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1. In these Conditions:
"Carrier" means Couriers Express Services Pty Ltd ABN 33 063 649
730, its successors, assigns, servants and agents (and where the Company acts
as an agent, its principal) and shall, except where the contrary is expressed,
include Sub-contractors;
"Services" means the transport of Consignments including any incidental
storage thereof;
"Client" means the person or persons with whom the Carrier contracts
to provide the Services, and includes the Consignor;
"Goods" means such goods as may be transported by the Carrier for
the Client from time to time;
"Consignor" means such person as may be authorized by the Client
to dispatch Goods at its request;
"Consignment" means the Goods accepted from the Consignor together
with any containers and packaging supplied by or on behalf of the Consignor;
"Sub-contractors" means any person, firm or entity with whom the
Carrier may arrange for the cartage of the Consignment and any person who
is or shall be a servant, agent or sub-contractor of such person, firm or
entity.
2. Any obligation, responsibility or liability under this agreement which
relates to the Consignor is also an obligation, responsibility or liability
(as appropriate) of the Client, and the Client accepts primary responsibility
for any such obligation, responsibility or liability insofar as it is not
fully met by the Consignor. In the event of the Carrier having a right to
take legal action against the Consignor in relation to any matter arising
from this agreement or otherwise the Client agrees that such claim may also
be made directly against the Client in lieu of it being made against the Consignor,
or alternatively the Carrier has the right to hold the Client jointly liable
with the Consignor in relation to any action commenced against the Consignor.
3. This agreement is made under or deemed to be made under and subject to
the laws of the State of Victoria, and any proceedings against the carrier
shall only be brought in Victoria.
4. The Carrier is not a common carrier and accepts no liability as such. The
Carrier reserves the right to refuse the carriage of goods of any description
for any person firm or entity without giving explanation for such refusal.
All Consignments are carried and all storage and other services are performed
by the Carrier subject to these terms and conditions.
5. The Carrier excludes liability and responsibility in tort, contract and
otherwise in so far as may be consistent with and subject to the provisions
of the Trade Practices Act 1974 or similar or equivalent State Acts, for any
loss of and /or damage to or deterioration of Goods or mis-delivery or failure
to deliver or delay in delivery of Consignments including chilled, frozen,
refrigerated or perishable Goods either in storage or transit for any reason
whatsoever including but not limited to the neglect or willful act of the
Carrier or third parties. Should the provisions of the Trade Practices Act
1974 or similar or equivalent State Acts concerning implied warranties and
conditions apply to this agreement then the liability of the Carrier under
this agreement relating to such implied warranties and conditions is restricted
to the supply of the Services again or the payment of the reasonable costs
of having the Services supplied again.
6. The Carrier excludes liability and responsibility for loss, damage or injury
to any person, property or thing during or resulting from the performance
or purported performance of or want of performance or breach of this agreement
howsoever caused including but not limited to any negligence, recklessness
or wilfulness of the Carrier.
7. The Client agrees to free, release, hold harmless, indemnify and keep indemnified
the Carrier from all claims, liabilities, damages, costs and expenses arising
out of any matter whatsoever about any aspect of the Consignments or the carriage
or purported carriage of or storage or purported storage of or failure to
carry or store the Consignments or in any way arising out of an act or omission
or any breach of or failure by the Carrier to comply with any of its obligations
under this agreement and otherwise howsoever arising and whether such claims,
liabilities, damages, costs and expenses be direct or indirect consequential
or inconsequential past, present or future.
8. The Client hereby authorizes the Carrier to sub-contract the carriage of
Consignments hereunder and any such Sub-contractor, its servants or agents
and all persons who are or might be vicariously liable for the acts or omissions
of the Sub-contractor or its servants or agents shall have the benefit of
all the terms of this agreement and in particular clause 5, 6 and 7. The Client
accepts that the Carrier may be acting as an agent for the actual carrier
of the Consignments under this agreement .
9. The Carrier reserves to itself the determination of the mode of transport
and method of handling and storage to be used in the performance of this agreement.
10. The Carrier is authorized to deliver each Consignment at and to the address
given to the Carrier by the Consignor and it is expressly agreed that the
Carrier shall be taken to have delivered the Consignment in accordance with
this agreement if at that address it obtains from any person a legible printed
name or signature as receipt on a consignment note and/or run sheet for the
Consignment. If it appears to the Carrier that no person is in attendance
at the address given by the Consignor, the Carrier may leave the Consignment
at the said address, or at the discretion of the Carrier store the Consignment
and if the Consignment is stored by the Carrier the Consignor shall pay or
indemnify the Carrier for all costs and expenses incurred in or about such
storage and return of the Consignment to the Consignor. Failure to complete
a consignment note and/or run sheet will not violate the Carriers right to
charge for the delivery.
11. Consignments are accepted by the Carrier subject to the condition that
the Carrier accepts no responsibility for the collection of cash on delivery
or any other payments on behalf of the Consignor or any other person. When
Consignments are tendered by any person with instructions for the Carrier
to collect any such payments the Carrier will make its best efforts to do
so but shall not be bound by such instruction and responsibility will remain
with the Consignor for such collection.
12. The Consignor or Client as the case may be warrants that it is the owner
of the Consignment, the authorized agent for the owner of the Consignment
or in some other manner entitled to possess and part with the possession of
the Consignment the subject of this agreement and by entering into this agreement
the Consignor and Client accept these terms and conditions for the recipient
of the Consignment and/or for all other persons on whose behalf the Consignor
or Client is acting.
13. It is agreed that any person who delivers the Consignments for carriage
to the Carrier is authorized to do so and sign the consignment note and/or
run sheet.
14. The Carrier shall be entitled to its charges when the Consignments are
loaded and despatched from the Clients or Consignors' premises as appropriate.
The Client agrees that the Carrier shall be entitled to its proper charges
and costs (including any road tolls) incurred in the performances of this
agreement and the Carrier is expressly authorized to expend (at the Client's
cost) such sums as it may deem necessary in its sole discretion to preserve
the Consignment in the event of accident, delay or necessity.
15. The Consignor and Client warrant that they have complied with all laws,
both State and Federal, relating to the packaging, labelling, carriage and
delivery of Consignments and will disclose to the Carrier the contents of
each package or other Consignment container upon receipt by the Carrier of
the Consignments. The Client agrees to indemnify the Carrier in the event
that the Client or the Consignor fail to fully comply with the provisions
of this warranty, and loss or damage results from such failure to comply.
16. The Consignor and Client warrant that the Consignment is not and does
not contain explosive, flammable or dangerous goods and the Consignor and
Client indemnify the Carrier in respect of all liability of any nature occurring
in consequence or part consequence of the Consignor or Client's failure to
comply with this warranty.
17. In addition to any other rights of the Carrier it shall have a lien upon
the Consignments in its possession under this agreement for all monies payable
to it and if part of the Consignment has been delivered, removed or despatched
the Carrier shall have a lien upon the remainder of such Consignment for such
monies until paid to it.
18. Insofar as it may be permissible by law to do so if the Carrier's charges
in respect of any Consignments despatched with it or held by it shall be unpaid
for two years or the minimum period prescribed by law for the remedy of the
sale of the Consignment to be operative ( whichever shall be the lesser period
) the Carrier shall ( after sending a letter by post to the Consignor and/or
Client (at the Carrier's discretion)at its last known address giving one months
notice of the Carrier's intention to sell such Consignment or in the event
that no address of the Consignor or Client is known to the Carrier then one
month after giving notice in a public newspaper) have full power to open and
examine any part or the whole of the Consignment and to sell such Consignment
or any part thereof by public auction and after deducting the costs in connection
with the storage, notification and sale retain and apply the residue of the
proceeds of the sale in payment of or towards all charges payable by the Consignor
to the Carrier.
19. The Carrier's trading terms are payment within seven days from invoice
date. A discount (if any) applied to the Carriers' standard rate is deemed
to be forfeited if the invoice remains unpaid after seven days from the due
date. All collection costs including but not limited to legal costs on a solicitor/client
basis are payable by the Consignor in the event of failure to pay the Carriers
charges within a reasonable period.
20. The Consignor agrees to pay costs incurred by the Carrier, at such rate
as set by the Carrier from time to time, for any copies of documentation or
time spent in collating and delivering same although no warranty, either express
or implied, is given by the carrier that such documentation will exist or
has ever existed. No set-off or abatement or deduction is permitted in respect
of any of the charges or other monies due to the Carrier. The Carrier reserves
the right to vary its charges and trading terms and the notification of such
changes by ordinary surface mail to the client is deemed to be notice of the
variation. The Consignor agrees that to the extent that the Carrier is or
becomes liable to any GST pursuant to making a taxable supply under the A
New Tax System (Goods and Services Act) 1999, the Consignor will be liable
for that GST liability, and the Consignor must pay the Carrier for GST in
respect of the taxable supply within the trading terms provided by the Consignor
in the tax invoice relating to that taxable supply.
21. The Consignor or Client as the case may be acknowledges that the Carrier
has an agreement with its Sub-contractor and its staff and agents and warrants
to the Carrier that it will not cause or induce nor seek to cause or induce
the Sub-contractor or the Carrier's staff or agents to terminate their agreement
with the Carrier or offer any employment (whether directly or indirectly)
to the Sub-contractor or any member of the Carrier's staff or agents.
22. The Consignor or Client as the case may be also warrants that it will
not engage, employ or appoint the Sub-contractor, its staff or agents for
a period of 12 months subsequent to the termination of the agreement between
the Carrier and its Sub-contractor, staff or agents. In the event that this
clause is breached, the Consignor or Client agrees to pay to the Carrier a
sum equal to the previous 6 month's gross charges to the Client for Services
provided by the Carrier, or such other sum as the Carrier reasonably calculates
as liquidated damages for the breach (including the Client's legal costs on
a Solicitor/Client basis), without affecting the continued operation of any
other clauses in this agreement.
23. INSURANCE WILL NOT BE ARRANGED BY THE CARRIER. IT IS THE RESPONSIBILITY
OF THE CLIENT AND CONSIGNOR TO ENSURE THAT ADEQUATE INSURANCE COVER IS ARRANGED
IN VIEW OF THE APPLICATION OF ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT
UPON WHICH THE CARRIER ACCEPTS CONSIGNMENTS FOR CARRIAGE.
24. The Carrier will endeavour to arrange for insurance of Consignments in
transit as the Client's agent if the Client requests the Carrier to do so
in writing (in a form prescribed by the Carrier) and notifying the value of
the Consignment for the purposes of such insurance. The said insurance shall
be at the Client's expense both as to premium and as to the Carrier's administration
charges and in accordance with the conditions of insurance selected by the
Carrier with the insurer selected by the Carrier.
25. In entering into this agreement the Client and Consignor warrant that
they have conducted their own enquiries and relied on their own judgement
and not on any representation made by or on behalf of the Carrier and all
such representations are hereby excluded.
26. No waiver by the Carrier of any breach of any term of any agreement with
the Client shall be deemed to be a waiver of any subsequent breach of any
kind. Singular words shall include plural and vice versa.
27. The portion on the Account Application entitled "IMPORTANT NOTE"
is to be taken as a warning only and the provisions of that note shall not
be taken as limiting any other terms of this agreement, but simply an expression
of the intention of this agreement and the exclusions herein.
28. If any clause herein is or becomes void or illegal or unenforceable for
any reason then such clauses shall be rectified and read down in so far as
maybe possible so as to be valid and enforceable and to such extent as it
is not valid and enforceable shall be severed and omitted from these conditions
which shall otherwise remain in full force and effect.
29. No one clause shall limit the generality of any other clauses.
30. In the event that the Client or the Consignor uses or attempts to use
or issues or attempts to issue at any time any letters writings instructions
forms or delivery notes or the like containing any terms or provisions inconsistent
with these conditions then they shall not form part of any agreement with
the Client and these terms and conditions shall prevail.
31. These terms and conditions bind the Client and its executors administrators
successors and assigns.