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CONDITIONS OF CARRIAGE
- DEFINITIONS AND INTERPRETATION
1.1 In these conditions:
Authority includes any legal or administrative authority exercising any jurisdiction within an Australian state or territory.
Carrier means Ryno Industries Pty Ltd (ABN 603 830 137) trading under the business name Nexus Haulage or any other business name and its officers, employees, agents and Subcontractors.
Chain of Responsibility Law means the Heavy Vehicle National Law as enacted in any Australian state, the Road Traffic (Administration) Act 2008 (WA) and the Road Traffic (Vehicles) Act 2012 (WA) and any other Commonwealth, state or territory Law dealing with the obligations of parties involved in the transport of goods by road.
Consequential Loss means any indirect or consequential loss; loss of use; loss of product or production; delayed, postponed, interrupted or deferred production; inability to produce, deliver or process; loss of profit, revenue or anticipated revenue; loss of bargain, contract, expectation or opportunity; punitive or exemplary damages; in each case arising from or in connection with the performance of Services and whether or not foreseeable at the time of entering into any agreement incorporating these conditions.
Consignor means the person engaging the Carrier to provide the Services.
Container includes any container, trailer, wagon, transportable tank, pallet, flat rack or any other unit or device used to consolidate Goods.
Damage means physical damage and includes deterioration, evaporation and contamination.
Dangerous Goods means Goods that are or may become noxious, dangerous, flammable or damaging or that may harbour or encourage vermin or other pests, or that are or may become liable to harm any property whatsoever.
Force Majeure means acts of God, lightning, earthquakes, cyclones, floods, landslides, storms, explosions, fires and any natural disaster, acts of war, acts of public enemies, terrorism, public disorder, riots, civil commotion, malicious damage, vandalism, sabotage, explosions, nuclear accidents, strikes, labour disputes and other industrial disturbances, any road closure or congestion of roads, any quarantine or customs restriction, any interruption of power supply or scarcity of fuel or any accident, collision or breakdown of a vehicle, machinery or equipment.
Goods means the property accepted by the Carrier from, or at the request of, the Consignor for the provision of Services and includes any Container or packaging supplied by or on behalf of the Consignor.
(a) principles of law or equity established by binding court decisions, and
(b) applicable statutes, regulations, proclamations, orders, bylaws, requirements and approvals.
PPSA means Personal Property Securities Act 2009 (Cth).
Services means any operations or services undertaken by or on behalf of the Carrier (whether gratuitously or not), in any way connected with Goods including loading, unloading, packing, unpacking, handling, transporting and storage of Goods, and the provision of any advice.
Subcontractor includes any person who pursuant to a contract or arrangement with any other person (whether or not the Carrier) performs or agrees to perform the Services or any part of them.
1.2 In these conditions:
(a) a reference to a person is to be construed as a reference to an individual, body corporate, unincorporated association, partnership, joint venture or government body;
(b) headings are included for convenience only and do not affect the interpretation of these conditions;
(c) words importing the singular include the plural and vice versa and words importing a gender include other genders;
(d) where a word or phrase is defined, other parts of speech and grammatical forms of that word or phrase have corresponding meanings;
(e) wherever ‘include’ or any form of that word is used, it will be construed as if it were followed by ‘(without being limited to)’;
(f) terms used have the same meaning as under the PPSA; and
(g) all indemnities survive the termination or expiration of any agreement incorporating these conditions.
- NEGATION OF LIABILITY AS A COMMON CARRIER
The Carrier is not a common carrier and will accept no liability as such. All Goods are carried and all Services are performed by the Carrier subject only to these conditions and the Carrier reserves the right to refuse, in its discretion, to provide Services in respect of any goods.
- CARRIER’S OBLIGATIONS
The Carrier will:
(a) take reasonable care to protect and safeguard the Goods;
(b) provide the Services exercising the degree of skill, care and efficiency that would be expected from a competent provider of Services;
(c) at its own expense, hold all licences as may be required by Law in connection with the Services;
(d) use reasonable endeavours to deliver the Goods to the address nominated by the Consignor and to effect delivery at the date and time requested by the Consignor (subject to compliance with all Law, including Chain of Responsibility Law); and
(e) use reasonable endeavours to comply with the Consignor’s reasonable and lawful directions.
- WARRANTIES AND INDEMNITIES
4.1 The Consignor will:
(a) ensure that the loading of the Goods onto the Carrier’s vehicle will not cause the vehicle to exceed any dimension or mass limits under Chain of Responsibility Law;
(b) where the Goods require special treatment, provide written notice to the Carrier of the special treatment required; and
(c) provide all documents, information and assistance necessary to allow the Carrier to comply with the requirements of any Authority.
4.2 The Consignor warrants that:
(a) the Goods are in fit state to allow the Services to be performed and are packed in a manner adequate to withstand the ordinary risks associated with the Services;
(b) it is authorised by all persons owning or having any interest in the Goods to accept these conditions on their behalf;
(c) all details supplied with respect to the Goods, including the details of description, items, pallet space, quantity, weight, volume, quality, value and measurements, are correct;
(d) there is a suitable and safe road and approach for the Carrier’s vehicles to the place from which the Goods are to be collected and the place to which the Goods are to be delivered;
(e) safe and adequate loading facilities and equipment will be available at any place from which any Goods are to be collected and to which any Goods are to be delivered; and
(f) Services are supplied for the purpose of a business, trade, profession or occupation carried on or engaged in by the Consignor.
4.3 The Carrier relies on the details of description, items, pallet space, quantity, weight, quality, value and measurements supplied by the Consignor but does not admit their accuracy.
5.1 The Carrier, at its discretion, may subcontract on any terms the whole or any part of the Services.
5.2 The Consignor agrees that no claim or allegation may be made against any employee, agent, or Subcontractor that imposes or attempts to impose upon such person any liability whatsoever arising out of or in any way connected with the Goods or the Services, whether or not arising out of negligence or a wilful act or omission on the part of any of them and if such claim or allegation should nevertheless be made, to indemnify the Carrier against all consequences of any such claim or allegation.
5.3 Every exemption, limitation, condition and liberty contained in these conditions and every right, exemption from liability, limitation, defence and immunity applicable to the Carrier or to which the Carrier is entitled under these conditions will also be available to and will extend to protect:
(a) all Subcontractors;
(b) every employee or agent of the Carrier or of a Subcontractor; and
(c) all persons who are or are found to be vicariously liable for the acts or omissions of any person falling within clauses 5.3(a) or 5.3(b).
5.4 For the purposes of clause 5.3, the Carrier is or will be deemed to be acting as agent or trustee on behalf of and for the benefit of all such persons and each of them and all such persons and each of them will to this extent be, or be deemed to be, parties to any agreement incorporating these conditions.
- LIABILITY OF CARRIER
6.1 The Consignor agrees that neither the Carrier nor any Subcontractor nor any other person who undertakes the Services will, under any circumstances, (except where any legislation otherwise requires) be under any liability whatever (whether in contract, tort, bailment or otherwise) for any:
(a) loss of the Goods;
(b) Damage to the Goods; or
(c) mis-delivery, delay in delivery or non-delivery of the Goods,
whether in the course of Services or otherwise, unless the Consignor proves that such loss, Damage, mis-delivery, delay in delivery or non-delivery was caused by the negligence or wilful default of the Carrier.
6.2 Any liability of the Carrier under clause 6.1 will be reduced proportionately to represent the extent to which the Consignor (or any other person)’s negligent or wrongful act or omission caused the loss, Damage, mis-delivery, delay in delivery or non-delivery of the Goods.
6.3 Notwithstanding any other provision of these conditions, the Carrier will not be liable for any loss of or Damage to Goods:
(a) caused by:
(i) Force Majeure;
(ii) the Carrier following the Consignor’s instructions;
(iii) vibration, road conditions, weather or weather events of any kind whatsoever;
(iv) the Goods being inherently defective or in such a condition that they cannot be loaded, unloaded or transported by road without Damage;
(v) inherent vice or the nature of the Goods;
(vi) insufficiency or unsuitability of packing or preparation of the Goods to withstand the ordinary risks associated with the Services; or
(b) comprising electrical or mechanical derangement, shrinkage or ordinary wear and tear.
6.4 Notwithstanding any other provision of these conditions, the Carrier will not be liable, under any circumstances, for any claim for Consequential Loss.
6.5 The maximum aggregate liability of the Carrier in relation to or in any way connected with any loss of Goods or Damage to Goods, or misdelivery, delay in delivery or non-delivery of Goods is limited to $5,000 for each incident. For the purposes of this subclause, ‘incident’ means any event which results in loss of Goods or Damage to Goods and all claims that result from the one original cause will be considered, for the purpose of this subclause, to have arisen from the same incident.
Notwithstanding any other provision of these conditions, the Consignor:
(a) acknowledges that the Carrier has no liability or responsibility in relation to any hire charge or demurrage charge associated with any pallet; and
(b) must ensure that any pallets are transferred to and from any relevant hire accounts and that any necessary documentation is provided to relevant pallet hire businesses.
- ROUTE AND DEVIATION
8.1 The Consignor authorises any deviation from the usual route for transportation or manner of provision of Services that may, in the absolute discretion of the Carrier, be considered desirable or necessary in the circumstances.
8.2 If the Consignor expressly or impliedly instructs the Carrier to use, or it is expressly or impliedly agreed that the Carrier will use a particular method of providing or performing the Services, the Carrier will give priority to that method but if it cannot conveniently be adopted by the Carrier, the Consignor authorises the Carrier to provide the Services using another method.
9.1 The Carrier is authorised to deliver the Goods at the address nominated to the Carrier for that purpose. The Carrier will be deemed to have delivered the Goods if, at that address, it obtains from any person a receipt or signed delivery docket for the Goods.
9.2 If the nominated place of delivery is unattended or if delivery cannot otherwise be effected by the Carrier, the Carrier may, at its option, deposit the Goods at that place (which will be conclusively presumed to be due delivery under these conditions), store the Goods or redeliver the Goods to the Consignor at the Consignor’s expense.
9.3 If the Goods are stored by the Carrier pursuant to clause 9.2:
(a) the Consignor will pay or indemnify the Carrier for all costs and expenses incurred with respect to such storage; and
(b) the Carrier may, at any time, redeliver the Goods to the Consignor at the Consignor’s expense.
10.1 The Goods are accepted subject to a general lien for all charges due or that may become due to the Carrier by the Consignor on any account whatsoever, whether in respect of the Goods or in respect of any other goods in respect of which the Carrier provides or has provided Services.
10.2 Without prejudice to any other rights the Carrier may have under Law, if charges are not paid when due, or the Goods are not collected when required or designated, the Carrier may:
(a) remove all or any of the Goods and store them as the Carrier thinks fit, at the Consignor’s risk and expense; or
(b) on the provision of 14 days’ notice, open and sell all or any of the Goods as the Carrier thinks fit (whether by private treaty or public auction, including auction on an internet based platform) and apply the proceeds to discharge the lien and costs of sale without being liable to any person for any loss caused.
10.3 The parties agree that the lien arising under these conditions:
(a) attaches to the Goods when the Goods are accepted by the Carrier; and
(b) is a security interest.
10.4 On request by the Carrier, the Consignor must promptly do anything for the purposes of ensuring that any security interest created under, or provided for by, these conditions is enforceable, perfected (including perfection by registration), maintained and is otherwise effective. Anything that is required to be done under this clause will be done at the Consignor’s expense. The Consignor agrees to reimburse the Carrier’s costs in connection with any action taken by the Carrier under or in connection with this clause.
10.5 The parties agree that, to the extent permitted by the PPSA:
(a) sections 95, 118, 121(4), 125, 130, 132(3)(d), 132(4), 135, 142 and 143 of the PPSA do not apply (unless the Consignor is otherwise notified in writing by the Carrier); and
(b) any right to receive a notice, statement or verification statement under sections 129, 130, 132, 134,135 or 157 of the PPSA is waived.
- CARRIER’S CHARGES
11.1 The Carrier’s charges will be deemed fully earned on receipt of the Goods by the Carrier and are non-refundable in any event. The Consignor agrees to pay all sums due to the Carrier without any deduction, counterclaim or set-off.
11.2 In addition to any other charges contemplated under these conditions, the Consignor is liable to pay:
(a) any fuel levy imposed, which may be adjusted by the Carrier at any time on reasonable grounds to reflect fuel price movements;
(b) any additional costs arising from heavy or over-dimensional transport including costs associated with permits, escorts, pilots, equipment, bridge/road works and detours; and
(c) all charges imposed by Law.
11.3 The Carrier may charge the Consignor, in accordance with its schedule of rates, in respect of any delay in loading or unloading occurring other than from the default of the Carrier. Such permissible delay period will commence upon the Carrier reporting for loading or unloading. Labour to load or unload is the responsibility and expense of the Consignor or consignee.
11.4 If the Consignor instructs the Carrier that the Carrier’s charges will be paid by the consignee or any other third party and the consignee or third party does not pay the Carrier’s charges within seven days of the date of delivery or attempted delivery of the Goods, the Consignor must pay such charges.
- DANGEROUS GOODS
12.1 If the Carrier agrees to provide Services with respect to Dangerous Goods:
(a) such Goods must be accompanied by a written declaration disclosing the nature of such Goods; and
(b) the Consignor must comply with all Law with respect to Dangerous Goods, including the Australian Code for the Transport of Dangerous Goods by Road & Rail.
12.2 The Consignor will indemnify the Carrier against all loss, harm or injury howsoever caused arising out of the provision of Services with respect to any Dangerous Goods whether declared as such or not and whether or not the Consignor was aware of the nature of the Goods.
12.3 The indemnity in clause 12.2 extends to Consequential Loss.
12.4 If, in the opinion of the Carrier, acting reasonably, the Goods are or are liable to become of a dangerous or flammable or damaging nature and pose a threat of property damage or personal injury, the Goods may at any time be destroyed, disposed of, abandoned or rendered harmless without compensation to the Consignor and without prejudice to the Carrier’s right to charge for any Services.
- FORCE MAJEURE
The Carrier will not be liable for any failure or delay in performance of the Services if such failure or delay is due, in whole or in part, to any cause whatsoever beyond its control including due to Force Majeure.
- NOTIFICATION OF CLAIM
14.1 Notwithstanding any other provision of these conditions (other than clause 15), the Carrier will, in any event, be discharged from all liability whatsoever in respect of the Goods unless written notice of a claim or an intended claim (together with particulars of the circumstances on which the claim is based) is given to the Carrier within fourteen (14) days from the delivery of the Goods or from the date on which in the ordinary course of business, delivery would have been effected.
14.2 The Carrier will, in any event, be discharged from all liability whatsoever in respect of the Goods unless legal proceedings are commenced within twelve months of their delivery or of the date on which, in the ordinary course of business, they should have been delivered.
- APPLICABLE LEGISLATION
15.1 Notwithstanding anything contained in these conditions, the Carrier will continue to be subject to any implied terms, conditions, guarantees or warranties imposed by the Competition and Consumer Act 2010 (Cth) or any other Commonwealth or state legislation but only in so far as such legislation applies and prevents the exclusion or modification of any such term, condition, guarantee or warranty.
15.2 The Carrier, Consignor and consignee must comply with all Law, including Chain of Responsibility Law.
15.3 The Consignor must not impose any requirement on the Carrier that would directly or indirectly encourage or require the Carrier or any person on behalf of the Carrier to speed, drive while fatigued or otherwise perform the Services in an unsafe manner or in breach of Law.
- ENTIRE AGREEMENT
16.1 The entire agreement between the parties is contained in these conditions and there are no other understandings, representations or agreements between the parties that are not set out in these conditions.
16.2 The Carrier will 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 authorised officer of the Carrier.
17.1 This agreement will be construed in accordance with the Law in force in Queensland and the parties irrevocably and unconditionally submit to the non-exclusive jurisdiction of the courts of Queensland and courts entitled to hear appeals from those courts.
17.2 The failure of a party to take action to enforce its rights under any agreement incorporating these conditions or the granting of any time or indulgence will not be construed as a waiver of the provision nor as a waiver of the right of the party at a later time to enforce its rights under any agreement incorporating these conditions.
17.3 Where the Consignor or consignee comprise two or more persons, an agreement or obligation to be performed or observed by the Consignor or consignee binds those persons jointly and severally.
17.4 If any provision of these conditions is invalid, illegal or unenforceable, that provision will, to the extent that it is invalid, illegal or unenforceable, be treated as severed from this agreement, without affecting the validity and enforceability of the remaining provisions.