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This page contains two distinct and separate
sets of proposed contract terms and conditions of service:
1. Terms
that are designed to form part of agreements which do NOT constitute a 'Consumer
Contract' for the purposes of the Fair Trading Act 1999 (Vic). Click Here
2. Terms that ARE designed
to form part of agreements which DO constitute a 'Consumer Contract' for the
purposes of the Fair Trading Act 1999 (Vic). (See Below – Please
Click here)
The
following terms are designed to form part of agreements which do NOT constitute
a 'Consumer Contract' for the purposes of the Fair Trading Act 1999 (Vic).
1.
Definitions
and Guarantees.
In this agreement
1a)
“Client” shall
mean the person who requests the Company to arrange for the carriage
of Goods or for the provision of other services
on its behalf . Where the Client is an incorporated body the
directors of the Client guarantee its performance. Where the Client
is not present during loading or unloading, the term Client shall
extend to the Client’s representative.
1b)
“Company” shall
mean the person whose name is printed on the face of the accompanying
quotation or other document or in the
absence thereof who is otherwise identified as the person with whom
the Client entered into a contract that incorporates these
Conditions.
1c)
“Contractor” shall
mean any person who has appointed the Company as agent to procure
orders for the carriage of goods or to find other work on behalf of
that person.
1d)
“Goods” shall
mean any goods, which the Client has requested to be carried or
arranged to have carried.
1e)
“Services” shall
mean any storage, pre-packing and any other services whatsoever that
the Client has requested the Company to
provide.
1f)
“Time rate” shall
be $30 per 15 minutes or part thereof as at 20 February 2009 and
adjusted annually with the CPI movement from
its level as at December 2008.
2.
Interpretations
and Governing Law.
2a)
Any
provision of this agreement which is capable of being interpreted as
being void, voidable, illegal or unenforceable, shall not be
so interpreted if at all possible, and shall otherwise be severed to
the minimum extent necessary with the remainder of the agreement
remaining in force.
2b)
All the
rights, immunities and limitations of liability in these conditions
of contract shall continue to have their full force and effect in
all circumstances, notwithstanding any breach (including fundamental
breach) of contract.
2c)
Unless
otherwise apparent from the context, singular words include the
plural and vice versa, words in any one gender include any
other gender and any reference to person includes both natural
persons and corporations.
2d)
Words in
italics are for guidance only and do not and shall not be deemed to
form part of this agreement.
2e)
This
agreement shall be governed by and interpreted and enforced in
accordance with the laws applicable in the Australian Capital
Territory. This agreement shall be deemed to have been entered into
in the Australian Capital Territory.
3.
Applicability
of these Conditions.
3a)
These
Conditions of Contract shall apply to any Contract for the carriage
of Goods (or the provision of other services) that was entered
into after being given a reasonable opportunity to view them on the
Company’s web site, booking on the Company’s website or
as a result of the acceptance of any quotation accompanied by these
Conditions. These Conditions shall also apply to any further such
contracts if they are entered into without reference to any other
conditions.
3b) The Client acknowledges that the
Company acts as agent for every Contractor referred to in these
conditions in procuring the Client’s business and
that the Company has disclosed that fact to the Client prior to the
Client entering into any contract.
3c)
By
entering into this contract the Client also accepts these Conditions
on behalf of all other persons on whose behalf they are acting.
3d)
Any term
of these conditions which limits the liability of the Company, also
extends to and enures for the benefit of its employees,agents,
contractors and sub-contractors and also to their employees, agents,
contractors and sub-contractors. For the purposes of this sub-clause,
the Company shall be deemed to be the agent or trustee of such
persons and such persons shall, to the extent necessary to give
effect to this sub-clause, be deemed to be parties to this agreement.
However this provision shall not be construed as imposing or implying
any additional liability on those persons to any person for any
reason.
4.
Variation
of Conditions.
Unless otherwise specified in this
agreement, these conditions can only be varied by mutual consent. The
consent of the Company for such a variation can only be
given in writing by a director, secretary or manager of the Company.
5.
The Company and the Contractor are NOT COMMON CARRIERS and
will accept
no liability as such. All
goods are carried subject only to the
Conditions that were agreed upon for the carriage of those goods and
the Company and the Contractor reserve the right to refuse to carry
any Goods.
6.
Terms
relating to the Nature and Ownership of Goods.
6a)
The Client
expressly warrants that the Client is either the owner or the
authorised agent of the owner of any Goods or property the subject
matter of this contract. If the Client is not the owner the Client
warrants that the Client has the authority to enter into this
contract.
6b)
Goods are
accepted by the Company on the condition that they comply with the
requirements of any applicable law relating to the
nature, condition and packaging of the Goods, and without limiting
the generality hereof:
i)
that the
Client notifies the Company whenever any Dangerous Goods Act or
similar legislation (“DGA”) applies to any Goods, and
guarantees that all requirements of such
laws have been met, and
ii)
that the
goods are fully described in writing on all relevant paperwork,
including their name and nature, and in the case of goods to
which a DGA applies, are accompanied by a consignment note that
complies with the Act.
6c)
Where in
the opinion of the Company any Goods are are unable or unsafe to be
loaded, unloaded or placed as requested due to
their nature, condition or location, or are dangerous, corrosive,
noxious, explosive, flammable, perishable or capable of attracting
vermin or pests the Company may refuse to carry or, if carriage has
commenced, take any action reasonable to dispose, destroy or
otherwise deal with the Goods at the expense of the Client and
without incurring any liability to the Client.
6d)
The Client
agrees to notify the Company in writing, prior to pickup, of any
Goods that are inherently fragile or of a nature or value that
is not readily apparent, and of any special precautions of which the
Company cannot reasonably be expected to be aware that should be
taken when carrying such Goods.
7.
Ongoing
17.5% Engagement Fee.
Where within 18 months of the Client
entering into a Contract governed by these Conditions the Client
engages the services of any Contractor introduced to the Client by
the Company, the CLIENT AGREES that in consideration of the Company
introducing the Contractor it will immediately pay to
the Company an engagement fee equal to 17.5% of any charges made by
the Contractor for such services.
8.
Charging
Methods.
8a)
Fixed price quotations to Clients are calculated on the basis of
information supplied by the Client as to the nature and quantity
of items to be moved and as to any difficulties in gaining access at
the pickup or delivery locations. The Client warrants that all
information that is reasonably necessary to assess the work involved
and to prepare a quotation for carrying out that work has been
accurately provided.
8b) If the information supplied by
the client regarding the nature or quantity of goods to be carried is
incorrect, inaccurate or
varied after a quotation has been given, the
Client acknowledges that the Company has satisfied its obligation
once those goods that fit the
Client’s description as to nature and quantity have been
carried. The Company may at its discretion agree to carry any
additional goods of the client if the Client agrees to pay an
additional charge calculated pro-rata, in accordance with the
variation in the specified quantity, volume or weight of the goods
and any variation in estimated loading and unloading times charged at
the time rate, however the Client acknowledges that it understands
that for operational or other reasons the Company may not be able to
carry all or any other goods of the Client.
8c)
Delays
and Cancellations. Where
the loading or unloading process is delayed by over 30 minutes due to
any factors outside the Company’s
control, an additional charge at the time rate shall apply. Where a
job is cancelled or postponed by the Client on or after the day
before pickup is due the Client agrees to pay:
i) 2 Hours at the “Time Rate”
if the Pickup address for a job is within 40 Km radius of a Capital
City, or; ii) Half of the quoted job charge plus any
time spent at pickup charged at the time rate with minimum charge of
2 hours for jobs with a Pickup address greater than a 40 Km radius
from a Capital City.
8d)
The Client
agrees to pay or reimburse to the Company any costs, fees and taxes
incurred in complying with Customs,
Quarantine,Import
or
Export
requirements.
These are not
included
in any quoted prices unless specifically stated in writing.
9.
Payment
Methods and Obligations.
9a)
Unless the
Client has arranged and the Company has agreed for the charges to be
invoiced to a pre-authorised credit account,
charges
are payable prior to completion of unloading for hourly rate jobs
and,
like
airline tickets,
on
or before pickup for all other jobs.
Storage charges are payable monthly in advance. Payment is required
in the form of cash, bank cheque,
Visa, Mastercard or non-reversible EFT showing the job number as
reference. Where a credit card has been provided, the client
expressly authorises any ongoing charges for storage and the like to
be charged to that card after they fall due.
9b)
The
Company hereby assigns its rights and the rights of any persons on
behalf of whom it is acting, to collect all charges and
payments from Clients to the Contractor. The Contractor agrees to
issue invoices and to collect all such charges and payments directly
from Clients.
9c)
In the
case of a credit account, whether pre-authorised or otherwise
established:
i)
The
Company shall invoice its charges on 14 day terms (unless otherwise
stated) together with any out of pocket expenses, accounting
fees and industry surcharges.
ii)
The Client
agrees that where the Company does not receive payment of any amount
charged to the credit account by the due
date, the Client will accept joint and several liability for any
outstanding amount together with any third party to whom the invoices
have been sent and will pay those charges within 7 days.
10.
Lien
on Goods until Payment is Received.
10a)
All goods
of the Client, or carried on behalf of the Client, that are received
by the Company shall be subject
to a general lien
for
any monies owed by the Client or the owner of the goods to the
Company or the Contractor as a result of this agreement or
any previous agreement between the Company and the Client or the
owner of the Goods.
10b)
In order
to exercise its rights under the aforementioned lien, the Company
shall have the right to seize or retain or to defer or
refuse delivery of any goods that are the subject of this lien should
circumstances arise that make it reasonable to conclude that the
Client is unwilling or unable to pay any due charges in the required
form or at the required place or time.
10c)
Where
the charges of the Company remain unpaid for a minimum period of 28
days, the Company may give 28 days written notice
by certified or registered mail to the last known address of the
Client of intention to sell. If the amount owing is not paid within
that further period the Company may open any packages, DISPOSE OF THE
GOODS or SELL ALL OR ANY OF THE GOODS by auction or by private treaty
at its absolute discretion. Out of any monies arising the Company may
retain its charges and all charges and expenses of the detention and
sale. It shall credit the surplus, if any, to the person entitled to
it. Any such sale shall not prejudice or affect any other rights that
the Company may have to recover any outstanding charges due or
payable in respect of such service or the said detention or sale.
11.
Terms
relating to the movement of Goods.
11a)
Movement
of incorrect goods. The
Client shall provide an authorised representative who will be
responsible for ensuring that the correct
goods are loaded. Whether or not such a representative is provided,
and WHETHER OR NOT the Client provided the Company with a LIST of
ITEMS to be moved, the Client shall pay all reasonable additional
charges whatsoever resulting from the movement of incorrect goods or
non-movement of goods that the Client intended to have moved.
11b)
If there is no-one in attendance at
the place for delivery of the Goods the Company shall be entitled at
its discretion to leave the Goods at that
place or to return at a later time until delivery is completed,
storing the Goods at any convenient place in the meantime, and the
Client agrees to pay any reasonable additional charges incurred
thereby to the Company.
11c)
The
method, route and time by which the carriage of Goods or provision of
services under this contract are performed shall
be at the absolute discretion of the Company.
11d)
The client
agrees to fully address all items prior to pickup and to prepare
whatever paperwork, lists, itemised inventories or
consignment notes that it requires in order to substantiate proof of
pickup.
12.
Trade
Practices Act.
12a)
Nothing in
this agreement shall be construed as having the effect of in any way
excluding, restricting or modifying any warranty
express or implied by virtue of the provisions of the Trade Practices
Act (1974) as amended.
12b)
Where this
contract is for the provision of services for the purposes of a
business, trade, profession or occupation in which the
Client is engaged, any liability for negligence shall be limited to
$100 per package or carton and total of $1000 per consignment.
14.
Responsibility
for Losses and Damages.
14a)
All quoted
prices are for the performance of the work specified in accordance
with the Warranties implied by the Trade Practices
Act 1974.
14b)
The Client
recognises that there are always risks involved in the movement of
any Goods or the provision of services under this
contract, many of which are outside the Company’s or the
Client’s control. All basic quoted prices are for the provision
of carriage and other services whereby the Client understands and
accepts that there are such risks, accepts any financial detriment or
other losses that may result from the performance or non-performance
of such work and agrees that the Company
shall NOT be responsible or liable
for such losses. The effect of this sub-clause may be varied where
the Client chooses a Transit Protection option. (See
Clause 16) or where it is otherwise agreed in writing.
14c)
Save as
expressly provided in these conditions the Company shall not be
liable to the Client for any loss or damage suffered by
the Client directly or indirectly caused by:
i)
any damage
loss or destruction to
Goods whilst
in the possession of the Company whether
in transit (which
includes, amongst
other things, any packing, handling, installation, removal, assembly
or erection), or in
storage,
or after they have been delivered
or mis-delivered;
ii)
a
mis-delivery, delay in pickup or delivery, or non-delivery of Goods;
iii)
the
carriage of Goods by a route other than the shortest or usual route;
iv)
any
failure to collect Cash on Delivery (COD) on behalf of the Client;
and 14(c)(iv) shall apply whether or not any such occurrence was due
to any willful, fraudulent negligent or other act or omission of the
Company.
14d)
For the
purpose of clause 14, “loss or damage” shall include all
or any direct or consequential loss or damage to the Client
whatsoever and howsoever arising and
without limiting the generality of the foregoing includes loss of
profits, liabilities of the Client to third parties (whether actual
or contingent) the cost of repair or replacement of Goods and the
cost of collecting and redelivering Goods.
14e)
The
reference in clause 14 to damage or to loss and destruction of goods
shall include damage loss or destruction caused by:
i)
fire,
overturning, collision road or rail accident involving the conveying
vehicle,
ii)
theft or
flood, or;
iii)
mishandling,
incorrect loading or unloading or stowage of any vehicle, the method
by which it is driven or through any
other cause whatsoever.
14f)
The Client
shall INDEMNIFY the Company against any action, claim, suit, fine or
demand brought by any third party, the Client
or the Contractor against the Company as a result of or in connection
with any breach by the Client of any term of this contract or the
occurrence of any of the events listed in this clause or clauses 10,
12 or 14 and this indemnity shall extend to the reasonable solicitor
client costs of the Company in defending any action and in enforcing
this indemnity.
15.
Valuation
of goods.
15a)
Where it
is necessary to value any goods, the following principles shall be
applied and used for determining the current market
value of those goods unless there is clear evidence to the contrary:
i)
Items less
than 5 years old shall be depreciated from their purchase price (or
if this cannot be ascertained, a reasonable estimate
of the purchase price) to account for the reduction in their value
for age, condition, wear & tear, on the basis of the
diminishing
value method from the date of purchase or acquisition at the rate of
20% per annum. eg:
Item is purchased 4 years ago
for $1000. Depreciated value at 20% is $1000 x0.8x0.8x0.8x0.8 = $409.
ii)
Items over
5 years old shall be valued at 25% of the current market value of a
new item of similar type and function at the time
of commencement of this contract.
15b)
Valuations
obtained in accordance with Clauses 15 a) shall be subject to the
following maximum values:
i)
The value
of the contents of individual cartons, bags, packages or containers
of any type with a value of over $250 are deemed
to be limited to a maximum of $250 unless the client notifies the
company in writing of a higher value prior to pickup.
ii)
The
value of all other items, shall be deemed to be limited to a maximum
of $1500 per item unless the client notifies the company
in writing of an alternate value prior to pickup.
15c)
Nothing in
this clause shall operate in any way to extend the liability of the
Company or to vary clauses 12, 14 or 16.
15d)
Dispute
Resolution: Where
for the purposes of this agreement a Party disagrees with any
valuation of goods that has been carried
out in accordance with clause 15 a), that party may within 28 days
supply any clear evidence of an alternate valuation and the matter
shall then be re-assessed by a Director or Manager of the Company
within a further 28 day period.
16.
Claims
and Transit Protection Options.
16a)
Where the
Client agrees to make an additional payment in accordance with one or
more of the Transit Protection (hereafter “TP”)
options offered by the Company, the Company agrees to accept an
increased level of responsibility for damage, loss or destruction
of the goods, in the event of some or all of the occurrences listed
in clause 14 (e).
16b)
The effect
on this Contract of the Client selecting a Transit Protection option
will depend upon the option selected, as follows:
i)
For fire, overturning or collision Transit Protection,
sub-clause 14 (e)(i) shall not apply to this agreement.
ii)
For fire, overturning, collision and theft Transit Protection,
sub-clauses 14 (e)(i) and (ii) shall not apply to this agreement.
iii)
For All-risk Transit Protection,
sub-clauses 14 (e)(i),(ii) and (iii) shall not apply to this
agreement.
iv)
For Top Cover Transit Protection,
sub-clauses 14 (e)(i),(ii) and (iii) and 16(e)(v) shall not apply to
this agreement and the amount of $100 in
16(e)(ii) shall be varied to $20. provided those goods can be
reasonably identified from the list that formed the basis of the
quotation,as being those that were contracted to be carried.
16c)
Time
Limit. In
the event of a claim or potential claim:
If a delivery of goods
is not made due to loss or total destruction of the goods, the Client
agrees to notify the Company in writing of any claims or potential
claims within 28 days of the Client becoming aware of the event that
caused the damage, loss or destruction of the Goods. In all other
cases the Client agrees to notify the Company in writing of any
claims or potential claims within 7 days of the receipt of the goods.
Any claim forms sent by the Company to the Client shall be completed
and returned to the Company with 8 weeks from the date when they are
sent.
16d)
In the
event of a claim for loss or damage or destruction, any
indemnity or
damages that the Company or the Contractor shall
pay to the Client shall be calculated as follows:
i)
In the
event of total loss or destruction: The current market value of the
item (calculated in accordance with clause 15)
ii)
In
the event of partial loss or damage: An allowance for the reduction
in value of the item, or
the
reasonable costs of repair or
restoration, or the current market value of the item (calculated in
accordance with clause 15); whichever is the lower amount. In the
alternative, the Company may at its discretion choose to arrange for
the repair of any damaged items at a repairer of its choice.
iii)
Where
applicable, this indemnity or other payment shall be subject to the
limitations in clause 16(e)
iv)
The
Company shall not pay on the basis of replacement value of “new
for old”.
16e)
Unless
otherwise agreed in writing, the
following LIMITATIONS are applicable to Transit Protection Options:
i)
Any
liability resulting from the acceptance of an increased level of
responsibility relating to antiques, jewelery, collections,
documents, works of art and the contents
of individual cartons, bags, packages or containers of any type with
a value of over $250 is limited to $250; or $500 if nominated in
writing prior to pickup and any liability for other items is limited
to $1500 per item or $4000 if nominated in writing prior to pickup.
ii)
The first
$100 of any claim shall be payable by the Client and the maximum
amount claimable where not otherwise specified by
the terms of this agreement shall be $50,000 per conveyance or
occurrence.
iii)
Any
increased responsibility accepted for pairs or sets of items is
limited to the repair or replacement of the lost or damaged part
without reference to any special value that such item may have as
part of such pair or set.
iv)
The
increased level of responsibility does not extend to plants, animals,
accidental damage to the contents of self-packed cartons.
v)
The
increased level of responsibility does not extend to electrical or
internal derangement or failure of electrical or electronic goods,
instruments or machinery.
vi)
The
increased level of responsibility does not extend to loss or damage
due to the nature, characteristics or inherent vice of any
item making it susceptible to damage as a result of normal transit
handling, road trauma or atmospheric conditions.
vii)
Averaging: Where
the amount paid to the Company for accepting an increased level of
responsibility is based on a valuation of
the consignment that
is less than the current market value of the consignment,
then any compensation for damage, loss or destruction will be made
only in
the same reduced proportion.
For
example:
Your goods have a current market value of
$10,000. You take the transit protection option based on a $4,000
current market value (ie: 40% of the real current market value of
your goods). Now assume that there is water damage due to flooding
en-route to a bed with a current market value of $1000. You will
receive only $400; ie: 40% of $1,000. To get the full $1000, you
would need to have paid the higher transit protection rate applicable
to a $10,000 consignment value. A $100 excess also applies, making
the final payout $300.
viii)
The
Company
does not accept an increased level of responsibility whilst goods are
in storage,
other than storage required as part of the
normal transit process.
16f)
Except as
provided in this clause, nothing in this clause shall operate in any
way to extend the liability of the Company or to
vary clauses 12 or 14.
16g)
Fraud or
attempted fraud shall void our acceptance of an increased level of
responsibility and all attendant legal or other consequences.
The
following terms are designed to form part of agreements which constitute a 'Consumer
Contract' for the
purposes of the Fair Trading Act 1999 (Vic).
Preamble
The following terms are designed to form part
of agreements which constitute a Consumer Contract to the purposes of the Fair
Trading Act 1999 (Vic). These are agreements for the supply of local, intrastate,
and interstate removalist services for personal property including furniture,
household goods, baggage, and personal effects, being services of the kind ordinarily
acquired for personal, domestic or household use or consumption for the purposes
of their ordinary personal domestic or household use or consumption.
If
you are viewing these words on a website, these words do not form part
of such a Consumer Contract because they may not be printed in a minimum
10 point font as required by s163 of the Victorian Fair Trading Act. Justice
Harbison in Victoria, has declared that this means words that are “typed
by keyboard strokes onto an internet web page” (as she described the process
of making this web page appear on your screen right now) must be in 10 point
font as well.
So if the Victorian Fair Trading Act 1999 applies,
you will have to open up your email reader, save the pdf copy that is attached,
somehow get it to a computer that has a working printer, make sure it is all
set up to print in at least 10 point font, print it out on 4 or 5 pages and
then read it in hard copy even if you now read the same words here.
However
you can still continue with the booking process now if you like.
Offers to make a booking are not be accepted until after they have received
a final review – approximately 1 hours after you click submit. You can
withdraw any offer in the meantime – after reading the emailed Service
Terms or for any other reason -by sending an email or calling to cancel it.
And one more thing ! We don't know whether any
particular jobs we quote on will be covered by those laws or not. If our quote
is for business or trade purposes it clearly seems not to be. If it is for a
movement with no connection with Victoria – who knows !! Victoria seems
to be saying its Laws apply anywhere. If there is ever a dispute we will all
have to live with not knowing what the contract terms really are until a a court
or tribunal has decided. If you as a client, want more certainty you are quite
welcome to write your own contract and negotiate the terms with us, ensuring
of course that it complies with the Fair Trading Act 1999 (Vic) if that is applicable.
Terms
of Service
1. Definitions and Guarantees.
In this agreement
1a) “Client” shall mean
the person who requests the Company to arrange for the carriage of
Goods or for the provision of other services on its behalf . Where
the Client is an incorporated body the directors of the Client
guarantee its performance. Where the Client is not present during
loading or unloading, the term Client shall extend to the Client’s
representative.
1b) “Company” shall mean
the person whose name is printed on the face of the accompanying
quotation or other document or in the absence thereof who is
otherwise identified as the person with whom the Client entered into
a contract that incorporates these
Conditions.
1c) “Contractor” shall
mean any person who has appointed the Company as agent to procure
orders for the carriage of goods or to find any other work on behalf
of that person.
1d) “Goods” shall mean
any goods which the Client has requested to be carried or arranged to
have carried.
1e) “Services” shall mean
any storage, pre-packing and any other services whatsoever that the
Client has requested the Company to provide.
1f) “Time rate” shall be
$30 per 15 minutes or part thereof as at 20 February 2009 and
adjusted annually with the CPI movement from its level
as at December 2008.
2. Interpretation.
2a) Any provision of this agreement which is capable
of being interpreted as being void, voidable, illegal or unenforceable, shall
not be so interpreted if at all possible, and shall otherwise be
severed to the minimum extent necessary with the remainder of the agreement
remaining in force.
2b) All the rights, immunities and
limitations of liability in these conditions of contract shall
continue to have their full force and effect in all
circumstances, notwithstanding any breach (including fundamental
breach) of contract.
2c) Unless otherwise
apparent from the context, singular words include the plural and vice
versa, words in any one gender includeany other gender and any
reference to person includes both natural persons and corporations.
2d) Words in italics are for guidance
only and do not and shall not be deemed to form part of this
agreement.
3. Applicability of these Conditions.
3a) These Conditions of Contract
shall apply to any Contract for the carriage of Goods (or the
provision of other services) that was entered
into after the acceptance of any quotation accompanied by these
Conditions, subject always to any amendments or alterations agreed to
in writing by the parties at any time after the preparation of the
quotation. These Conditions shall also apply to any further
such contracts if they are entered into without reference to any
other conditions.
3b) The Client acknowledges that the
Company acts as agent for any Contractor referred to in these
conditions in procuring the
Client’s business and that the Company has disclosed that fact
to the Client prior to the Client entering into any contract.
3c) By entering into this contract
the Client also accepts these Conditions on behalf of all other
persons on whose behalf they are acting.
3d) Any term of these conditions
which limits the liability of the Company, also extends to and enures
for the benefit of its employees, agents,
contractors and sub-contractors and also to their employees,
contractors, sub contractors or agents. For the purposes of this
sub-clause, the Company shall be deemed to be the agent or trustee of
such persons and such persons shall, to the extent necessary to give
effect to this sub-clause,be deemed to be parties to this agreement.
However this provision shall not be construed as imposing or implying
any additional liability on those persons to any person for any
reason.
4. Variation of Conditions.
Unless otherwise specified in this
agreement, these conditions can only be varied by mutual consent. The
consent of the Company for such a variation can only be
given in writing by a director, secretary or manager of the Company.
5. The Company and the Contractor are
NOT COMMON CARRIERS and will accept no liability as such. All goods
are carried subject only to the Conditions that were
agreed upon for the carriage of those goods and the Company and the
Contractor reserve the right to refuse to carry any Goods.
6. Terms relating to the Nature and
Ownership of Goods.
Unless otherwise agreed:
6a) The Client expressly warrants
that the Client is either the owner or the authorised agent of the
owner of any Goods or property the subject matter of
this contract. If the Client is not the owner the Client warrants
that the Client has the authority to enter into this contract.
6b) Goods are accepted by the Company
on the condition that they comply with the requirements of any
applicable law relating to the nature, condition and
packaging of the Goods, and without limiting the generality hereof:
i) that the Client notifies the
Company whenever any Dangerous Goods Act or similar legislation
(“DGA”) applies to any Goods, and guarantees
that all requirements of such laws have been met, and
ii) that the goods are fully
described in writing on all relevant paperwork, including their name
and nature, and in the case of goods to which a DGA
applies, are accompanied by a consignment note that complies with the
Act.
6c) Where in the opinion of the
Company any Goods are are unable or unsafe to be loaded, unloaded or
placed as requested due to their nature, condition or
location, or are dangerous, corrosive, noxious, explosive, flammable,
perishable or capable of attracting vermin or pests the Company may
refuse to carry or, if carriage has commenced, take any action
reasonable to dispose, destroy or otherwise deal with the Goods at
the expense of the Client and without incurring any liability to the
Client.
6d) The Client agrees to notify the
Company in writing, prior to pickup, of any Goods that are inherently
fragile or of a nature or value that is not readily
apparent, and of any special precautions of which the Company cannot
reasonably be expected to be aware that should be taken when carrying
such Goods.
7. Ongoing 17.5% Engagement Fee.
Unless otherwise agreed: Where
within 18 months of the Client entering into a Contract governed by
these Conditions the Client engages the services of any Contractor
introduced to the Client by the Company, the CLIENT AGREES that in
consideration of the Company introducing the Contractor it will
immediately pay to the Company an engagement fee equal to 17.5% of
any charges made by the Contractor for such services.
8. Charging Methods.
Unless otherwise agreed:
8
a) Basis of
Quotations:
For fixed price jobs the Client's description of the items to be carried, difficulties
that may be encountered in gaining access at pickup and delivery,
and the Client's availability at the pickup and delivery locations
at the times that the Company plans to pick up and deliver the
goods are critical to the quoted price.
8 b) The failure to provide accurate
information about the items to be carried may have consequences that
include:
i) That there is no room on the
collecting vehicle for all of the Clients goods,
ii)
That even if there is room, that room may not be available for the
Client (unless the Client has expressly booked the vehicle on an
'exclusive use' basis), as that space may have been pre-booked by
other Clients, and
iii) That there may be no time to
complete the Client's pick up or delivery at the time allocated.
8 c) A reasonable additional fee
shall be payable if the Client's goods do not match the Client's
description of the items to be carried, if the access issues have
been mis-described or if the Client is not available when the Company
plans to pickup and deliver the goods. The Client should be aware
that in the case there being additional or mis-described items and
the occurrence of any of the events listed in 8 b) those factors may
well justify as reasonable the charging of a relatively high fee to
properly reflect the difficulties involved in a change to the
description or number of goods to be transported.
8d) Delays and Cancellations. Where
the loading or unloading process is delayed by over 30 minutes due to
any factors outside
the Company’s control, an additional charge at the time rate
shall apply. Where a job is cancelled or postponed by the Client on
or after the day before pickup is due, the Client agrees to pay half
of the quoted job charge plus any time spent at pickup charged at the
time rate with minimum charge of 2 hours.
8 e) The Client agrees to pay or
reimburse to the Company any costs, fees and taxes incurred in
complying with Customs, Quarantine, Import or Export
requirements. These are not included in any quoted prices unless
specifically stated in writing.
9. Payment Methods and Obligations.
Unless otherwise agreed:
9a) Unless the Client has arranged
and the Company has agreed for the charges to be invoiced to a
pre-authorised credit account, charges are payable prior
to completion of unloading for hourly rate jobs and, like airline
tickets, on or before pickup for all other jobs. Storage charges are
payable monthly in advance. Payment is required in the form of cash,
bank cheque, Visa, Mastercard or non-reversible EFT showing the job
number as reference. Where a credit card has been provided, the
client expressly authorises any ongoing charges for storage and the
like to be charged to that card after they fall due.
9c) In the case of a credit account,
whether pre-authorised or otherwise established:
i) The Company shall invoice its
charges on 14 day terms together with any out of pocket expenses,
accounting fees and industry surcharges.
ii) The Client agrees that where the
Company does not receive payment of any amount charged to the credit
account by the due date, the Client will accept joint
and several liability for any outstanding amount together with any
third party to whom the invoices have been sent and will pay those
charges within 7 days.
10. Lien on Goods until Payment is
Received.
Unless otherwise agreed:
Any Goods
received by the Company shall be subject to a general lien for any moneys due
by the Client to the Company for any services provided under this or any other
agreement. If any such amounts have been outstanding for a period of 6 calendar
months or more, the Company may give 28 days' written notice to the Client of
intention to sell, and if the amount owing is not paid by
the end of that period, the Company may SELL ALL OR ANY OF THE GOODS by public
auction or, if that is not reasonably practicable, by private treaty and apply
the net proceeds towards reducing the amount due. Furthermore
this clause shall have no effect on any other rights which the Company may have
under this contract or otherwise at law.
11. Terms relating to the movement of
Goods.
Unless otherwise agreed:
11a)
The Client
agrees to fully address all items prior to pickup and to prepare
whatever paperwork, lists, itemised inventories or
consignment notes that the Client requires in order to substantiate
proof of pickup.
11b) Movement of incorrect goods. The
Client shall provide an authorised representative who will be
responsible for ensuring that
the correct goods are loaded unless the Goods are being loaded from
storage. Whether or not such a representative is provided, and
WHETHER OR NOT the Client provided the Company with a LIST of ITEMS
to be moved, the Client shall pay all reasonable additional charges
whatsoever resulting from the movement of incorrect goods or
non-movement of goods that the Client intended to have moved if
the Client is responsible for the incorrect movement or
non-movement.
11 c) In the case of all long
distance, interstate or overseas jobs the the Client will be advised
of a planned delivery by telephone or text message or as otherwise
agreed on the day before delivery is scheduled and again between
approximately 30 minutes and 2 hours before delivery is due.
11d) If there is no-one in attendance
at the place for delivery of the Goods the Company shall at the
Client's request leave the Goods at that place and
otherwise return at a later time until delivery is completed, storing
the Goods at any convenient place in the meantime, and the Client
agrees to pay any reasonable additional charges incurred thereby to
the Company.
11e) The method and
route by which the carriage of Goods or provision of services under
this contract are performed shall be at the absolute discretion of
the Company.
12. Trade Practices Act.
12a) Nothing in this agreement shall
be construed as having the effect of in any way excluding,
restricting or modifying any warranty express or implied
by virtue of the provisions of the Cth Trade Practices Act (1974) as
amended.
12b) Where this contract is for the
provision of services for the purposes of a business, trade,
profession or occupation in which the Client is engaged,
any liability for negligence or breach of contract shall be limited
to $100 per package or carton and total of $1000 per consignment.
14. Responsibility for Losses and
Damages.
Unless otherwise agreed:
14
a) All basic quoted prices include the performance of any
specified work and the provision of any carriage or other services
or products in accordance with the Warranties implied by the Cth
Trade Practices Act 1974 and the Fair Trading Act (Vic) 1999.
Nevertheless, the Client is warned
that there are always risks involved in the movement of any Goods or
the provision of services under this contract, many of
which are outside the Company’s or the Client’s control.
The greater the distance involved the longer the exposure to risk and
the greater the chance of damage, loss or other unforeseen mishap.
In entering into this contract, the
Client understands and accepts that there are such risks, accepts
that a financial detriment or other loss may result from the
performance or non-performance of such work and agrees that the
Company shall NOT be responsible or liable for such losses in
circumstances that are beyond its control.
14
b) Subject to 14(a) the
Company shall not be liable to the Client for any accidental loss or
damage suffered by the Client directly or indirectly caused by:
i) any damage loss or destruction to
Goods whilst in the possession of the Company whether in transit
(which includes, amongst other things, any packing,
handling, installation, removal, assembly or erection), or in
storage, or after they have been delivered or mis-delivered,
ii) a mis-delivery, delay in pickup
or delivery, or non-delivery of Goods or
iii)
the carriage of Goods by a route other than the shortest or usual
route, where
such loss or damage occurs in circumstances that are beyond th
Company's control, unless the effect of this sub-clause has been
varied by the Client choosing a Transit Protection option. (See
Clause 16) or where it is otherwise agreed in writing.
14d) For the purpose of clause 14,
“loss or damage” shall include all or any direct or
consequential loss or damage to the Client whatsoever
and howsoever arising and without limiting the generality of the
foregoing includes loss of profits, liabilities of the Client to
third parties (whether actual or contingent) the cost of repair or
replacement of Goods and the cost of collecting and redelivering
Goods.
14e) The reference in clause 14 to
damage or to loss and destruction of goods shall include damage loss
or destruction caused by:
i) fire, overturning, collision road
or rail accident involving the conveying vehicle,
ii) theft or flood, or;
iii) mishandling, incorrect loading
or unloading or stowage of any vehicle, the method by which it is
driven or through any
other cause whatsoever.
15. Valuation of goods.
Unless otherwise agreed:
15a) Where it is necessary to value
any goods, the following principles shall be applied and used for
determining the current market value of those goods
unless there is clear evidence to the contrary:
i) Items less than 5 years old shall
be depreciated from their purchase price (or if this cannot be
ascertained, a reasonable estimate of the purchase
price) to account for the reduction in their value for age,
condition, wear & tear, on the basis of the diminishing value
method from the date of purchase or acquisition at the rate of 20%
per annum. eg: Item is purchased 4 years ago for $1000. Depreciated
value at 20% is $1000 x0.8x0.8x0.8x0.8 = $409.
ii) Items over 5 years old shall be
valued at 25% of the current market value of a new item of similar
type and function at the time of commencement of this
contract.
15b) Valuations obtained in
accordance with Clauses 15 a) shall be subject to the following
maximum values:
i) The value of the contents of
individual cartons, bags, packages or containers of any type with a
value of over $250 are deemed to be limited to a maximum
of $250 unless the client notifies the company in writing of a higher
value prior to pickup.
ii) The value of all other items,
shall be deemed to be limited to a maximum of $1500 per item unless
the client notifies the company in writing of an
alternate value prior to pickup.
15c) Nothing in this clause shall
operate in any way to extend the liability of the Company or to vary
clauses 12, 14 or 16.
15d) Dispute Resolution: Where for
the purposes of this agreement a Party disagrees with any valuation
of goods that has been carried out in accordance with
clause 15 a), that party may within 28 days supply any clear evidence
of an alternate valuation and the matter shall then be re-assessed by
a Director or Manager of the Company within a further 28 day period.
16. Claims and Transit Protection
Options.
Unless otherwise agreed:
16a) Where the Client agrees to make
an additional payment in accordance with one or more of the Transit
Protection (hereafter “TP”) options offered
by the Company, the Company agrees to accept an increased level of
responsibility for damage, loss or destruction of the goods, in the
event of some or all of the occurrences listed in clause 14 (e).
16b) The effect on this Contract of
the Client selecting a Transit Protection option will depend upon the
option selected, as follows:
i) For fire, overturning or collision
Transit Protection, sub-clause 14 (e)(i) shall not apply to this
agreement.
ii) For fire, overturning, collision
and theft Transit Protection, sub-clauses 14 (e)(i) and (ii) shall
not apply to this agreement.
iii) For All-risk Transit Protection,
sub-clauses 14 (e)(i),(ii) and (iii) shall not apply to this
agreement.
iv) For Top Cover Transit Protection,
sub-clauses 14 (e)(i),(ii) and (iii) and 16(e)(v) shall not apply to
this agreement and the amount of $100 in 16(e)(ii) shall
be varied to $20.
provided those goods can be
reasonably identified from the list that formed the basis of the
quotation,as being those that were contracted to be
carried.
16c) Time Limit. In the event of a
claim or potential claim:
If a delivery of goods is not made
due to loss or total destruction of the goods, the Client agrees to
notify the Company in writing of any claims or potential
claims within 28 days of the Client becoming aware of the event that
caused the damage, loss or destruction of the Goods. In all other
cases the Client agrees to notify the Company in writing of any
claims or potential claims within 7 days of the receipt of the goods.
Any claim forms sent by the Company to the Client shall be completed
and returned to the Company with 8 weeks from the date when they are
sent.
16d) In the event of a claim for loss
or damage or destruction, any indemnity or damages that the Company
or the Contractor shall pay to the Client shall be
calculated as follows:
i) In the event of total loss or
destruction: The current market value of the item (calculated in
accordance with clause 15)
ii) In the event of partial loss or
damage: An allowance for the reduction in value of the item, or the
reasonable costs of repair or restoration, or the
current market value of the item (calculated in accordance with
clause 15); whichever is the lower amount. In the alternative, the
Company may at its discretion choose to arrange for the repair of any
damaged items at a repairer of its choice.
iii) Where applicable, this indemnity
or other payment shall be subject to the limitations in clause 16(e)
iv) The Company shall not pay on the
basis of replacement value of “new for old”.
16e) Unless otherwise agreed in
writing, the following LIMITATIONS are applicable to Transit
Protection Options:
i) Any liability resulting from the
acceptance of an increased level of responsibility relating to
antiques, jewelery, collections, documents, works of art
and the contents of individual cartons, bags, packages or containers
of any type with a value of over $250 is limited to $250; or $500 if
nominated in writing prior to pickup and any liability for other
items is limited to $1500 per item or $4000 if nominated in writing
prior to pickup.
ii) The first $100 of any claim shall
be payable by the Client and the maximum amount claimable where not
otherwise specified by the terms of this agreement shall
be $50,000 per conveyance or occurrence.
iii) Any increased responsibility
accepted for pairs or sets of items is limited to the repair or
replacement of the lost or damaged part without
reference to any special value that such item may have as part of
such pair or set.
iv) The increased level of
responsibility does not extend to plants, animals, accidental damage
to the contents of self-packed cartons.
v) The increased level of
responsibility does not extend to electrical or internal derangement
or failure of electrical or electronic goods,
instruments or machinery.
vi) The increased level of
responsibility does not extend to loss or damage due to the nature,
characteristics or inherent vice of any item making it
susceptible to damage as a result of normal transit handling, road
trauma or atmospheric conditions.
vii) Averaging: Where the amount paid
to the Company for accepting an increased level of responsibility is
based on a valuation of the consignment that is less
than the current market value of the consignment, then any
compensation for damage, loss or destruction will be made only in the
same reduced proportion. For example: Your goods have a current
market value of $10,000. You take the transit protection option based
on a $4,000 current market value (ie: 40% of the real current market
value of your goods). Now assume that there is water damage due to
flooding en-route to a bed with a current market value of $1000. You
will receive only $400; ie: 40% of $1,000. To get the full $1000, you
would need to have paid the higher transit protection rate applicable
to a $10,000 consignment value. A $100 excess also applies, making
the final payout $300.
viii) The Company does not accept an
increased level of responsibility whilst goods are in storage, other
than storage required as part of the normal transit
process.
16f) Except as provided in this
clause, nothing in this clause shall operate in any way to extend the
liability of the Company or to vary clauses 12 or 14.
16g) Fraud or attempted fraud shall
void our acceptance of an increased level of responsibility and all
attendant legal or other consequences.
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