These Terms and Conditions form an essential part of the Contract of carriage and, by accepting the Services, the Customer acknowledges that it has read, understood and agreed to be bound by them.
INTERPRETATION
1. In these Terms and Conditions:
Headings do not effect the interpretation of these Terms and Conditions.
RIGHT TO REFUSE CARRIAGE
2. The Carrier is not a common carrier and will accept no liability as such. All Services are provided by the Carrier subject only to these Terms and Conditions and the Carrier reserves the right to refuse to provide Services in respect of any Article or class of Articles at its discretion.
SUB-CONTRACTING
3. The Customer hereby authorises the Carrier to engage a Sub-Contractor(s) to provide all or part of the Services. Such Sub-Contractor shall be entitled to the full benefit of every exemption, limitation and condition afforded to the Carrier by these Terms and Conditions. In so far as it may be necessary to ensure that such Sub-Contractor shall be so entitled, the Carrier shall be deemed to enter into this Contract for its own benefit and also as agent for the Sub-Contractor.
4. The Customer undertakes that no claim will be made against any employee, agent, officer, servant or Sub-Contractor of the Carrier. If any such claim should nevertheless be made, the Customer shall indemnify the Carrier against all consequences thereof.
METHOD OF CARRIAGE
5. If it is expressly agreed that the Carrier will use a particular method of handling or storing of the Articles or a particular method of carriage, the Carrier will use reasonable endeavours to adopt that method but the Carrier reserves the right to handle, store or carry, or have the goods handled, stored or carried, by any other method or methods as the Carrier in its discretion thinks fit.
6. The Customer hereby authorises any deviation from the usual route or manner of cartage and/or storage of Articles which may in the absolute discretion of the Carrier be deemed reasonable or necessary in the circumstances.
CARRIER'S LIMITATION OF LIABILITY
7. The Articles are at all times at the sole risk of the Customer unless expressly agreed by the Carrier in writing.
8. Subject to clauses 9 and 10 of these Terms and Conditions, the Carrier shall not be responsible for any reason, whether in tort, contract or otherwise, for any loss of, damage to, deterioration of, misdelivery or failure to deliver, or delay in delivery of, Articles, or in relation to the provision of the Services generally, including without limitation in respect of chilled, frozen, refrigerated or perishable Articles.
9. Notwithstanding anything herein contained, the Carrier shall continue to be subject to any mandatory implied warranty provided by the Competition and Consumer Act 2010 (Cth) (as amended) if and to the extent that the said Act is applicable to this Contract.
10. Subject to clause 9, and to the extent permissible by law, the Carrier's liability under this Contract, including any liability implied by statute or resulting from negligence, breach of any term, condition or warranty is limited to, at the Carrier's sole option:
(i) the supply or re-supply (as the case may be) of the Services; or
(ii) the payment of the cost of having the Services supplied again, as reasonably assessed by the Carrier.
11. The Customer shall be liable for any damage, occurring during the provision of the Services, to the property of:
(i) the Carrier;
(ii) Sub-Contractors;
(iii) the Carrier's employees or agents;
(iv) any person; or
(v) any bicycle or vehicle (as the case may be),
caused by the Customer or owner of the Article or any person acting on behalf of either of them or for which the Customer is otherwise responsible.
DELIVERY
12. The Carrier is authorised to deliver the Articles to the address provided to the Carrier by the Customer for that purpose and it is expressly agreed that the Carrier shall be taken to have delivered the Articles in accordance with this Contract if at that address the Carrier obtains from any person a receipt or a signed delivery docket for the Articles.
13. If the address provided to the Carrier for the purposes of delivery is unattended at the time of delivery, or if delivery cannot reasonably be effected by the Carrier (other than by reason of the negligence of the Carrier) the Carrier may deposit the Articles at that address (which shall be deemed to be compliant delivery within the terms of this Contract) or store the Articles and if the Articles are stored the Customer shall pay the Carrier for all costs and expenses incurred as a result of that storage and redelivery.
14. It is agreed that the person delivering any Articles to the Carrier is authorised to sign documentation evidencing or in respect of this Contract for or on behalf of the Customer.
CUSTOMER'S WARRANTIES
15. The Customer warrants that the Customer is either the owner or the authorised agent of the owner of each Article and by entering into this Contract the Customer accepts these Terms and Conditions for the Customer as well as for all other persons on whose behalf the Customer is acting.
16. The Customer warrants the accuracy of all information provided to the Carrier, its employees, agents, officers, servants and Sub-Contractors under this Contract, in relation to the Articles or otherwise.
17. The Customer warrants not to use the Service for any illegal, immoral, obscene or fraudulent purpose or for any purpose prohibited by law.
CHARGES
18. Prices quoted by the Carrier are those that are applicable at the time of placing an order and are subject to change prior to acceptance. Prices may be subject to waiting and loading time. A fuel levy is charged on all motorised jobs
19. The Carrier's charges shall be considered earned upon the Articles leaving the Customer's premises (or, if the Articles are delivered to the Carrier, leaving the Carrier's premises). The Customer will be and remains responsible to the Carrier for all of its proper charges incurred for any reason in the performance of the Services.
20. Words and expressions used in this clause 20 which have a defined meaning in the GST Act have the same meaning in this clause as in the GST Act. Unless expressly stated otherwise, all consideration to be provided under this document is expressed exclusive of GST. If GST Is payable by a supplier on any supply made under this document, the recipient will, upon receiving a tax invoice from the supplier, pay to the supplier an amount equal to the GST payable on the supply.
21. Payment terms are 7 days from the date of invoice.
LIEN
22. The Carrier shall have a lien on:
(i) the Articles;
(ii) any other goods in the possession of the Carrier; and
(iii) any documents relating to the items referred to at (a) and (b) of this clause 22,
for all sums payable by the Customer to the Carrier, whether in connection with this Contract or otherwise.
23. If, on demand, the Customer fails to pay charges due to the Carrier, the Carrier may, at its sole discretion, sell all or part of those items referred to at clause 22 with or without notice to the Customer. The Carrier may direct the proceeds of such sale: (i) firstly, towards the satisfaction of the Customer's debt to the Carrier; (ii) secondly, towards the reimbursement of the Carrier's reasonable costs (including storage costs and the Carrier's legal costs on an indemnity basis); and (iii) finally, to the Customer in respect of any remaining proceeds from the sale.
DANGEROUS ARTICLES
24. The Customer must not tender a Dangerous Article for the provision of Services without the Carrier's prior written approval, which may be withheld at the Carrier's sole discretion.
25. The Customer shall fully advise the Carrier in advance of the description and nature of any Dangerous Articles and shall fully indemnify the Carrier, its employees, agents, officers, servants and Sub-Contractors against all loss and damage suffered by the Carrier, its employees, agents, officers, servants Sub-Contractors, and any claim brought against the Carrier, its employees, agents, officers, servants or Sub-Contractors arising out of or in connection with the performance of the Services in relation to a Dangerous Article.
26. The Carrier reserves the right, but is not obliged, to open, inspect, dispose of, abandon or render harmless any Article which it reasonably suspects to be a Dangerous Article, without compensation to the Customer and without prejudice to the charges payable by the Customer under this Contract
PACKAGING
27. The Customer expressly warrants that the Customer has compiled with all laws and regulations relating to the notification, classification, packaging, labelling, storage and carriage of the Articles (including without limitation the Australian Code for the Transport of Dangerous Goods by Road and Rail) and that the Articles are packed in a satisfactory manner, given their nature, so that they are capable of withstanding the ordinary risks of storage and carriage.
28. These Terms and Conditions shall apply to the container or containers or other packaging containing the Articles and to any pallet or pallets delivered with the Articles to the Carrier. The Customer shall be responsible for the conformity of such containers, packaging and pallets with any requirements of the Carrier and for any expense incurred by the Carrier arising from any failure to so conform.
CUSTOMER'S PREMISES
29. The Customer shall strictly comply with all laws and regulations relating to the safety of persons on or about its premises and shall fully indemnify the Carrier, its employees, agents, officers, servants and Sub-Contractors against all costs, liabilities or expenses arising out of the Customer's failure to maintain a safe environment for the Carrier, its employees, agents, officers, servants and/or Sub-Contractors.
TIME LIMITS ON CLAIMS
30. Any claim for loss or damage to the Articles (which if made will be subject to the limitations in clause 10) shall be notified in writing by the Customer to the Carrier within 7 days of the date of delivery of the Articles to the Customer or the date by which the Articles should have been delivered to the Customer (whichever is the earlier), failing which the Articles shall be deemed to have been delivered in good order and condition in compliance with the terms of this Contract and any claim under this Contract shall be waived by the Customer and the Carrier shall have no liability whatsoever.
31. Notwithstanding clause 30 above, the Carrier shall be fully discharged from all liability to the Customer in the event that the Customer does not commence Court proceedings within six (6) months of the date on which the Articles were received by the Carrier under this Contract.
INDEMNITY
32. The Customer fully and irrevocably indemnifies the Carrier, its employees, agents, officers, servants and Sub-Contractors in respect of any and all loss, costs, liabilities and/or expenses arising out of or in relation to any breach by the Customer of, or any failure to comply with any warranty provided by the Customer in, this Contract.
CHAIN OF RESPONSIBILITY LEGISLATION
33. The Customer acknowledges and warrants that it is aware of, understands, and will fully comply with, its obligations and responsibilities as a consignor under the Heavy Vehicle National Law and/or any other "chain of responsibility" legislation in respect of road transportation as applicable in each Australian State and Territory.
LAW AND JURISDICTION
34. These Terms and Conditions are governed by and shall be construed in accordance with the laws of the State of New South Wales and the parties submit to the exclusive jurisdiction of the courts of that State.
PRIVACY
35. The parties must act in accordance with the Privacy Act 1988 (Cth) including the Australian Privacy Principles (Privacy Act) and any other relevant privacy legislation from time to time in force, in dealing with any individual's personal information collected, used, held or disclosed by either of them pursuant to or in connection with these Terms and Conditions.
36. The Customer must ensure that, in respect of any personal information it discloses to the Carrier it takes reasonable steps to ensure that the subject of the personal information is aware that the Customer will disclose certain personal information collected by it to the Carrier and the purpose of the disclosure and that the individual is made aware all relevant matters under the Privacy Act, at or before the time of, or as soon as practicable after the Customer collects the personal information from the individual.
AMENDMENT
37. The Carrier may amend these Terms and Conditions from time to time and without notice to the Customer. Any and all amendments to these Terms and Conditions shall be published on mailcall.com.au and shall be effective on the date of publication. The Customer is responsible for checking these Terms and Conditions periodically to remain updated and in compliance with these terms. The Customer's continued use of the Services after any amendment to the Terms and Conditions shall constitute acceptance by the Customer of the amended Terms and Conditions, and the Customer also agrees to be bound by any such changes/ versions.
SEVERANCE
38. If any clause (or part thereof) of this Contract is or becomes unenforceable or invalid such clause shall be severed and that unenforceability or invalidity shall not affect the enforceability of the remainder of the clause or any other clause of this Contract.
