1.1 “Company” shall mean Container Swinglift Services Pty Ltd its servants, subcontractors, agents and its successors and assigns.
1.2 “Sub-Contractor” shall mean any person who pursuant to a contract or arrangement with any other person (whether or not the Company) performs or agrees to perform the carriage or any part thereof of the Goods or any part thereof.
1.3 “Consignor” shall mean the customer with whom this contract is made by the Company.
1.4 “Owner” shall mean and include any legal owner, beneficial owner and any mortgagee and charge of the Goods and any subcontractor, servant or agent of any of them and any consignor, consignee, shipper or agent for the sale or custody of the Goods and any person (other than the Company) entitled or who may become entitled to make any claim to an interest in respect of the Goods.
1.5 “Guarantor” means that person (or persons), or entity who agrees herein to be liable for the debts of the Consignor on a principal debtor basis.
1.6 “Carriage” shall mean and include the whole of the operations and services undertaken by the Company in connection with the goods including but not limited to storage, packing, unpacking, repacking, loading and unloading of the goods or part thereof.
1.7 “Goods” shall mean the cargo or any part of the cargo including perishable cargo accepted by the Company from the Consignor and includes any containers, pallets, packaging and anything utilised in the carriage to contain the cargo or any part of the cargo (and where the context so permits shall include any supply of Services as hereinafter defined).
1.8 “Services” shall mean all services supplied by the Company to the Consignor and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined supra).
1.9 “Price” shall mean the cost of the Services as agreed between the Company and the Consignor subject to clause 4 of this contract.
2.1 Any instructions received by the Company from the Consignor for the supply of Services shall constitute acceptance of the terms and conditions contained herein.
2.2 Upon acceptance of these terms and conditions by the Consignor the terms and conditions are irrevocable and can only be rescinded in accordance with these terms and conditions or with the written consent of the manager of the Company.
2.3 None of the Company’s agents, contractors or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the manager of the Company in writing nor is the Company bound by any such unauthorised statements.
2.4 Where the context permits:
(a) singular shall include plural;
(b) neuter gender shall include male and female genders;
(c) person shall include a company.
2.5 These terms and conditions are to be read in conjunction with the Company’s invoices, consignment note, agreement, airway bills, manifests, or any other forms as provided by the Company to the Consignor. If there are any inconsistencies between these documents then the terms and conditions contained in this document shall prevail.
3.1 The Services shall be as described on the invoices, consignment Note, airway bills, manifests, sales order or any other forms as provided by the Company to the Consignor.
3.2 Under no circumstances whatsoever will the Company be responsible or liable for the collection on behalf of and/or delivery to the Consignor or any other person of cash or any other payment in respect of the Goods.
4. Price And Payment
4.1 At the Company’s sole discretion;
(a) The Price shall be as indicated on invoices provided by the Company to the Consignor in respect of Services supplied; or
(b) The Price of the Services shall be (subject to clauses 4.2 and 4.3) the Company’s quoted Price that shall be binding upon the Company provided that the Consignor shall accept the Company’s quote within thirty (30) days.
4.2 The Company may by giving notice to the Consignor increase the Price of the Services to reflect any increase in the cost to the Company beyond the reasonable control of the Company (including, without limitation, foreign exchange fluctuations, or increases in taxes or customs duties or insurance premiums or warehousing costs).
4.3 The Company may charge for the carriage of the Goods by reference to the weight, measurement, value or such other means as the Company in its absolute discretion considers appropriate and may at any time re-weigh, re-measure or re-value the Goods or require the Goods to be re-weighed, re-measured or re-valued and charge additional charges if there are changes to the weight, measurement or value of the Goods.
4.4 Where it is agreed that the charges for carriage will be paid by the Consignee, the Consignor must indemnifies the Company against any loss resulting from the non-payment of the charges by the Consignee, and without limiting the generality of the foregoing, the Consignor agrees to pay the company on demand any charges not paid by the Consignee.
4.5 Time for payment for the Services shall be of the essence and will be stated on the invoice, consignment Note, airway bills, manifests or any other order forms. If no time is stated then payment shall be due fourteen (14) days following the month the service is provided.
4.6 Payment will be made by cash, or by cheque, or by bank cheque, or by direct credit, or by any other method as agreed to between the Consignor and the Company.
4.7 The Price shall be increased by the amount of any GST and other taxes and duties that may be applicable, except to the extent that such taxes are expressly included in any quotation given by the Company.
5. Company Not Common Carrier
5.1 The Company is not a Common Carrier and will accept no liability as such. All articles are carried or transported and all storage and other services are performed by the Company subject only to these conditions and the Company reserves the right to refuse the carriage or transport of articles for any person corporation or Company and the carriage or transport of any class of articles at its discretion.
6. Consignor-Packed Containers
6.1 If a Container has not been stowed by or on behalf of the Company the Company shall not be liable for loss of or damage to the Goods caused by;
(a) the manner in which the Container has been stowed; or
(b) the unsuitability of the Goods for carriage in Containers; or
(c) the unsuitability or defective condition of the Container.
6.2 The Company is authorised by the Consignor or owner of the Goods to open the Goods or any container, packaging or anything utilised in the carriage of the Goods at any time to determine their nature or condition or for any other purpose which the Company in its absolute discretion may consider desirable or necessary and the Company is not liable nor shall any claim be made against the Company as a result of the Company inspecting the Goods.
7. Nomination Of Sub-Contractor
The Consignor hereby authorises the Company (if it should think fit to do so) to arrange with a Sub-Contractor for the carriage of any Goods the subject of the contract. Any such arrangement shall be deemed to be ratified by the Consignor upon delivery of the said Goods to such Sub-Contractor, who shall thereupon be entitled to the full benefit of these terms and conditions to the same extent as the Company. In so far as it may be necessary to ensure that such Sub-Contractor shall be so entitled the Company shall be deemed to enter into this contract for its own benefit and also as agent for the Sub-Contractor.
All provisions of these Terms and Conditions as regards exemptions, limitations and defences shall be applicable to the Company, or to which the Company is entitled are also available and extend to protect:
(a) all subcontractors of the Company;
(b) all servants or agents of the Company or of subcontractors;
(c) any other person (other than the Company) who performs the services; and
(d) all persons who are or maybe vicariously or otherwise liable for the acts or omissions of any person falling within (a), (b) or (c) hereof.
8. Method Of Transport
8.1 If the Consignor expressly or impliedly instructs the Company to use or it is expressly or impliedly agreed that the Company will use a particular method of carriage handling or storing the Goods and it cannot conveniently be adopted by the Company, the Consignor authorises the Company to have the Goods carried handled or stored by any other means.
9. Route Deviation
9.1 The Consignor acknowledges and agrees that the Goods may be carried by any route and means, or stored in any place which may in the absolute discretion of the Company be deemed as desirable or necessary in the circumstances.
The Company is authorised to deliver the Goods at the address nominated to the Company by the Consignor for that purpose and the Company shall be conclusively presumed to have delivered the Goods in accordance with this contract and in good order and condition if a signed delivery docket for the Goods is obtained by the Company or if a consignment note is signed by the Consignee or the Owner acknowledging receipt of the Goods in good order and condition.
If the nominated address is unattended or if delivery cannot otherwise be effected, the Company may at its option deposit the Goods at the place (which shall be conclusively presumed to be due delivery) or store the Goods in such manner as the Company in its discretion considers desirable or necessary and if the Goods are stored by the Company, the Consignor must pay the Company for all storage costs and expenses.
The Company may deliver the Goods by separate instalments (in accordance with the agreed delivery schedule). Each separate instalment shall be invoiced and paid for in accordance with the provisions in this contract.
Subject to clause 20, carriage of the Goods is solely at the risk of the Consignor and Owner and the Company is not responsible in tort, contract, bailment or otherwise for any (and the consequences of any) loss of or damage to or deterioration of the Goods, or mis-delivery or failure to deliver or delay in delivery of the Goods for any reason whatsoever including without limiting the foregoing the negligence or breach of contract or wilful act or default of the Company or others and this clause shall apply to all (and the consequences of all) such loss of or damage to or deterioration of the Goods or mis-delivery or failure to deliver or delay in delivery of the Goods as aforesaid whether or not the same occurs in the course of performance by or on behalf of the Company of these Terms and Conditions or events which are in the contemplation of the Company and/or the Consignor or in events which are foreseeable by them or either of them or in events which could constitute a fundamental breach of this contract or a breach of a fundamental term hereof.
11. Loss Or Damage
11.1 The Consignor acknowledges and agrees that the loss of or damage to the Goods or any part thereof shall not of itself constitute prima facie evidence of negligence by the Company or breach of agreement by the Company in respect of the Goods or of any matter, fact or circumstance which may give rise to any liability whatsoever on the part of the Company.
11.2 If the Company is liable for damage to or loss of the Goods or any part thereof no claim in respect of such loss or damage may be made unless notice of the claim is lodged in writing at the principal place of business of the Company in Queensland within seven (7) days of delivery of the Goods.
12. Unpaid Company’s Rights to Dispose of Goods
12.1 The Company shall have a lien on the Goods and any documents relating thereto and on any other Goods of the Consignor in the possession of the Company or any documents relating thereto for all sums payable by the Consignor to the Company and for that purpose shall have the right to sell any such Goods by public auction or private treaty without notice to the Consignor. Without prejudice to any other rights which the Company may have in respect of all or part of all unpaid charges, and the Company will have no liability whatsoever to either the Consignor or the owner of the Goods for selling them under this clause.
13.1 The Consignor acknowledges that, unless the Company is specifically requested in writing to do so, the Company is under no obligation whatsoever to insure the Goods and that it remains at all times the responsibility of the Consignor and/or the Owner of the Goods to insure the Goods.
14. Charges Earned
14.1 The Company’s charges shall be deemed fully earned when the Goods are loaded and dispatched from the Consignor’s premises or delivered to and accepted by the Company for carriage and whether or not the Goods are delivered by the Company to the place nominated by the Consignor or are delivered in a damaged condition.
15.1 The Consignor is responsible to the Company for payment of all charges incurred in connection with the Goods. A charge may be made by the Company in respect of a delay in excess of;
(a) one (1) hour in loading/unloading of any container at the wharf, or
(b) one (1) hour in loading/ unloading of a twenty (20) foot container at the Consignors/Consignees premises; or
(c) one and a half (1 1/2) hours in loading/unloading of a forty (40) foot container at the Consignors/Consignees premises,
except where the delay is caused by the Company. Such delay period shall commence when the Company reports for loading or unloading of the Goods. The cost of labour to load or unload Goods shall be and remain the responsibility and expense of the Consignor.
16. Dangerous Goods
16.1 The Consignor or his authorised agent shall not tender for carriage any explosive, inflammable or otherwise dangerous Goods without presenting a full description of those Goods and in default of so doing shall be liable for all loss and damage cased thereby.
17. Consignment Note
17.1 It is agreed that the person delivering any Goods to the Company for carriage or forwarding is authorised to sign the consignment note for the Consignor.
18. Consignors Responsibility
18.1 The Consignor warrants that;
(a) All particulars and descriptions of the Goods provided by the Consignor to the Company are correct and accurate; and
(b) Except as may be notified in writing to the Company prior to the acceptance of the Goods for carriage, the Goods are not noxious, dangerous, hazardous, explosive, inflammable, volatile, radioactive, offensive or of an unlawful nature or are not likely to cause or reasonable capable of causing loss, damage or injury to any other Goods or to any vehicle or premises in which the Goods may be located from time to time and in any event the Consignor is liable for all loss, damage or injury caused thereby. If in the opinion of the Company the Goods are or are capable of becoming noxious, dangerous, hazardous, explosive, inflammable, volatile, radioactive, offensive or of an unlawful nature or are likely to cause loss, damage or injury to any other Goods or to any person or to any vehicles or premises in which the Goods may be located from time to time, the Company is authorised to destroy, dispose or abandon or render harmless the Goods and is not liable to the Consignor or Owner for dealing with the Goods under this clause; and
(c) It has complied with all laws and regulations relating to the packaging, labelling, carriage and storage of the Goods and the Goods are packed in a manner adequate to withstand the ordinary risks of damage in the carriage and/or storage having regard to the Goods.
18.2 The Consignor agrees to indemnify the Company against all loss and expense suffered or incurred by the Company or for which the Company becomes liable by reason of:
(a) any breach of the warranties in clause 18.1; and
(b) The Company complying with any laws and regulations applicable to the Goods, including any laws and regulations with respect to the carriage of the Goods and including any such laws referred to in Clause 18.1(b).
19.1 The Consignor warrants and acknowledges that no representation made by the Company in respect of carriage of the Goods has been relied on by the consignor in entering the Terms and Conditions.
19.2 The Consignor undertakes:
(a) that no claim shall be made by the Consignor or the Owner of the Goods against any person (other than the Company) by whom (whether as subcontractor, principal, employer, servant, agent or otherwise) the carriage is performed which imposes or attempts to impose upon such person any liability whatsoever and howsoever arising (including, without limiting the foregoing, from negligence or breach of contract or wilful act or default of the Company or others) in connection with the Goods and if any such claim should nevertheless be made, the Consignor undertakes to indemnify the Company and the person against who such claim is made against the consequences thereof. Without prejudice to the foregoing and for purpose of this clause, the Company is and shall be deemed to be acting as agent on behalf of and for the benefit of all such persons and each of them shall to this extent be and be deemed to be parties to this contract;
(b) to indemnify the Company against any claim against if by any person in connection with any loss of or damage to the Goods occurring at any time during the carriage of the Goods or any part thereof.
19.3 Notwithstanding that the Consignor is not the owner of the Goods, the Consignor agrees to indemnify the Company and keep indemnified for any liability whatsoever and howsoever arising from the owner of the Goods for claims of negligence/breach of contract/wilful act or default of the Company or others in connection with the Goods.
20. The Commonwealth Trade Practices Act 1974 and Fair Trading Acts
20.1 Notwithstanding anything herein contained the Company shall continue to be subject to any implied warranty provided by the Trade Practices Act 1974, as amended, if and to the extent that the said Act is applicable to this contract and prevents the exclusion, restriction or modification of any such warranty.
20.2 In the event the Company is liable to the Consignor and/or Owner for breach of warranty (statutory or otherwise) in respect of the services under the Terms and Conditions, such liability shall be limited to the least of;
(a) The payment of the account for services actually paid or payable by the Consignor or Owner to the Company to a maximum of $5,000.00 AUD; or
(b) An agreed amount which is evidenced in writing; or
(c) The cost to the Company of performing the services again.
21. Default & Consequences Of Default
21.1 Interest on overdue invoices shall accrue from the date when payment becomes due daily until the date of payment at a rate of 2.5% per calendar month and shall accrue at such a rate after as well as before any judgement.
21.2 If the Consignor defaults in payment of any invoice when due, the Consignor shall indemnify the Company from and against all the Company’s costs and disbursements including on a solicitor and own client basis and in addition all of the Company’s nominees costs of collection.
21.3 Without prejudice to any other remedies the Company may have, if at any time the Consignor is in breach of any obligation (including those relating to payment), the Company may suspend or terminate the supply of Services to the Consignor and any of its other obligations under the terms and conditions. The Company will not be liable to the Consignor for any loss or damage the Consignor suffers because the Company exercised its rights under this clause.
21.4 If any account remains unpaid at the end of the second month after supply of the goods or services the following may apply: An immediate amount of the greater of $20.00 or 10.00% of the amount overdue shall be levied for administration fees which sum shall become immediately due and payable.
21.5 In the event that:
(a) any money payable to the Company becomes overdue, or in the Company’s opinion the Consignor will be unable to meet its payments as they fall due, Or;
(b) the Consignor becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors, Or;
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Consignor or any asset of the Consignor,
then without prejudice to the Consignor’s other remedies at law;
(i) the Company shall be entitled to cancel all or any part of any order of the Consignor which remains unperformed in addition to and without prejudice to any other remedies; and
(ii) all amounts owing to the Company shall, whether or not due for payment, immediately become payable.
22.1 Notwithstanding any instructions given to the Company regarding exchange or return of pallets owned by the Consignor or any other person, these Terms and Conditions will apply and the Company shall be under no liability whatsoever for pallets, including where the Consignee or any other person is unwilling or unable to return such pallets.
22.2 Where the Company supplies pallets in the course of carriage the Company will charge the Consignor hiring charges, pick-up costs, repair costs or replacement costs, as the Company in its absolute discretion considers appropriate, for all pallets supplied unless exchange pallets are available at the time of delivery of the Goods and such changes shall be calculated at the then prevailing rates of pallet hire companies in Brisbane.
22.3 The Company undertakes to collect and de-hire empty containers within two (2) working days following the day of being notified in writing by post, facsimile or by e-mail by the Consignor. Such notification is to be made during the Company’s normal working hours.
23. Security And Charge
23.1 Notwithstanding anything to the contrary contained herein or any other rights which the Company may have howsoever:
(a) Where the Consignor and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Consignor and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to the Company or the Company’s nominee to secure all amounts and other monetary obligations payable under the terms and conditions. The Consignor and/or the Guarantor acknowledge and agree that the Company (or the Company’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be released once all payments and other monetary obligations payable hereunder have been met.
(b) Should the Company elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Consignor and/or Guarantor shall indemnify the Company from and against all the Company’s costs and disbursements including legal costs on a solicitor and own client basis.
(c) To give effect to the provisions of clause [23.1 (a) and (b)] inclusive hereof the Consignor and/or the Guarantor (if any) do hereby irrevocably nominate constitute and appoint the Company or the Company’s nominee as the Consignor’s and/or Guarantor’s true and lawful attorney to execute mortgages and charges (whether registerable or not) including such other terms and conditions as the Company and/or the Company’s nominee shall think fit in his/her/its/their absolute discretion against the joint and/or several interest of the Consignor and/or the Guarantor in any land, realty or asset in favour of the Company and in the Consignor’s and/or Guarantor’s name as may be necessary to secure the said Consignor’s and/or Guarantor’s obligations and indebtedness to the Company and further to do and perform all necessary and other acts including instituting any necessary legal proceedings, and further to execute all or any documents in the Company’s absolute discretion which may be necessary or advantageous to give effect to the provisions of this clause.
24. Privacy Act 1988
24.1 The Consignor and/or the Guarantor/s agree for the Company to obtain from a credit reporting agency a credit report containing personal credit information about the Consignor and Guarantor/s in relation to credit provided by the Company.
24.2 The Consignor and/or the Guarantor/s agree that the Company may exchange information about Consignor and Guarantor/s with those credit providers named in the Application for Credit account or named in a consumer credit report issued by a reporting agency for the following purposes:
(a) To assess an application by Consignor;
(b) To notify other credit providers of a default by the Consignor;
(c) To exchange information with other credit providers as to the status of this credit account, where the Consignor is in default with other credit providers; and
(d) To assess the credit worthiness of Consignor and/or Guarantor/s.
24.2 The Consignor consents to the Company being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
24.3 The Consignor agrees that Personal Data provided may be used and retained by the Company for the following purposes and for other purposes as shall be agreed between the Consignor and Company or required by law from time to time:
(a) provision of Services;
(b) marketing of Services by the Company, its agents or distributors in relation to the Goods and Services;
(c) analysing, verifying and/or checking the Consignor’s credit, payment and/or status in relation to the provision of Services;
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by Consignor; and
(e) enabling the daily operation of Consignor’s account and/or the collection of amounts outstanding in the Consignor’s account in relation to the Services.
24.4 The Company may give, information about the Consignor to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Consignor; and or
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Consignor.
25.1 If any provision of these terms and conditions shall be invalid, void or illegal or unenforceable the validity existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
25.2 All Services supplied by the Company are subject to the laws of Queensland and the Company takes no responsibility for changes in the law which affect the Goods supplied.
25.3 The Terms and Conditions, and in particular and without limiting the generality of the limitations and exclusions of the Company’s liability herein contained, shall continue to apply and to be of full force and effect in all circumstance notwithstanding any termination of the agreement made by the Company in respect of the Goods or breach or alleged breach by the Company of the agreement made by the Company in respect of the Goods and in particular any departure by the Company from the agreement made by the Company in respect of the Goods whether by way of deviation or otherwise howsoever.
25.4 In the event of any breach of this contract by the Company the remedies of the Consignor shall be limited to damages. Under no circumstances shall the liability of the Company exceed the Price of the Services.
25.5 The Consignor shall not set off against the Price amounts due from the Company.
25.6 The Company reserves the right to review these terms and conditions at any time and from time to time. If, following any such review, there is to be any change in such terms and conditions, that change will take effect from the date on which the Company notifies the Consignor of such change.
25.7 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.
25.8 The Storage Laws Act 1973 Queensland shall not apply to this agreement.