1. Definitions and Guarantees.
In this agreement
a) “Client” shall mean the person who requests the Company
to arrange for the carriage of Goods or for the provision of other services
on its behalf . Where the Client is an incorporated body the directors of the
Client guarantee its performance.
b) “Company” shall mean the person whose name is printed on
the face of the accompanying quotation or other document or in the absence thereof
who is otherwise identified as the person with whom the Client entered into
a contract that incorporates these Conditions.
c) “Contractor” shall mean any person who has appointed the
Company as agent to find work on behalf of that person.
d) “Goods” shall mean any goods, which the Client has requested
to be carried or arranged to have carried.
e) “Services” shall mean any storage, pre-packing and any other
services whatsoever that the Client has requested the Company to provide.
f) “Time rate” shall be $28 per 15 minutes or part thereof
as at 20 February 2003 and adjusted annually for inflation.
2. Interpretations and Governing Law.
a) Any provision of this agreement which is capable of being interpreted
as being void, voidable, illegal or unenforceable, shall not be so interpreted
if at all possible, and shall otherwise be severed to the minimum extent necessary
with the remainder of the agreement remaining in force.
b) All the rights, immunities and limitations of liability in these conditions
of contract shall continue to have their full force and effect in all circumstances,
notwithstanding any breach (including fundamental breach) of contract.
c) Unless otherwise apparent from the context, singular words include
the plural and vice versa, words in any one gender include any other gender
and any reference to person includes both natural persons and corporations.
d) Words in italics are for guidance only and do not and shall not be
deemed to form part of this agreement.
e) This agreement shall be governed by and interpreted and enforced in
accordance with the laws applicable in the Australian Capital Territory. This
agreement shall be deemed to have been entered into in the Australian Capital
Territory.
3. Applicability of these Conditions.
a) These Conditions of Contract shall apply to any Contract for the carriage
of Goods (or the provision of other services) that was entered into after being
given a reasonable opportunity to view them on the Company’s web site,
booking on the Company’s web site or as a result of the acceptance of any
quotation accompanied by these Conditions. These Conditions shall also apply
to any further such contracts if they are entered into without any renewed notification
of applicable conditions.
b) The Client acknowledges that the Company acts as agent for every Contractor
referred to in these conditions in procuring the Client’s business and
that the Company has disclosed that fact to the Client prior to the Client entering
into any contract.
c) By entering into this contract the Client also accepts these Conditions
on behalf of all other persons on whose behalf they are acting.
d) Any term of these conditions which limits the liability of the Company,
also extends to and enures for the benefit of its employees, agents, contractors
and sub-contractors and also to their employees. For the purposes of this sub-clause,
the Company shall be deemed to be the agent or trustee of such persons and such
persons shall, to the extent necessary to give effect to this sub-clause, be
deemed to be parties to this agreement. However this provision shall not be
construed as imposing or implying any additional liability on those persons
to any person for any reason.
4. Variation of Conditions.
Unless otherwise specified in this agreement, these conditions can only be varied
by mutual consent. The consent of the Company for such a variation can only
be given in writing by a director, secretary or manager of the Company.
5. The Company and the Contractor are NOT COMMON CARRIERS and
will accept no liability as such. All goods are carried subject only
to these Conditions and the Company and the Contractor reserve the right to
refuse to carry any Goods.
6. Terms relating to the Nature and ownership of Goods.
a) The Client expressly warrants that the Client is either the owner
or the authorised agent of the owner of any Goods or property the subject matter
of this contract. If the Client is not the owner the Client warrants that the
Client has the authority to enter into this contract.
b) Goods are accepted by the Company on the condition that they comply
with the requirements of any applicable law relating to the nature, condition
and packaging of the Goods, and without limiting the generality hereof:
i) that the Client notifies the Company whenever any Dangerous Goods
Act or similar legislation (“DGA”) applies to any Goods, and guarantees
that all requirements of such laws have been met, and
ii) that the goods are fully described in writing on all relevant paperwork,
including their name and nature, and in the case of goods to which a DGA applies,
are accompanied by a consignment note that complies with the Act.
c) Where in the opinion of the Company any Goods are dangerous, corrosive,
noxious, explosive, flammable, perishable or capable of attracting vermin or
pests the Company may refuse to carry or, if carriage has commenced, take any
action reasonable to dispose, destroy or otherwise deal with the Goods at the
expense of the Client and without incurring any liability to the Client.
d) The Client agrees to notify the Company in writing, prior to pickup,
of any Goods that are inherently fragile or of a nature or value that is not
readily apparent, and of any special precautions of which the Company cannot
reasonably be expected to be aware that should be taken when carrying such Goods.
7. Ongoing 17.5% Engagement Fee.
Where within 18 months of the Client entering into a Contract governed by these
Conditions the Client engages the services of any Contractor introduced to the
Client by the Company, the CLIENT AGREES that in consideration of the Company
introducing the Contractor it will immediately pay to the Company an engagement
fee equal to 17.5% of any charges made by the Contractor for such services.
8. Charging Methods.
a) Fixed price quotations to Clients are calculated on the basis of information
supplied by the Client as to the nature and quantity of items to be moved and
as to any difficulties in gaining access at the pickup or delivery locations.
The Client warrants that all information that is reasonably necessary to assess
the work involved and to prepare a quotation for carrying out that work has
been accurately provided.
b) If the information supplied is incorrect, inadequate, inaccurate or varied
after a quotation has been given, the Company may at its discretion perform
the work strictly as per its quotation or vary its charges in accordance with
a pro-rata adjustment based on the variation in the specified quantity, volume
or weight of the goods plus any variation of estimated loading and unloading
times charged at the time rate.
c) Delays and Cancellations after arrival. Where the loading
or unloading process is delayed by over 30 minutes due to any factors outside
the Company’s control, an additional charge at the time rate may apply.
Where a job is cancelled by the Client after arrival at pickup the Client agrees
to pay a cancellation fee of half of the full job charge at the time of the
cancellation.
d) The Client agrees to pay or reimburse to the Company any costs, fees
and taxes incurred in complying with Customs, Quarantine, Import or
Export requirements. These are not included in any quoted prices
unless specifically stated in writing.
9. Payment Methods and Obligations.
a) Unless the Client has arranged for the charges to be invoiced to a
pre-authorised credit account, charges are payable prior to the scheduled
day of pickup. Payment may be made by bank cheque, Visa, Mastercard
or non-reversible EFT showing the job number as reference.
b) The Company hereby assigns its rights and the rights of any persons
on behalf of whom it is acting, to collect all charges and payments from Clients
to the Contractor. The Contractor agrees to issue invoices and to collect all
such charges and payments directly from Clients.
c) In the case of a credit account, whether pre-authorised or otherwise
established:
i) The Company shall invoice its charges on 14 day terms (unless otherwise
stated) together with any out of pocket expenses, accounting fees and industry
surcharges.
ii) The Client agrees that where the Company does not receive payment
of any amount charged to the credit account by the due date, the Client will
accept joint and several liability for any outstanding amount together with
any third party to whom the invoices have been sent and will pay those charges
within 7 days.
10. Lien on Goods until Payment is Received.
a) All goods of the Client, or carried on behalf of the Client, that
are received by the Company shall be subject to a general lien for any
monies owed by the Client or the owner of the goods to the Company or the Contractor
as a result of this agreement or any previous agreement between the Company
and the Client or the owner of the Goods.
b) In order to exercise its rights under the aforementioned lien, the
Company shall have the right to seize or retain or to defer or refuse delivery
of any goods that are the subject of this lien should circumstances arise that
make it reasonable to conclude that the Client is unwilling or unable to pay
any due charges in the required form or at the required place or time.
c) Where the charges of the Company remain unpaid for a minimum period
of 28 days, the Company may give 28 days written notice by certified or registered
mail to the last known address of the Client of intention to sell. If the amount
owing is not paid within that further period the Company may open any packages,
DISPOSE OF THE GOODS or SELL ALL OR ANY OF THE GOODS by auction or by private
treaty at its absolute discretion. Out of any monies arising the Company may
retain its charges and all charges and expenses of the detention and sale. It
shall credit the surplus, if any, to the person entitled to it. Any such sale
shall not prejudice or affect any other rights that the Company may have to
recover any outstanding charges due or payable in respect of such service or
the said detention or sale.
11. Terms relating to the movement of Goods.
a) Movement of incorrect goods. The Client shall provide
an authorised representative who will be responsible for ensuring that the correct
goods are loaded. Whether or not such a representative is provided, and WHETHER
OR NOT the Client provided the Company with a LIST of ITEMS to be moved, the
Client shall pay all reasonable additional charges whatsoever resulting from
the movement of incorrect goods or non-movement of goods that the Client intended
to have moved.
b) If there is no-one in attendance at the place for delivery
of the Goods the Company shall be entitled at its discretion to leave the Goods
at that place or to return at a later time until delivery is completed, storing
the Goods at any convenient place in the meantime, and the Client agrees to
pay any reasonable additional charges incurred thereby to the Company.
c) The method, route and time by which the carriage of Goods or provision
of services under this contract are performed shall be at the absolute discretion
of the Company.
12. Trade Practices Act.
a) Nothing in this agreement shall be construed as having the effect of in any
way excluding, restricting or modifying any warranty express or implied by virtue
of the provisions of the Trade Practices Act (1974) as amended.
14. Responsibility for Losses and Damages.
a) All quoted prices are for the performance of the work specified in
accordance with the Warranties implied by the Trade Practices Act 1974.
b) Subject to the following paragraphs of this condition the Company
warrants that it will repair the damage or pay the Customer, or
the Person nominated by the Customer the cost of repair of the Goods
or the value of the Goods lost.
c) The Company and its Contractors will not be liable for Goods
that are damaged or non-working prior to the commencement of any services
by the Company.
d) Claims are limited to a maximum of $50,000 Australian
Dollars.
e) The Company will not be liable for Mechanical or Electrical
derangement of vehicles.
f) Vehicles over 10 years old will have limited coverage
extending only to damage or loss resulting from Fire, Theft, Rollover or Collision.
g) The Company and its Contractors will not be liable for any
pre-existing damage, hail damage, mechanical or electrical damage, stone
chipping to any part of the Goods including panels and glass, loss of personal
property or effects from on or within the Goods, insect damage or bird droppings
or any damage which in aggregate with all other damage to the Goods is in excess
of the substantiated purchase price or fair market value of the Goods, whichever
is the lesser, less the value of the damaged Goods.
h) The Company and its Contractors will not be liable for any
loss or damage due to the movement of objects within the Goods, ordinary
leakage, ordinary wear and tear, delay, inherent vice, war, terrorism, nuclear
explosion, strikes, riots or civil commotion.
i) The Company and its Contractors will not be liable for damage
unless the damage is noted and signed for on the delivery receipt
copy of the Condition Report.
j) The Company and its Contractors will not be liable for damage
to or loss of a Goods unless notice of the loss or damage is given in
writing to the Company within 2 days of the date of delivery if the
Goods are damaged, or within 7 days of the anticipated date of
delivery if the Goods are lost.
k) If the Company receives a notice of loss or damage it may require
substantiation of the loss or damages sought.
l) If the Company is liable for loss of or damage to Goods for the substantiated
purchase price or fair market value of the Goods, whichever is the lesser, then
the value of the damaged Goods will be deducted from the amount otherwise
payable by the Company, and the Goods will remain the property of the owner
before lodgement of the notice of loss or damage.
m) The Company may after notice to the Customer withdraw
its liablity for Goods absolutely or for particular Goods or movement.
n) If the Company is liable for loss of or damage to Goods the Company
will only pay damages for the direct loss or damage to Goods and will not
pay any indirect or consequential loss or damage including loss of profits,
business or anticipated savings or other economic loss even if the Company knows
they are possible or otherwise foreseeable.
15. Fraud or attempted fraud shall void any liability
of the Company and its Contractors for loss or damage to the Goods and
all attendant legal or other consequences. |
