MDGS may exchange information about the Customer with those credit providers and with related body
corporates for the following purposes:
(a) to assess an application by the Customer; and/or
(b) to notify other credit providers of a default by the Customer; and/or
(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/or
(d) to assess the creditworthiness of the Customer including the Customer’s repayment history in the preceding two (2) years.
27.5 The Customer consents to MDGS being given a consumer credit report to collect overdue payment on commercial credit.
27.6 The Customer agrees that personal credit information provided may be used and retained by MDGS for the following purposes (and for other
agreed purposes or required by):
(a) the provision of Services; and/or
(b) analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to the provision of Services; and/or
(c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Customer; and/or
(d) enabling the collection of amounts outstanding in relation to the Services.
27.7 MDGS may give information about the Customer to a CRB for the following purposes:
(a) to obtain a consumer credit report;
(b) allow the CRB to create or maintain a credit information file about the Customer including credit history.
27.8 The information given to the CRB may include:
(a) Personal Information as outlined in 27.3 above;
(b) name of the credit provider and that MDGS is a current credit provider to the Customer;
(c) whether the credit provider is a licensee;
(d) type of consumer credit;
(e) details concerning the Customer’s application for credit or commercial credit (e.g. date of commencement/termination of the credit
account and the amount requested);
(f) advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty
(60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that
the Customer no longer has any overdue accounts and MDGS has been paid or otherwise discharged and all details surrounding that
discharge(e.g. dates of payments);
(g) information that, in the opinion of MDGS, the Customer has committed a serious credit infringement;
(h) advice that the amount of the Customer’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
27.9 The Customer shall have the right to request (by e-mail) from MDGS:
(a) a copy of the Personal Information about the Customer retained by MDGS and the right to request that MDGS correct any incorrect
Personal Information; and
(b) that MDGS does not disclose any Personal Information about the Customer for the purpose of direct marketing.
27.10 MDGS will destroy Personal Information upon the Customer’s request (by e-mail) or if it is no longer required unless it is required in order to
fulfil the obligations of this Contract or is required to be maintained and/or stored in accordance with the law.
27.11 The Customer can make a privacy complaint by contacting MDGS via e-mail. MDGS will respond to that complaint within seven (7) days of
receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the
event that the Customer is not satisfied with the resolution provided, the Customer can make a complaint to the Information Commissioner at
28. Confidential Information/Conflict of Interest
28.1 The Customer assumes liability for all loss or damage suffered by MDGS as a result of breach of confidentiality undertaken by itself, or its
employees or agents.
28.2 The obligations of confidentiality shall survive the finalisation or discontinuance of any agreement between the Customer and MDGS.
28.3 Neither party will use the other party’s confidential/personal Information without prior written consent (including manuals and other materials
and aids), except strictly for the purposes contemplated by this Contract, and a party may only disclose the other party’s
(a) if required by law;
(b) to exercise their rights under this Contract;
(c) if necessary to perform their obligations under this Contract;
(d) if the other party has provided their written consent to the disclosure;
(e) if the confidential/personal Information is already in the public domain (otherwise than as a result of disclosure in breach of this
28.4 MDGS is obliged to remain vigilant to, and to advise the Customer of, any conflict of interest that may potentially impact or harm the
Customer. To avoid conflict of interest and commercial sensitivities, it is agreed by MDGS that any and all information regarding the
Customer (and their business, commercial agenda and employees) shall remain confidential at all times and shall only be disclosed in the
event of legal order or obligation.
28.5 The Customer agrees to indemnify MDGS on a continuing, full indemnity basis from and against any liability, loss, expense and demand for
or arising from any false, misleading, non-descriptive representation or statement made by the Customer in respect of the Goods to any third
party (including but not limited to, the Australian Border Force where Goods are subject to customs inspection). This indemnity survives
termination of this Contract.
29.1 Without prejudice to any other remedies MDGS may have, if at any time the Customer is in breach of any obligation (including those relating
to payment) MDGS may suspend or terminate the provision of Services to the Customer and any of its other obligations under the terms and conditions. MDGS will not be liable to the Customer for any loss or damage the Customer suffers because MDGS exercised its rights under
29.2 MDGS may cancel any Contract to which these terms and conditions apply, or cancel delivery of Goods at any time before the Goods are
delivered, by giving written notice to the Customer. On giving such notice MDGS shall repay to the Customer any sums paid in respect of the
Price. MDGS shall not be liable for any loss or damage whatever arising from such cancellation.
29.3 In the event that the Customer cancels the delivery of Goods, or the provision of any Services, then the Customer shall be liable for any loss
incurred by MDGS (including, but not limited to, any loss of profits) up to the time of cancellation, or as a direct result of the cancellation.
30. Indemnities and Limitation of Liability
30.1 The defences and exclusions of liability in these conditions general including clause 19 apply in any action (whether based on contract, tort,
bailment or any other cause of action howsoever arising) against MDGS even if it is resulted from an act or omission of MDGS done wilfully
or recklessly with knowledge that damage would or would probably result.
30.2 Subject to clause 26, MDGS shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense
(including loss of profit) suffered by the Customer arising out of a breach by MDGS of these terms and conditions (alternatively MDGS’
liability shall be limited to damages which under no circumstances shall exceed the Price).
30.3 Nothing whatsoever done or omitted to be done or other conduct by MDGS in breach of these terms and conditions or otherwise howsoever
lawfully or unlawfully shall under any circumstances constitute either a breach going to the root of this Contract, or a deviation or departure
therefrom or a repudiation thereof such as to have effect of disentitling MDGS from obtaining the benefit of and enforcing all rights, defences,
exceptions, immunities and limitations of liability and other protections herein which shall continue to have full force and effect in any event
30.4 Subject to clause 26, but without prejudice to any other provision hereof, this Contract and any other contract MDGS makes under its
authority and any contract made by any person whom MDGS has delegated such authority, shall be made by the Customer or be allowed or
admitted further subject to all terms, conditions and requirements which may be imposed on or with respect to the Goods or the carriage
thereof (including storage by any port, harbour, dock, railways, shipping, airways or other lawful authority or person into whose hands it may
become necessary to entrust the Goods or to whose control the Goods become subject in transit). All further or additional charges which
may become payable on the Goods or their carriage as a result shall be payable in the manner as provided by clause 5.
31. Force Majeure
31.1 Where MDGS is unable, wholly or in part, by reason of any fact, circumstance, matter or thing beyond the reasonable control of MDGS,
including but not limited to any act of God, war, terrorism, strike, civil commotion, lock-out, general or partial stoppage, restraint of labour,
industrial action, fire, flood, storm, etc. (“Force Majeure”) to carry out any obligation under this Contract and MDGS gives the Customer
prompt notice of such Force Majeure with reasonably full particulars thereof and, insofar as is known, the probable extent to which it will be
unable to perform or be delayed in performing that obligation and uses all reasonable diligence to negate or remove that Force Majeure as
quickly as possible, that obligation is suspended, so far as it is affected by Force Majeure, during the continuance thereof. The requirement
that any Force Majeure shall be negated or removed with all reasonable diligence shall not require the settlement of strikes, lockouts or other
labour disputes, or claims or demands by any government on terms contrary to the wishes of MDGS.
32. Service of Notices
32.1 Any written notice given under this Contract shall be deemed to have been given and received:
(a) by handing the notice to the other party, in person;
(b) by leaving it at the address of the other party as stated in this Contract;
(c) by sending it by registered post to the address of the other party as stated in this Contract;
(d) if sent by facsimile transmission to the fax number of the other party as stated in this Contract (if any), on receipt of confirmation of the
(e) if sent by email to the other party’s last known email address.
32.2 Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of
post, the notice would have been delivered.
33.1 If the Customer at any time upon or subsequent to entering in to the Contract is acting in the capacity of trustee of any trust (“Trust”) then
whether or not MDGS may have notice of the Trust, the Customer covenants with MDGS as follows:
(a) the Contract extends to all rights of indemnity which the Customer now or subsequently may have against the Trust and the trust fund;
(b) the Customer has full and complete power and authority under the Trust to enter into the Contract and the provisions of the Trust do not
purport to exclude or take away the right of indemnity of the Customer against the Trust or the trust fund. The Customer will not release
the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity.
(c) the Customer will not without consent in writing of MDGS (MDGS will not unreasonably withhold consent), cause, permit, or suffer to
happen any of the following events;
(i) the removal, replacement or retirement of the Customer as trustee of the Trust;
(ii) any alteration to or variation of the terms of the Trust;
(iii) any advancement or distribution of capital of the Trust; or
(iv) any resettlement of the trust property.
34.1 The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it
affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or
unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
34.2 These terms and conditions and any Contract to which they apply shall be governed by the laws of Victoria, the state in which MDGS has its
principal place of business, and are subject to the jurisdiction of the courts in that state.
34.3 MDGS may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Customer’s consent.
34.4 The Customer cannot licence or assign without the written approval of MDGS.
34.5 The Customer agrees that MDGS may amend their general terms and conditions for subsequent future Contracts with the Customer by
disclosing such to the Customer in writing. These changes shall be deemed to take effect from the date on which the Customer accepts such
changes, or otherwise at such time as the Customer makes a further request for MDGS to provide Goods to the Customer.
34.6 Both parties warrant that they have the power to enter into this Contract and have obtained all necessary authorisations to allow them to do
so, they are not insolvent and that this Contract creates binding and valid legal obligations on them.
ADDITIONAL TERMS AND CONDITIONS APPLICABLE FOR THE SUPPLY OF PRODUCTS
35. Price and Payment
35.1 MDGS reserves the right to change the Price if a variation to MDGS’ quotation is requested. Any variation for the plan of scheduled
Services and/or specifications of the Products which are beyond MDGS’ control and will be charged for on the basis of MDGS’ quotation,
and will be detailed in writing, and shown as variations on MDGS’ invoice. The Customer shall be required to respond to any variation
submitted by MDGS within ten (10) working days. Failure to do so will entitle MDGS to add the cost of the variation to the Price. Payment
for all variations must be made in full at the time of their completion.
36. Delivery of Products
36.1 Delivery (“Delivery”) of the Products is taken to occur at the time that:
(a) the Customer or the Customer’s nominated carrier takes possession of the Products at MDGS’ address; or
(b) MDGS (or MDGS’ nominated carrier) delivers the Products to the Customer’s nominated address even if the Customer is not present at
36.2 At MDGS’ sole discretion, the cost of delivery is either included in the Price or is in addition to the Price.
36.3 MDGS may deliver the Products in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the
provisions in these terms and conditions.
36.4 Any time specified by MDGS for delivery of the Products is an estimate only. The Customer must take delivery by receipt or collection of the
Products whenever they are tendered for delivery. MDGS will not be liable for any loss or damage incurred by the Customer as a result of
delivery being late. In the event that the Customer is unable to take delivery of the Products as arranged then MDGS shall be entitled to
charge a reasonable fee for redelivery and/or storage.
37. Risk to Products
37.1 Risk of damage to or loss of the Products passes to the Customer on Delivery and the Customer must insure the Products on or before
37.2 If any of the Products are damaged or destroyed following delivery but prior to ownership passing to the Customer, MDGS is entitled to
receive all insurance proceeds payable for the Products. The production of these terms and conditions by MDGS is sufficient evidence of
MDGS’ rights to receive the insurance proceeds without the need for any person dealing with MDGS to make further enquiries.
37.3 If the Customer requests MDGS to leave Products outside MDGS’ premises for collection or to deliver the Products to an unattended
location, then such Products shall be left at the Customer’s sole risk.
38. Title of Products
38.1 MDGS and the Customer agree that ownership of the Products shall not pass until:
38.2 the Customer has paid MDGS all amounts owing to MDGS; and
38.3 the Customer has met all of its other obligations to MDGS.
38.4 Receipt by MDGS of any form of payment other than cash shall not be deemed to be payment until that form of payment has been
honoured, cleared or recognised.
38.5 It is further agreed that, until ownership of the Products passes to the Customer in accordance with clause 38.1:
(a) the Customer is only a bailee of the Products and must return the Products to MDGS on request.
(b) the Customer holds the benefit of the Customer’s insurance of the Products on trust for MDGS and must pay to MDGS the proceeds of
any insurance in the event of the Products being lost, damaged or destroyed.
(c) the Customer must not sell, dispose, or otherwise part with possession of the Products other than in the ordinary course of business and
for market value. If the Customer sells, disposes or parts with possession of the Products then the Customer must hold the proceeds of
any such act on trust for MDGS and must pay or deliver the proceeds to MDGS on demand.
(d) the Customer should not convert or process the Products or intermix them with other Products but if the Customer does so then the
Customer holds the resulting product on trust for the benefit of MDGS and must sell, dispose of or return the resulting product to MDGS
as it so directs.
(e) the Customer irrevocably authorises MDGS to enter any premises where MDGS believes the Products are kept and recover possession
of the Products.
(f) MDGS may recover possession of any Products in transit whether or not delivery has occurred.
(g) the Customer shall not charge or grant an encumbrance over the Products nor grant nor otherwise give away any interest in the
Products while they remain the property of MDGS.
(h) MDGS may commence proceedings to recover the Price of the Products sold notwithstanding that ownership of the Products has not
passed to the Customer.
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