- DEFINITIONS. In these terms and conditions (Terms) the following definitions and interpretations apply:
Goods means the property or supplies to be transported and/or stored and in respect of which the Consignor has engaged the Carrier for the provision of the transport and/or storage Services.
Receiver means the person to whom the Consignor directs the Carrier to deliver the Goods.
Carrier means the Carrier carrying on business in its own name and under any business name and its officers, employees, agents or sub-contractors and their employees.
Consignor shall include any person/company engaging the Carrier for provision of services
Services shall mean and include the whole of the operations and services undertaken by the Carrier in respect of the Goods including but not limited to cartage, transport and/or storage of the goods.
Carriage means the carriage of the Goods by any mode of transport for and on behalf of the Consignor;
Charges means Carrier quoted or otherwise agreed charges for the Services plus any additional charges payable pursuant to these Terms and any tax, including GST, levied directly upon any supply or transaction made pursuant to these Terms;
GST has the meaning given to that term in section 195-1 of A New Tax System (Goods and Services Tax) Act 1999(Cth);
PPSA means the Personal Property Securities Act 2009 (Cth);
Storage means any necessary storage, for and on behalf of the Consignor, of the Consignor’s Goods at the Carriers premises in circumstances where the Goods must await Carriage, or have been carried and are awaiting pick up;
Transport Document means Carrier’s consignment note, storage document or any other document of the Carriers by which the Consignor authorises or requests the Carrier to provide Carriage or Storage of the Consignor’s Goods;
- CONTRACT BASIS
2.1 The Carrier is NOT A COMMON CARRIER and accepts no liability as such for its services. The carrier reserves the right to refuse the carriage or transport and storage of Goods for any person, agent or company whatsoever, and any class of goods at its sole discretion.
2.2 The Carrier relies on the details supplied by the Consignor in relation to the quantity, value, type, quality, condition and description of the Goods, and in relation to any address from which the Goods are to be collected or to which the Goods are to be transported. The Carrier cannot verify and does not review the accuracy of the details provided by the Consignor and any signature of the Carrier is intended only as acknowledgement of Goods received and shall in no way be taken as confirmation or verification of the details as provided by the Consignor.
2.3 The Carrier may arrange with an independent Carrier or sub-Contractor for the carriage of goods, who shall thereupon be entitled to the full benefits of these terms and conditions to the same extent as the carrier.
2.4 If the Consignor instructs the Carrier to use a particular method of handling, storage or carriage, the Carrier will give priority to the method designated, but if that method can not conveniently be adopted, the Consignor authorises the Carrier to adopt any other method or methods of handling, carriage or storage of the Goods as the Carrier in its sole discretion may deem fit.
3.1 To the maximum extent permitted by law, the only warranties or guarantees that are binding on the Carrier in respect of the Services to be provided to the Consignor are those imposed and required to be binding by Australian Consumer Law or any other applicable law. All other warranties or guarantees (express or implied) are expressly excluded. If the Carrier fails to comply with an applicable guarantee under the Australian Consumer Law, the Carriers liability (at its option) is limited to either: the supplying of the Services again; or the payment of the cost of having the Carrier’s Services supplied again.
3.2 Unless expressly agreed in writing, the Carrier shall not be liable for any loss of or damage to or deterioration of goods (including chilled, frozen or perishable goods), loss of use or consequential loss, concealed damage caused by inherent vice of nature of goods or damage to the Goods, or any loss, death or personal injury, either in transit or in storage whether caused by negligence, wrongful act or default of the Carrier in connection with:
(a) Any mis-delivery, delayed delivery or non-delivery of the Goods, or any part or portion of the Goods;
(b) Where the Carrier has been requested by the Consignor to package goods/freight, the Carrier shall not be liable for any damage or loss whatsoever, no matter how the damage or loss arises;
(c) Loading or unloading any Goods into bulk tanks, vessels, drums or containers;
(d) The Goods being held in bulk storage tanks;
(e) Residual material being left in any container, vessel or road tanker including where Carrier has discharged or loaded the Goods; or
(f) The use or operation of any crane, gantry or machinery which occurs during the handling or moving of any Goods, containers or rail wagons loaded by the Consignor or any other party or arising from any failure breakdown or defects of or in the Machinery.
3.3 The Carrier will not be liable for, and the Consignor releases the Carrier from and indemnifies the Carrier against any liability or expense arising from any personal injury (including death) or illness, or delay to any person or damage to any property howsoever caused or contributed to by the Goods or in relation to the Services. This release and indemnity extends to include injury, illness, delay or damage to any person or property during any part of the Services and to include any consequential loss even if it arises because of a breach of contract or negligence or wilful act or omission of the Carrier.
3.4 These Terms, in particular those limiting or excluding Carrier’s liability, shall continue to apply and to be of full force and effect in all circumstances notwithstanding any breach or alleged breach by Carrier of these Terms or any negligence or breach of contract by the Carrier.
- CONSIGNOR’S WARRANTIES
The Consignor warrants and acknowledges that:
4.1 The Consignor is the owner of the Goods or has the owner’s authority or permission to send and arrange for storage of the Goods on behalf of the Consignor under these Terms;
4.2 The Consignor has complied with the requirements of all applicable laws and regulations relating to the nature, packaging, labelling, description, storage or cartage of the goods and that the goods are packed in a manner adequate to withstand the ordinary risk of storage, voyage and/or carriage and herby indemnifies the carrier of any liability whatsoever as a result of or arising out of the Consignors failure to comply with each of these warranties.
4.3 All expenses and charges incurred by Carrier in complying with the provisions of any Laws with respect to the Goods and in complying with the requirements of any harbour, dock, railway, shipping, customs, warehouse or any other authority or company and any additional Charges deemed necessary by Carrier must be paid by the Consignor;
4.4 It will at all times comply with all laws relating to heavy vehicles including those relating to mass, dimension, load restraint, fatigue and speeding and that it will not directly or indirectly make or impose any demand or requirement upon Carrier that would cause Carrier to be in breach of its obligations under such laws;
4.5 The Goods are fully and accurately described in the Transport Documents, including, name, nature, weight and measurement and the Consignor shall be responsible for any resulting losses or costs whatsoever (including consequential losses or costs) arising from any error or discrepancy in such information.
4.6 The Consignor indemnifies and shall keep Carrier indemnified against all costs, losses, penalties, damage, fines, expenses and liabilities suffered or incurred by Carrier by reason of any breach by the Consignor of any of, or all of, the foregoing warranties or acknowledgements.
4.7 That the Goods are not explosive, flammable or dangerous including dangerous within the meaning of the Dangerous Goods Act;
4.8 That it has provided adequate and accurate instructions in relation to the method and location for collection of the Goods by the Carrier or delivery of the Goods to the Carrier and in relation to the method and location for the Storage of the Goods and/or the delivery of the Goods to the Receiver.
5.1 The Carrier accepts no liability or responsibility for the insurance of the Goods which remains the Consignor’s and/or Receiver’s sole responsibility. The Carrier is not liable for any loss or damage, including any consequential losses, for the failure of the Consignor and/or Receiver to adequately insure the Goods.
5.2 It shall be the responsibility of the Consignor to arrange such insurance as it sees fit to cover all or any of the above items of this agreement/conditions and any other risks. The Carrier shall be under no responsibility whatsoever to see that such insurance has been affected.
- CONDITIONS TO SERVICE
The Goods are accepted by the Carrier for the purposes of providing the Services subject to the following conditions:
6.1 Dangerous Goods
(a) If in the Carrier’s opinion the Goods are liable to cause damage to any person or property or to the environment, or to become dangerous, inflammable, explosive, volatile, offensive or damaging in nature, the Carrier may at any time destroy, dispose of, abandon or render the Goods harmless without any compensation to the Consignor or Receiver and without prejudice to the Carrier’s right to any Charges. The Client shall not tender for carriage of any explosive, inflammable or otherwise dangerous goods, without presenting a full description disclosing the nature of those goods. Without doing so, the Client shall be liable for all loss and damage suffered by the Carrier and any other person or company as a consequence of the carriage or transport (or attempted carriage) of any such goods.
(b) The Consignor indemnifies the Carrier against any expenses, loss or damage incurred or sustained as a result of the Goods being or becoming dangerous including as a result of any spillage, seepage, combustion or contamination or as a result of any disposal, destruction, abandonment, repair or rendering harmless of the Goods by the Carrier.
(c) The Carrier expressly excludes the following items and will not provide Services in respect of these items unless it otherwise expressly agrees in writing: firearms; live ammunition; live animals or reptiles; illegal substances; or any item that could be described as a weapon.
6.2 The Carrier shall not be responsible for the loss or dishonest appropriation by any of its employees of any payments made directly to those employees on behalf of the Consignor and intended for the Carrier. The Consignor shall indemnify the Carrier for any amount so lost or dishonestly appropriated.
6.3 The Consignor must collect the Goods within 14 days of a written request by the Carrier. If the Goods are not removed within 14 days, the Carrier may sell or otherwise dispose of the Goods as it sees fit.
- LIEN AND SECURITY INTEREST
7.1 The Carrier has a general lien on the Goods for all amounts owing to the carrier whether for Transport and/or Storage of these Goods or any other Goods or any other Service. The lien shall secure all amounts owing to the Carrier including expenses incurred by the Carrier for exercising its right of lien.
7.2 The Consignor irrevocably waives its right to receive any notice under the PPSA (including notice of a Verification Statement or any other notice under the PPSA) unless a requirement for notice cannot be excluded under the PPSA;
7.3 The Consignor acknowledges and agrees that if the lien is not satisfied by payment of all monies owing by the Consignor to Carrier on any account and/or the Goods are not collected, Carrier may at its option and without notice, in the case of perishable goods immediately, and in any other case upon the expiration of 2 months either:
(a) Remove the Goods or such part thereof and store them in such place and manner as Carrier thinks proper at the Consignor’s risk and expense; or
(b) Open any package and sell the Goods or part thereof upon such terms as Carrier thinks fit and apply the proceeds of sale towards discharge of the Carrier’s lien and the costs associated with the sale without being liable to any person for any loss or damage caused. Any sale of the Goods by Carrier shall not prejudice the Carrier’s right to recover from the person or persons liable to pay the same any charges due or payable in respect of any Carriage, Storage or other service or sale. This right of sale is additional to any other rights conferred upon Carrier by statue or general law.
8.1 The Carrier is not responsible for the return or de-hire of pallets. Pallet control is the responsibility of the Consignor and the receiver. The Carrier will consider all pallets to be supplied on a one way transit basis. The Carrier shall not be liable in any way in respect of any pallets, including but not limited to liability for lost, stolen or damaged pallets, pallets taken in to custody, pallet hire fees or pallet exchange. The Consignor must not transfer any pallets to any account the Carrier may have with a pallet hirer, unless agreed to in writing.
8.2 These Terms apply to any container(s), pallet(s) or other packaging containing or delivered with the Goods to the Carrier. The Consignor is responsible for the conformity of such container(s) packaging and pallet(s) with any requirements of the receiver and for any expenses incurred by the Carrier arising from any failure to conform.
8.3 The Carrier is entitled to open any document, wrapping, package or other container in which the Goods are placed or carried, to inspect the Goods to determine their nature or condition or for the purpose of determining their ownership or destination where any transport document or other identifying document or mark is lost, damaged, destroyed or defaced.
8.4 The Carrier may utilize their own (owned outright/on hire) pallets for the purpose of consolidating and safely securing Goods. These must be returned to the Carrier on delivery of Goods to the Receiver. Failure to do so may result in additional charges.
- CARRIER’S CHARGES
9.1 Where the Consignor stipulates that the Charges for the Services will be paid by the receiver or other third party, the Consignor agrees that if or insofar as any charges are not paid by the receiver or other third party the Consignor will on demand pay the same to the Carrier.
9.2 The Consignor is and remains responsible to Carrier for all its proper Charges incurred by Carrier in relation to the Services for any reason. A demurrage charge may be made by the carrier in respect of any delay in excess of 30minutes in loading or unloading occurring other than from the default of the Carrier. Labour to load or unload Goods shall be the responsibility and expense of the Consignor or receiver
9.3 The Carriers charges shall be deemed fully earned as soon as the Goods are picked up for transport or accepted for storage and shall be payable and not refundable in any event. The Consignor hereby authorises any deviation from the usual route of carriage or place of storage of the goods which may in the absolute discretion of the carrier be deemed desirable or necessary in the circumstances. The carrier will deliver goods at intermediate points only by special arrangement, subject to suitable facilities being available. The carrier is presumed to have delivered the goods in accordance with his contract once those goods have been delivered at the address given by the Consignor and a signature on the delivery docket has been obtained from any person at that address. If the receiver refuses, fails or neglects to take delivery of goods or if the designated place of delivery should be unattended or if the delivery cannot otherwise be affected by the carrier, the carrier may at its option deposit the goods at that place (which shall be conclusively presumed to be due delivery) or store the goods. If the goods are stored by the carrier, the consigner shall pay or indemnify the carrier of all cost and expenses incurred in or about such storage. The carrier may redeliver the goods to the consigner from the place of storage at the consigners expense. Should the receiver not be in attendance during normal trading hours or at specific time of delivery, the carrier reserves the right to make further charges for every call made until delivery is made. If delivery cannot be made within 21 days of a notice to the Consignor, the Carrier may in its discretion return the Goods to the Consignor and recover all charges and expenses which may be due owing or payable to Carrier under these Terms or sell the Goods and deduct from the sale proceeds all charges and expenses owing to Carrier under these Terms.
9.4 The Carrier may charge freight or storage (or both) by weight, measurement or value at its absolute discretion, and may at any time re-weigh, re-measure, re-value or require the goods to be re-weighed, re-measured or re-valued and charge proportional additional freight and storage costs accordingly.
9.5 The Carrier reserves the right to re-quote the price and/or rates fixed under any Contract, should there be any increases in the cost to the Carrier of carrying on its operations, howsoever arising, which take effect at any time prior to completion of the work involved under the Contract.
9.6 Where the Carrier has agreed with the Consignor to procure the Services on an arrangement for deferred payment by the way of a credit account, the Carriers accounts terms of payment are 14 days from end of month. Late fees will accrue on any amounts overdue at a rate of 2% per month, until the date of actual payment. Where any Service is undertaken by the Carrier at the request of a person from whom the Carrier is authorised by the Consignor to accept such requests, the Consignor shall be liable for the costs and charges of such Services, and the delivery by the Carrier of an invoice for the same shall be conclusive proof of such liability. Without an established account, either: the Consignor must pay the Carrier in full for the Charges, prior to transportation of goods; OR the Consignor must supply full contact details for the Receiver, who must then pay the Carrier in full for the Charges, prior to transportation of goods.
The Carrier shall not be bound by any agreement purporting to vary these conditions unless such agreement is in writing and signed on behalf of the Carrier by an officer of the contract. The Carrier reserves the right from time to time to amend these Terms and Conditions without giving prior notice to the customer. All amendments shall have force and effect and it shall be the absolute responsibility of the Consignor to ensure that it has an up-to-date copy of the Terms and Conditions, available at www.mcardlefreight.com.au, or by request.
It is hereby agreed that if any clause or provision of these Terms and Conditions or any part thereof is illegal or unenforceable, that part shall be severed from the remainder of the Terms and Conditions and such unenforceability or severance shall not affect any other part of that provision or any other provision hereof.
- NO WAIVER
Any failure by the Carrier to insist on strict compliance with any of these Terms and Conditions or any delay by the Carrier in exercising its rights under these Terms and Conditions will not constitute a variation or waiver of any of these Terms and Conditions or any of the Carrier’s rights hereunder and shall not preclude the Carrier from subsequently enforcing any of those rights or insisting on strict compliance.