1. DEFINITIONS AND INTERPRETATIONS

1.1 Definitions

In these Terms and Conditions:

"Act" means the Port Authorities Act 1999 and all regulations made under that Act from time to time.

"Application for Berth" means a valid ship visit entry into Fremantle Ports' Voyager-PMIS system by the appointed Agent.

"Contract" means the contract between Fremantle Ports and the Customer that is formed as soon as the Vessel enters the Port following lodgement of an Application for Berth.

"Customer" the Vessel's Owner and the Vessel's master.

"Customer's Agent" means the Vessel agent (if any) specified in the Application for Berth or, if no agent is specified in the Application for Berth, the Vessel agent (if any) who lodged the Application for Berth.

"Customer's Associates" means employees of the Customer, the Customer's Agent, other agents of the Customer, the Customer's contractors and any agents or contractors engaged by any of the Customer's Agents to carry out work or provide services in the Port in connection with the Vessel or its cargo or crew.

"Facilities" means the land, buildings, berths, wharfs, jetties, lay down areas and any associated plant and equipment and other infrastructure of any kind that is owned, vested in, managed, leased or otherwise controlled by Fremantle Ports to which the Customer or any of its Associates are given access to or use of by Fremantle Ports in connection with the Vessel's visit to the Port.

"Fees and Charges" means the rates and charges set out in the Schedule of Rates and Charges and any other fees, rates or charges that are imposed by Fremantle Ports from time to time on the Customer or any of the Customer's Associates for access to or use of any Facilities, Services or Hire Equipment in connection with the Vessel's visit to the Port.

"Force Majeure Event" means any event or situation that arises due to something beyond the reasonable control of Fremantle Ports.

"Fremantle Ports" means the Fremantle Port Authority being a body corporate established under the Act.

"Hire Equipment" means any plant, equipment, chattel, labour or service hired, licensed or leased and made available for loading or unloading of the Vessel, storage, cargo movement, repairs or any other purpose requested or required by Fremantle Ports, the Customer or any of the Customer's Associates in connection with the Vessel and use of the Port by the Customer or any of the Customer's Associates.

"Port" means the Port of Fremantle.

"Schedule of Rates and Charges" means the schedule of Fremantle Ports' rates and charges from time to time which is posted on the Fremantle Ports website at www.fremantleports.com.au/Shipping/Business/RatesCharges.asp .

"Services" means any services that are provided by or arranged by Fremantle Ports.

"Terms" means the terms and conditions set out in this document as varied from time to time by Fremantle Ports.

"Vessel" means the vessel named in the Application for Berth.

"Vessel's Owner" means the owner of the Vessel and includes any charterer of the Vessel.

1.2 Interpretation

In these Terms:

(a) words importing the singular will include the plural and vice versa and any word or expression defined in the singular has the corresponding meaning if used in the plural and vice versa;

(b) a reference to any act or statute or regulation will include a reference to any amendment, re-enactment or extension thereof or any statutory or regulatory provision that may be substituted from time to time.

(c) references to any deed, document, instrument or other writing will be deemed to include references to the deed, instrument or other writing as varied or supplemented from time to time; and

(d) where any party to the Contract is comprised of more than one person or entity then those people or entities will be bound jointly and each of them will be bound severally by the terms of the Contract.

2. APPLICATION OF THESE TERMS

2.1 These Terms form part of the Contract that arises out of the submission of an Application for Berth to Fremantle Ports.

2.2 A contract will automatically bind the Customer with respect to the Vessel's visit to the Port as soon as the Vessel enters the Port and the contract will comprise the terms and details set out in the Customer's Application for Berth, these Terms and the Schedule of Rates and Charges.

2.3 Any variation to the details set out in the Application for Berth shall be deemed to operate as a variation to the Contract.

2.4 These Terms cannot be varied unless the variation is agreed in writing and has been signed by authorised representatives of both the Customer and Fremantle Ports.

3. PORT AUTHORITIES ACT 1999

3.1 The Contract shall operate in augmentation of Fremantle Ports' rights, powers, defences, immunities or limitations of liability under the Act. Nothing in or arising out of these Terms or the Contract:

(a) in any way diminishes Fremantle Ports' rights, powers, defences, immunities, indemnities or limitations of liability under the Act; or

(b) in any way fetters any discretions that Fremantle Ports has under the Act; or

(c) in any way diminishes or otherwise precludes Fremantle Ports' from accessing, relying upon or using any of its rights, powers, defences, immunities, indemnities or limitations of liability under the Act in relation to any matter concerning the Port, the Customer or the Vessel or any matter arising out of the Contract.

3.2 If there is any inconsistency between anything in these Terms or the Customers Contract and anything in the Act, then the Act will prevail to the extent of the inconsistency.

4. USE OF AND ACCESS TO FACILITIES, SERVICES AND HIRE EQUIPMENT

4.1 Allocation of Facilities, Services and Hire Equipment by Fremantle Ports

Fremantle Ports agrees to allocate the Vessel a berth in the Port and give the Customer access to and use of the Facilities, Services and Hire Equipment.

4.2 No interest in Facilities

Nothing in these Terms will create any tenancy, estate or proprietary interest of any kind in or over the Facilities or any Hire Equipment.

4.3 Availability of requested Facilities, Services and Hire Equipment

Allocation of Facilities, Services or Hire Equipment requested by the Customer or the Customer's Associates will always be subject to availability and suitability for the use intended by the Customer or the Customer's Associates. Fremantle Ports will determine availability and suitability in its discretion.

4.4 Additional Services, Facilities or Hire Equipment

In addition to the use of any Facilities, Services or Hire Equipment requested by the Customer or any of the Customer's Associates, other Services, Facilities and Hire Equipment shall be utilised (and paid for as part of the Fees and Charges) in circumstances where Fremantle Ports considers the use of additional or alternative Services or Facilities is necessary to ensure, safety, security, Port operational efficiency, general expediency, compliance with the Act or compliance with any other laws or industry standards.

4.5 Withdrawal, suspension, reallocation and termination of access and use

If Fremantle Ports considers it necessary to do so for any reason then Fremantle Ports may at any time withdraw, suspend, reallocate, terminate or otherwise vary or modify any usage or access rights that are granted to the Customer. If Fremantle Ports exercises any of its rights under this clause then nothing will relieve the Customer or the Customer's Agent from liability to pay any Fees and Charges already accrued or incurred and nothing will entitle the Customer to any compensation for any loss, damage, demurrage, delay or inconvenience suffered.

5. INTEREST

5.1 Interest on outstanding Fees and Charges

The Customer shall pay Fremantle Ports interest on all Fees and Charges that are not paid to Fremantle Ports by the date that they are due for payment. Interest on all outstanding amounts shall accrue daily at the rate per annum prescribed from time to time by Regulation 119 of the Port Authorities Regulations 2001 (WA) pursuant to section 136 of the Act. Interest may be capitalised by Fremantle Ports on the last day of each month and Interest shall be payable by the Customer to Fremantle Ports on demand.

6. OTHER OBLIGATIONS

6.1 Maintenance and repair

The Customer shall ensure that any Facilities and Hire Equipment used by the Customer or any of the Customer's Associates are kept and maintained in good condition (having regard to their age and general condition) and the Customer shall ensure that any Facilities and Hire Equipment used are left in a good, clean and operational condition after use.

6.2 Fremantle Ports may rectify

If any Facilities or Hire Equipment are not left in the condition required under clause 6.1, Fremantle Ports may carry out any work necessary to put the Facilities and Hire Equipment into the condition required under clause 6.1 and the costs of the work shall be paid by the Customer on demand.

6.3 Port Security

The Customer shall ensure that it and the Customer's Associates comply with Fremantle Ports' security procedures and requirements relating to cargo, Vessels, Facilities, Hire Equipment and access to and from the Port when such procedures and requirements are communicated to them. For the purposes of this clause 6.3, where Fremantle Ports places the relevant procedures and requirements on its website, it shall be deemed to have communicated those procedures and requirements to the Customer and Customer's Associates.

6.4 Professional standards

The Customer shall ensure that all work carried by it or any of the Customer's Associates in or around the Port in connection with the Vessel's visit:

(a) is carried out by personnel who are fit for work and have the appropriate training, experience and qualifications to do the work; and

(b) is carried out with a high degree of skill, competence and professionalism at all times.

6.5 No damage

The Customer shall ensure that neither it nor any of the Customer's Associates causes any damage to the Facilities, Hire Equipment or anything else in the Port.

6.6 No interference with other users

The Customer shall ensure that neither it nor any of the Customer's Associates obstructs or causes any interference to Fremantle Ports or anyone else lawfully using the Port.

6.7 Comply with all Acts and Regulations

The Customer shall ensure that it and the Customer's Associates comply with all aspects of the Act and all other laws relating to the Vessel or the use of or access to the Port, the Services, the Hire Equipment or the Facilities by the Customer or any of the Customer's Associates.

6.8 Not to cause spills or pollute

The Customer shall ensure that neither it nor any of the Customer's Associates causes any spills, pollution or contamination of any kind in the Port.

6.9 Comply with directions etc.

The Customer shall ensure that it and the Customer's Associates:

(a) comply with all directions given by Fremantle Ports in connection with the Vessel's visit to the Port;

(b) comply with all directions given by anyone working with the Australian Quarantine Services, the Australian Customs Services or any relevant regulatory authority in connection with the Vessel's visit to the Port; and

(c) comply with all occupational health, safety and environmental requirements and associated policies and procedures of Fremantle Ports that are advised to the Customer or any of the Customer's Associates from time to time.

6.10 Induction

The Customer shall ensure that it and the Customer's Associates undertake any Port induction briefings or courses as and when required by Fremantle Ports in relation to anything connected with the Vessel's visit to the Port.

6.11 Notification of accidents, damage or injury

As soon as the Customer or any of the Customer's Associates become aware of any accident, incident, damage to the Facilities or Hire Equipment, injury to any person or any circumstances presenting a risk of damage or injury during the Vessel's visit to the Port:

(a) the Customer shall ensure that Fremantle Ports is informed of the damage, injury or circumstance; and

(b) if the Customer or the Vessel's Master is requested to do so by Fremantle Ports, the Customer shall ensure that it or the Vessel's Master, provides a detailed written report to Fremantle Ports in respect of the accident or other event giving rise to the damage, injury or any other consequence. Any report shall be provided to Fremantle Ports within 48 hours of a request being made.

For the purpose of this clause: "accident" means any event where damage of any kind is caused to any Vessel, person or property; and "incident" means any event occurring, which gives rise to a hazardous or potentially hazardous situation.

6.12 Fremantle Ports access

The Customer shall ensure that Fremantle Ports is given prompt access to the Facilities, the Vessel and any information that is reasonably required by Fremantle Ports in order for Fremantle Ports to check and monitor the Customer's compliance with its obligations under these Terms.

7. LIMITATION OF LIABILITY

Except to the extent that any rights or warranties cannot be excluded or limited as a matter of law, the liability of Fremantle Ports to the Customer for anything arising out of the Contract shall be strictly limited to either of the following remedies as elected by Fremantle Ports:

(a) the re-supply of equivalent Services, Facilities or Hire Equipment; or

(b) the payment of the costs necessary to have the Services, Facilities or Hire Equipment supplied again.

8. TERMINATION

8.1 Fremantle Ports may terminate

Without prejudice to any other rights or remedies Fremantle Ports may have under these Terms or at law or in equity, Fremantle Ports may terminate the Contract with immediate effect if the Customer is in breach of its obligations at any time.

8.2 No release

On termination of the Contract:

(a) nothing will release or discharge the Customer from liability to Fremantle Ports in relation to anything occurring prior the date of termination; and

(b) nothing will release or discharge the Customer's Agent or Customer from liability for any Fees and Charges imposed by Fremantle Ports in relation to anything occurring prior the date of termination.

9. GOODS AND SERVICES TAX

9.1 GST provisions

For the purpose of this clause unless the context otherwise requires:

(a) "GST Legislation" means A New Tax System (Goods and Services Tax) Act 1999 and any related tax imposition act (whether imposing tax as a duty or customs excise or otherwise) and includes any legislation which is enacted to validate recapture or recoup the tax imposed by any of such acts; and

(b) where any other term is used in this clause, which is defined in the GST legislation, it will have the meaning which it bears in the GST Legislation.

9.2 Amounts in Schedule of Rates and Charges are GST inclusive

Every item in the Schedule of Rates and Charges payable under these Terms and Conditions shall be expressed as being inclusive of GST.

9.3 Tax invoices

Fremantle Ports will provide the Customer or the Customer's Agent with tax invoices and/or adjustment notes with respect to the Fees and Charges (but will not be obliged or required to create tax invoices for amounts in excess of amounts received from the Customer). The tax invoices and /or adjustment notes will show the Fees and Charges exclusive of GST and the relevant GST amount payable on those Fees and Charges.

10. FORCE MAJEURE

Despite anything to the contrary contained elsewhere in these Terms, Fremantle Ports will not be in breach of any obligation it may have in circumstances where Fremantle Ports' ability to reasonably comply was interfered with, obstructed, delayed or prevented by a Force Majeure Event.

11. MISCELLANEOUS

11.1 No assignment

The rights and entitlements under the Contract are not capable of being assigned or transferred by the Customer.

11.2 Severance

If any term or part contained in these Terms or elsewhere in the Contract is declared or becomes unenforceable, invalid or illegal for any reason then that term or part will be severed and the other terms and parts will remain in full force and effect.

11.3 Governing law and jurisdiction

The Contract is governed by and will be construed in accordance with the laws of Western Australia and the Customer irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of Western Australia.

11.4 Website

Fremantle Ports undertakes to place these Terms on its web site, so that the Customer can have easy access to them.

11.5 Variation

Fremantle Ports undertakes to:

(a) consult with Shipping Australia Limited prior to varying these Terms; and

(b) notify Customers and the Customer's Agents of any variation by placing the varied Terms on its website immediately following any determination by Fremantle Ports to vary these Terms