Terms and conditions

Conditions of Carriage

CONDITIONS OF CARRIAGE

1. GENERAL

1.1 These Terms, together with any Credit Application completed and

submitted to the Carrier by the Customer and any Additional Security

reasonably required by the Carrier:

(a) apply to every order for Services placed by the Customer with the

Carrier; and

(b) can only be varied by written agreement between the Customer and

the Carrier.

1.2 No terms or conditions of the Customer are binding on the Carrier unless

expressly agreed to in writing and signed by the Carrier.

1.3 The Customer cannot accept these Terms in part, nor can it amend them

without the prior express written consent of the Carrier.

1.4 In its absolute discretion and without incurring any liability to the

Customer, the Carrier may, in addition to any other right it may have

under these Terms or at law generally:

(a) suspend the Customer’s Credit Account;

(b) cease providing credit to the Customer;

(d) suspend the supply of Services to the Customer; or

(e) do anything else contained in this document.

1.5 If an Event of Default occurs, all monies then outstanding to the Carrier

become immediately due and payable and the Carrier may, without

prejudice to its rights under these Terms, any Additional Security or at law

generally, call up all moneys owing to it by the Customer, retain all money

paid on account and apply it to moneys owing and cease further supply of

Services.

1.6 Any credit limit approved by the Carrier is for the benefit of the Carrier

and the obligations of the Customer remain unchanged if any credit limit

is exceeded or not specified at any time.

2. CARRIER NOT COMMON CARRIER

2.1 The Carrier:

(a) is not a common carrier;

(b) does not accept liability as a common carrier; and

person, at its absolute discretion.

3. DANGEROUS GOODS

3.1 The Carrier does not carry Dangerous Goods.

3.2 The Customer must not allow, give or arrange for the Carrier to carry

Dangerous Goods.

3.3 If the Carrier carries Dangerous Goods for the Customer, the Customer

agrees to indemnify the Carrier from any loss, damage, expense, claim,

charge, liability and cost relating to or arising from the carriage of the

Dangerous Goods.

4. RIGHT OF INSPECTION

4.1 The Customer acknowledges and agrees that the Carrier or any

government authority may open and inspect the Goods for the purposes

of verifying the condition or nature of the Goods.

5. CUSTOMER WARRANTIES

5.1 The Customer warrants to the Carrier:

(a) the Customer has provided a full and accurate description of the

Goods to the Carrier prior to requesting transport of the Goods;

(b) the Goods have been correctly labelled and the labels security fixed;

(d) all applicable laws and regulations have been complied with.

5.2 The Customer agrees to indemnify the Carrier from any expense, loss,

liability, damage or cost the Carrier suffers or incurs due to or arising out

of a breach of the warranties in clause 5.1.

6. LOADING AND UNLOADING

6.1 Subject to clause 6.2, the Customer and its employees, contractors,

suppliers and agents will be responsible for loading and unloading the

Goods, unless the Carrier agrees otherwise.

6.2 All Goods delivered to the Brisbane Depot will be loaded by the Carrier.

7. AUTHORITY

7.1 The Customer authorises the Carrier:

(a) to liaise with and accept orders for Services on behalf of the

Customer from the Customer’s suppliers;

(b) accept Goods for transport to the Customer from the Customer’s

suppliers;

directs.

8. CREDIT TERMS

8.1 The Carrier may only supply the Services on credit once a Customer has

been approved by the Carrier and:

(a) a Credit Application has been properly completed and signed by the

Customer or its authorised person; or

(b) the Customer or its authorised person have otherwise agreed to

these Terms.

8.2 The granting of credit is entirely at the Carrier’s discretion and the Carrier

may withdraw or vary credit at any time.

8.3 No representation has been made by the Carrier or any person on its

behalf that this Credit Application will be accepted.

8.4 If credit is not extended to the Customer by the Carrier, the Customer

must make payments in cleared funds to the Carrier for all Services

ordered from the Carrier on or before the Goods are transported by the

Carrier.

9. ORDERS

9.1 Each order placed by a Customer or its agent or supplier shall constitute

an offer by the Customer to purchase from the Carrier Services, on these

Terms.

9.2 If the Carrier elects to accept a Customer’s order, an agreement shall

have been entered into between the Customer and the Carrier in relation

to the Services ordered, pursuant to these Terms.

9.3 The Carrier reserves the right, at any time up to transport of the Goods,

to:

(a) amend the price of the ordered Services;

(b) decide not to supply the ordered Services.

9.4 If the Customer fails to provide the Carrier with any information,

documents or instructions requested by the Carrier in relation to an

order, the Carrier may reject the order or suspend work relating to the

order.

9.5 The Customer may only revoke an order by giving written notice of such

revocation to the Carrier before the Carrier accepts an order.

9.6 If the Customer fails to give notice to the Carrier pursuant to clause 9.5,

the Customer will be bound by the order and any additional costs or

expenses incurred by the Carrier in relation to that order.

9.7 The Carrier is not liable to the Customer for any loss or damage suffered

as a result of or relating to the:

(a) non-supply of ordered Services;

(b) amendment of the price of ordered Services;

(d) an attempt to revoke an order after it has been accepted by the

Carrier.

9.8 The Carrier may refuse or cease to supply Services (or both) to the

Customer at any time without cause.

9.9 The Carrier will endeavour to comply with the Customer’s reasonable

order specifications and meet the delivery dates and instructions

requested by the Customer. However if there is any delay of delivery, misdelivery

or failure to meet delivery instructions for any reason the

Customer will not be entitled to claim compensation from the Carrier or

to cancel or rescind the order.

9.10 The Carrier is not liable for any loss resulting directly or indirectly from

the Carrier’s failure to supply Services where:

(a) the Carrier has insufficient capacity to fulfil the order; or

(b) the Carrier has determined, in its absolute discretion, that credit or

Services should no longer be extended to the Customer.

9.11 If an event occurs that is beyond the reasonable control of the Carrier and

results in the Carrier being unable to observe or perform an obligation

under these Terms on time (including acts of God, natural disaster, war,

malicious damage, strikes, traffic conditions, industrial dispute,

interruption in the Carrier’s supply chain, fire, shortages of raw materials

or transport or import restrictions) the Carrier will have no obligation to

deliver Services and while the circumstances continue the Carrier may

cancel or rescind all or any part of an order or keep the order on hold.

10. PRICE AND PAYMENT

10.1 The Customer acknowledges and agrees the Carrier may charge by

weight, measurement or value of the Goods in accordance with its

schedule of fees.

10.2 Payment is due on or before each Payment Date, without deduction or

setoff.

10.3 If the Customer fails to make a payment when due then the Customer is

liable for:

(a) any interest charged by the Carrier on any overdue amount at the

Interest Rate; and

(b) and must pay on demand to the Carrier all costs and expenses

(including legal costs on an indemnity basis) incurred by the Carrier in

the recovery or attempted recovery of any overdue amounts.

CONDITIONS OF CARRIAGE

10.4 If the Customer makes a payment by credit card, the Carrier may pass on

to the Customer any applicable merchant fee.

10.5 The Customer must not make any deduction, set-off or counterclaim from

a payment due to the Carrier.

10.6 Amounts received by the Carrier may be applied by the Carrier in its

absolute discretion, including toward payment of any interest, costs or

expenses owing to the Carrier before being applied against any amounts

invoiced for Services which remain unpaid from time to time.

10.7 All applicable taxes (including GST), duties and surcharges (including

credit card surcharges) relating to the sale of Services must be paid by the

Customer at the time of payment of the invoice.

11. GST

11.1 It is agreed that all amounts agreed to be paid under or in connection

with these Terms are exclusive of GST unless otherwise specified.

11.2 If GST is levied or imposed on or in respect of any supply under or in

connection with these Terms, then the amount payable for that supply is

increased by the applicable rate of GST.

11.3 Payment of the GST must be made at the same time and in the same

manner as the payment is required under or in connection with these

Terms.

11.4 In relation to each supply under or in connection with these Terms, the

Carrier must provide the recipient a tax invoice in the form required by

the GST Law.

12. RISK

12.1 The risk in the Goods remains with Customer at all times.

13. LIEN

13.1 To secure the Customer’s obligations under this Agreement, the

Customer grants the Carrier a lien over the Goods for the amounts owing

to the Carrier by the Customer.

13.2 If the Customer fails to pay the Carrier an amount when due the Carrier

may:

(a) retain possession of the Goods until the amounts owing to the

Carrier are paid in full;

(b) sell the Goods by public auction or private sale.

13.3 The Customer is responsible for the Carrier’s reasonable costs in

exercising its powers under clause 13.2, including but not limited to the

costs of storage, transport and selling the Goods,

13.4 The proceeds from any sale of the Goods by the Carrier are to be applied

as follows:

(a) firstly, to the Carrier for the amount owing to the Carrier; and

(b) secondly, towards the Customer if any surplus is remaining.

14. PPSA

14.1 The Customer grants a security interest to the Carrier in the form of a

charge of all of the Customers present and after acquired property and

their proceeds.

14.2 The Customer acknowledges and agrees that this is a security agreement

for the purposes of PPSA and that the Carrier may register one or more

security interest in the Goods on the register, at the expense of the

Customer.

14.3 Where the PPSA applies to action taken by the Carrier in relation to the

Goods, the Customer waives its right to receive any notices required

under sections 95, 118, 120, 121(4), 123, 129, 130, 132(4) and/or 135 of

the PPSA.

14.4 The Customer waives its rights under section 157 of the PPSA to receive

notice of a verification statement.

15. CANCELLATION OF ORDERS

15.1 Once orders are placed by the Customer or its representative and

accepted by the Carrier they may only be cancelled with the written

approval of the Carrier.

15.2 The Carrier is under no obligation to approve a cancellation of an order.

15.3 If the Carrier accepts the cancellation of an order, the Carrier will be

entitled to charge a reasonable fee for the cost of any work,

disbursements, cancellation fees of third parties, materials and/or any

administrative costs incurred by the Carrier up to cancellation, which the

Customer agrees to pay.

16. INSURANCE

16.1 The Customer acknowledges, insurance of the Goods will not be affected

by the Carrier for the benefit of the Customer.

17. CHANGE OF OWNERSHIP

17.1 The Customer must give written notice to the Carrier at least 7 days

before:

(a) the sale of its business; or

(b) a change of control or ownership occurs in relation to the Customer

(including where there is a change in the shareholding so that a

different person or persons will control the board of directors of

more than 50% of the voting shares (except in the case of a publicly

listed company)).

17.2 A new Credit Application must be completed and approved by the Carrier

before the Carrier will accept orders from a new owner of the business of

the Customer which has had a change of control.

18. LIMITATION OF LIABILITY

18.1 The Customer acknowledges and agrees:

(a) the transport of the goods by road is inherently risky;

(b) the Carrier is not responsible for any damage to the Goods caused by

or arising from:

i) the packaging of the Goods;

ii) the nature or condition of the Goods; and

iii) the conditions of the roads or traffic;

by the Carrier at law in relation to the Goods.

18.2 Subject to clauses 18.4 and 18.5, the Carrier excludes all statutory

guarantees and/or implied terms and warranties to the maximum legal

extent and, to the extent that terms and warranties cannot be so

excluded, the Carrier limits its liability under them to (at the Carrier’s

election):

(a) the supply of the Services again; or

(b) the payment of the cost of having the Services supplied again.

18.3 The Carrier is not liable to the Customer under these Terms for any:

(a) losses of an indirect or consequential nature; or

(b) to the extent not already covered in clause 18.3(a) loss of profit,

sales, turnover, reputation, retailers, goodwill, anticipated savings,

opportunities or loss in connection with another contract.

18.4 Nothing in these Terms will exclude, restrict or modify the application of

any legislation, including any statutory guarantee, which by law cannot be

excluded, restricted or modified.

18.5 Anything in these Terms that purports to exclude or limit a term,

warranty, statutory guarantee or pre-contractual statement shall apply to

the maximum extent permitted by law.

19. INDEMNITY

19.1 The Customer indemnifies the Carrier against and must pay the Carrier on

demand any losses, expenses, damages, commissions, interest, charges,

liabilities and costs (including legal costs on an indemnity basis) arising

from or relating to the Customer’s failure to comply with its obligations

under these Terms or breach of these Terms or any related document

with the Carrier.

19.2 Any losses, expenses, damages, commissions, interest, charges, liabilities

and costs referred to in clause 19.1 may be recovered by the Carrier as a

liquidated debt.

20. SUSPENSION OR TERMINATION

20.1 The Carrier may cease accepting orders from the Customer at any time.

20.2 Without prejudice to any of its other rights, the Carrier may suspend

deliveries, require payment in advance of delivery or terminate any or all

of the Customer’s orders by written notice to the Customer.

21. NOTICES

Any notice from one party to the other will be effective if served

personally, by fax, email or pre-paid post to the registered office of a

party or its last known place of business. The notice will be deemed to

have been received within 2 business days of posting or immediately if

served personally or by fax or email.

22. OTHER COVENANTS

22.1 The Carrier may at any time after giving at least fourteen (14) days notice

in writing to the Customer vary these Terms. The Terms as varied will not

apply to any order already in existence at the date of change.

22.2 A party's failure or delay to exercise a power or right does not operate as

a waiver of it. The exercise of a power or right does not preclude its

exercise in the future or the exercise of any other power or right.

22.3 Any provision of these Terms that, by its nature, is intended to survive

termination of these Terms will continue to operate after the

Carrier/buyer relationship of the parties is terminated.

22.4 If any provision of these Terms is found to be invalid or unenforceable

then it is deemed to be severed and the remainder of these Terms will

remain valid and enforceable.

22.5 The Customer may not assign the benefit of these Terms except with the

prior written consent of the Carrier.

CONDITIONS OF CARRIAGE

22.6 The Carrier may assign any of its obligations under these Terms to another person.

22.7 Unless otherwise agreed in writing the Carrier and the Customer acknowledge that these Terms constitute the entire agreement in relation to its subject matter. All representations, communications, and prior agreements are superseded by these Terms.

22.8 The laws in force in the State of Queensland govern these Terms and the parties submit to the nonexclusive jurisdiction of the Courts of that State and Courts able to hear appeals from them.

23. PRIVACY ACT 1988 (PRIVACY ACT)

23.1 This clause applies to personal information of individuals.

23.2 To enable the Carrier to assess the Customer’s application for credit, the Customer authorises the Carrier:

(a) to obtain from a credit reporting agency a credit report containing personal information about it and its guarantors; and

(b) to obtain a report from a credit reporting agency and other information in relation to its commercial credit activities; and

(c) to give to and obtain from any credit provider named in the accompanying credit application and credit providers that may be named in a credit report issued by a credit reporting agency information about its credit arrangements. The Customer understands that this information can include any information about its credit worthiness, and/or its guarantor’s credit standing, credit history or credit capacity that credit providers are allowed to give or receive from each other.

23.3 The Customer understands the information can be used for the purposes of assessing its application for credit, assisting it to avoid defaulting on its credit obligations, notifying other credit providers of a default by it and assessing its credit worthiness.

24. DEFINITIONS

Unless the context requires otherwise, in these Terms:

(a) Additional Security includes any personal guarantee, indemnity or charge given to the Carrier to secure the Customer’s payments and other obligations to the Carrier;

(b) Brisbane Depot means the premises the Carrier leases at 1728 Ipswich Road, Rocklea 4106;

(c) Credit Account means a Credit Application which has been properly completed by a Customer and approved by the Carrier;

(d) Dangerous Goods means any goods which are dangerous goods for the purposes of the Transport Operations (Road Use Management) Act 1995 (Qld) or any corresponding legislation in another jurisdiction;

(e) Event of Default means:

(i) the Customer fails to pay the Carrier for Services when due under these Terms;

(ii) the Customer breaches or fails to comply with its obligations under its Credit Application, these Terms or any Additional Security;

(iii) there is an Insolvency Event in relation to a Customer or a Guarantor.

(f) Goods means the goods of the Customer which the Carrier has been supplied with for carriage for the Customer;

(g) GST means the goods and services tax under the GST Law;

(h) GST Law means A New Tax System (Goods and Services Tax) Act 1999 and includes other GST related legislation;

(i) Interest Rate means the rate of 12% per annum compounding daily;

(j) Insolvency Event includes, if the Customer:

(i) being a natural person commits an act of bankruptcy;

(ii) being a corporation is subject to:

1. a petition being presented, an order being made or a meeting being called to consider a resolution for the buyer to be wound up, deregistered or dissolved;

2. a receiver, receiver and manager, administrator or liquidator under the Corporations Act 2001 being appointed to all or any part of the Customer’s property and undertaking;

3. the entering of a scheme of arrangement (other than for the purpose of restructuring);

4. any assignment for the benefit of creditors;

5. fails to comply with or set aside a creditor’s statutory demand when required;

(k) Invoice means an invoice issued by the Carrier to the Customer for Services;

(l) Payment Date means:

(i) where credit is available to the Customer - the date which is not later than the number of days specified on the Credit Application; otherwise,

(ii) the payment date specified in the Carrier’s invoice;

(m) PPSA means the Personal Property Securities Act 2009;

(n) Services means any transport services provided by the Carrier to the Customer or which the Carrier has agreed to arrange for the Customer;

(o) Terms means these Conditions of Carriage, as amended from time to time.

24.2 In these Terms, unless the context requires otherwise:

(a) a reference to:

(i) one gender includes the other genders;

(ii) the singular includes the plural and the plural includes the singular;

(iii) a person includes a natural person, partnership, body corporate, joint venture, association, government, authority, agency or other entity;

(iv) a party includes that party's executors, administrators, successors and permitted assigns;

(v) a document is to that document as amended, novated or replaced from time to time;

(vi) money is to Australian dollars;

(vii) “including" and similar expressions are not words of limitation;

(viii) a statute, regulation or provision of a statute or regulation ("Statutory Provision") includes:

(ix) that Statutory Provision as amended or re-enacted from time to time; and

(x) a statute, regulation or provision enacted in replacement of that Statutory Provision, or if relevant, the predecessor to that statute, regulation or provision;

(xi) where a word or expression is given a particular meaning, other parts of speech and grammatical forms of that word or expression have a corresponding meaning;

(xii) terms defined in GST Law have the same meaning in these Terms; and

(xiii) terms defined in the PPSA have the same meaning in these Terms.

(b) A provision of these Terms must not be construed to the disadvantage of a party merely because that party was responsible for the preparation of these Terms or the inclusion of the provision in these Terms.

(c) If an act must be done on a specified day which is not a Business Day, it must be done instead on the next Business Day.

(d) Any Schedule and Annexure to these Terms forms part of these Terms.

(e) If a party consists of more than one person, these Terms binds them jointly and each of them severally.

(f) Headings are for convenience only and do not affect the interpretation or form part of these Terms.

(g) A Customer which is a trustee is bound in its capacity as a trustee and personally

Terms and conditions

Conditions of Carriage

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