CONTRACTUAL CONDITIONS
1. In these terms and conditions:
"The Carrier" shall mean
ABN
and shall include its servants agents employees and
sub- contractors.
"Charges" means the charge or charges for the carriage of the
Goods which are specified on the Account Application.
"Consignor" shall mean the person with whom the Carrier contracts
to deliver the Goods the subject matter of this Contract.
"Consignee" shall mean the person to whom the Goods the subject
matter of this Contract are to be delivered.
"Goods" means the goods accepted from the Consignor together with
any container, packaging or packets supplied by or on behalf of the
Consignor.
2. The Carrier is not a common carrier and will accept no
liability as such. All Goods are carried by the Carrier subject
only to these conditions and the Carrier reserves the right in its
absolute discretion to refuse to carry any Goods.
3. The Consignor authorises the Carrier to sub-contract the whole
or any part of the carriage of Goods on the same terms and
conditions of this Contract.
4. The Consignor must pay the Carrier all Charges invoiced within
the period specified on the Carrier's invoice. The Carrier's
Charges shall be deemed fully earned as soon as the Goods are
loaded and dispatched and shall be payable and non-refundable in
any event. If the Consignor fails to pay the Carrier the Charges,
as and when they are due and payable, all earned Charges,
regardless of the due date including interest on all earned Charges
at the rate of 3% higher than the interest rate quoted by the
Commonwealth Bank of Australia as its Base Rate, calculated daily
from the date the earned Charges were first due and payable until
the payment for earned Charges is recovered by the Carrier,
immediately become due and payable.
5. Any list of charges or indications as to amount to be charged given
by The Carrier to The Consignor are estimates only and the charge to The
Consignor shall be determined by The Carrier prior to the performance of
the contract or carriage. The Carrier may increase its charge where The
Carrier's cost of carriage increase for any reason. All charges payable
to The Carrier are exclusive of all taxes including Goods and Services
Tax which will be to your account and are additional to freight charges.
6. The Consignor is and remains
responsible to the Carrier for all proper Charges incurred for any
reason, including but not limited to Charges for delays in loading
or unloading of Goods, being a delay occurring other than from the
default of the Carrier. Such delay period shall commence upon the
Carrier reporting for loading or unloading. Labour to load or
unload the vehicle is the responsibility and expense of the
Consignor.
7. If any of the Goods are subject to the control of the Customs
all customs duty, excise duty and costs shall be paid by the
Consignor.
8. If any person fails within 14 days of a written demand, to pay
Charges due to the Carrier under this Contract the Carrier may
detain and at its option without notice, sell all or any of the
Goods of that person which are in its possession on such terms as
it thinks fit and apply the proceeds towards the discharge of the
overdue Charges and the cost of the detention and sale, without
being liable to any person for any loss or damage caused from that
sale and the Carrier shall pay the surplus of the proceeds, if any,
and return any unsold Goods to the Consignor.
9. (a) The Carrier is authorised to deliver the Goods at the
address nominated by the Consignor ("Delivery Address") and without
prejudice to the foregoing, it is expressly agreed that the Carrier
shall be deemed to have delivered the Goods in accordance with this
Contract if the Carrier obtains from any person at the Delivery
Address, a receipt or signed delivery docket for the delivered
Goods.
(b) If the Consignee of the Goods is not in attendance at the
Delivery Address during normal trading hours or at the time
specified for delivery, or if the Carrier arrives to effect
delivery at the Delivery Address and is delayed in effecting prompt
delivery for any reason whatsoever outside the Carrier's control,
the Carrier reserves the right to make an additional charge for
every attempt at delivery or for the amount of time of any delay
until delivery is effected and the Consignor shall pay or indemnify
the Carrier in respect of all such Charges.
(c) If the Delivery Address is unattended or if delivery cannot
otherwise be effected to any person at the Delivery Address, the
Carrier may at its option deposit the Goods at that place (which
shall be deemed to be delivery in accordance with this Contract) or
store the Goods and if stored by the Carrier, the Consignor shall
pay or indemnify the Carrier for all costs and expenses incurred in
or about such storage. In the event that the Goods are stored by
the Carrier, the Carrier shall be at liberty to re-deliver them to
the Consignor from the place of storage at the Consignor's
expense.
10. The Consignor hereby authorises the Carrier to take the route
or manner of carriage to the Delivery Address that the Carrier
determines in its absolute discretion, to be the most appropriate
for the Carrier to fulfil its obligations under this Contract,
including but not limited to any deviation from the usual route or
manner of carriage of the Goods which the Carrier may in its
absolute discretion deem to be desirable or necessary in the
circumstances. The Consignor agrees to pay or indemnify the Carrier
for all charges and expenses incurred in the delivery of the Goods,
including but not limited to any road or bridge tolls or taxes.
11. For the purposes of assessing credit worthiness for the
collection of payments from the Consignor, the Consignor hereby
irrevocably authorises the Carrier, its servants and agents to make
such enquiries as it in its absolute discretion deems necessary,
including, but not limited to making enquiries by obtaining reports
(as may be allowed by law) from persons nominated by the consignor
as trade referees, the Consignor's creditors, bankers and
financiers, credit providers, mortgage and trade insurers and
credit reporting agencies ("Information Sources"). The Consignor
agrees and consents to:
(a) the Information Sources providing to the Carrier such
information as is requested by the Carrier and permitted to be
given by law for the aforesaid purposes; and
(b) the Carrier disclosing the contents of any credit report or
personal information to a credit reporting agency for the purposes
of the credit agency creating or adding to any credit information
file in relation to the Consignor.
12. The Consignor shall not tender for carriage any dangerous,
inflammable, explosive, volatile or offensive Goods or Goods which
are or may become liable to damage any property whatsoever, without
presenting a full description disclosing the nature of the Goods
and if in the opinion of the Carrier the Goods are or are liable to
become of a dangerous, inflammable, explosive, volatile or
offensive nature the Carrier may at any time destroy, dispose of,
abandon or render harmless the Goods without compensation to the
Consignor and without prejudice to the Carrier's rights to any
Charges.
13.1 The Consignor expressly warrants that:
(a) it is either the owner or the authorised agent of the owner of
the Goods;
(b) by entering into this Contract it accepts the terms and
conditions of Contract for the Consignee as well as for all other
persons on whose behalf the Consignor is acting;
(c) it has complied with any requirement of any applicable law or
regulation relating to the nature, packaging, labelling or cartage
of the Goods having regard to their nature and that the Goods are
packed in a manner adequate to withstand the ordinary risks of
carriage; and
(d) it shall pay all costs and expenses incurred by the Carrier in
complying with the provisions of any such law or with any order or
requirement or with the requirement of any harbour, dock, railway,
shipping, customs or excise.
13.2 The Consignor undertakes to indemnify and keep indemnified
the Carrier from and against all loss and damage (including all
costs and expenses whatsoever) of any nature occurring in
consequence or part consequence of the Consignor's breach of any or
all of the warranties in this Contract.
14.1 The Goods are at the risk of the Consignor and the Carrier
shall not be under any liability whatsoever for any loss or damage
to or misdelivery, delay in delivery, concealed damage,
deterioration, contamination, evaporation, non-delivery of Goods in
transit or in storage or otherwise in its care, custody or control,
or any consequential loss or damage arising therefrom howsoever
caused, notwithstanding that the loss or damage is the result of a
wilful, reckless or negligent act or omission of the Carrier.
14.2 In the event of the Contract including any handling,
installation, removal, assembly or erection of any kind whatsoever,
the Carrier is not liable for any loss, damage or injury to any
person, property or thing of any kind whatsoever, including any
consequential or indirect loss or damage however arising caused or
incurred during any part of the handling, installation, removal,
assembly or erection.
14.3 The Consignor undertakes to indemnify and keep indemnified at
all times the Carrier, its officers, servants, sub contractors and
agents against all costs, damages, Charges and expenses (including
any settlement costs) arising from any action, proceeding, claim or
demand that may be brought, made or prosecuted against it or them
by any person or persons in respect of loss of or damage to
property or death or injury caused by or arising out of or in any
way connected with the performance of this Contract.
14.4 The aggregate liability of the Carrier to the Consignor
(whether in contract, tort, under statute or in any other way and
whether due to the negligence, wilful or deliberate breach of any
other cause) under or in relation to this Contract or in relation
to any act, omission or event relating to or arising out of this
Contract in relation to or arising out of all acts, omissions or
events occurring:
(a) any 12 month period ending on the day before the anniversary
of the date of this Contract or;
(b) in any period of less than 12 months from the date of this
Contract or an anniversary of the Contract to the termination or
expiration of this Contract, shall not, in any circumstances exceed
$500.00.
14.5 To the extent permitted by law, liability under any condition
or warranty which cannot legally be excluded is limited to, in the
case of Goods, the replacement, repair or re-supply of the Goods or
the payment of the cost of replacing, repairing or re- supplying
the Goods and in the case of services supplying these services
again or paying the cost of having the services supplied again.
14.6 Despite anything else in this clause, the Carrier shall not
be liable to the Consignor for any loss or damage caused as a
result of an act of God, war, riot, insurrection, vandalism,
sabotage, strike, lockout, ban or other industrial dispute or
disturbance, any law, rule or regulation of any government or
governmental agency and executive, administrative order or act of
general or particular application which is unforeseen and beyond
the control of the Carrier and occurs without the fault or
negligence of the Carrier.
14.7 In respect to this clause the Carrier in addition to acting
for himself is acting as agent of and trustee for each of his
servants and also any other person or company with whom the Carrier
may arrange for the carriage for the Goods and servants of such
person or company so that his servants and such person or company
and his or its servants are parties to this Contract so far as the
said clause or clauses containing exclusions or limitations of
liability are concerned and if insofar as may be necessary to give
effect to the clause the Carrier shall hold the benefit of these
conditions for its servants and for any such persons or company and
his or its servants.
15. Insurance will not be arranged by the Carrier. It is the
responsibility of the Consignor to ensure that adequate insurance
cover is arranged.
16. It is hereby agreed that if any provision or part of any
provision of this Contract is unenforceable, illegal or void, then
it is severed and the rest of this Contract remains in force.
17. All the rights, immunities and limitations of liability in the
above conditions of Contract shall continue to have their full
force and effect in all circumstances and notwithstanding any
breach of the Contract or of any conditions hereof by the
Carrier.
18. The Carrier shall not be bound by an agreement purporting to
vary these conditions unless such agreement shall be in writing and
signed on behalf of the Carrier by a duly authorised executive
officer of the Carrier.
19. "GST" means GST within the meaning of the GST Act.
"GST Act" means the A New Tax System (Goods and Services Tax) Act
1999 (as amended).
19.1 The consideration payable by any party under this Contract
represents the value of any taxable supply for which payment is to
be made.
19.2 If a party makes a taxable supply in connection with this
Contract for a consideration which represents its value, then the
party liable to pay for the taxable supply must also pay, at the
same time and in the same manner as the value is otherwise payable,
the amount of any GST payable in respect of the taxable
supply.
20. The Consignor expressly agrees that it will not:
(a) hire any of the Carrier's drivers; or
(b) let, solicit, interfere with or endeavour to entice such drivers from the Carrier either whilst the drivers are engaged by the Carrier or within 6 months of the termination of their engagement by the Carrier.
The Consignor further agrees with the Carrier that in the event that this clause is breached by the Consignor that the sum of $10,000 represents fair and reasonable compensation to the Carrier for the Carrier's loss and damage sustained as a result of that breach.
21. Pallets on which Goods or Consignor's Goods are delivered, carried or stored are not the responsibility of the Carrier and the Consignor shall indemnify and keep indemnified the Carrier from any loss or damage however caused (whether by negligence of the Carrier or any person or otherwise) arising out of or in relation to lost or damaged pallets.
22. This Contract shall be governed by the law of Australia.
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