Terms & Conditions

These terms and conditions apply to the provision of transport and associated services by Yapo Top Tray Transport Pty Ltd ACN 168 760 192 (Carrier) to the customer described in the Quote or Order (as applicable) (Customer).

1.      Definitions and interpretation:

Agreement means an agreement for the provision of Services by the Carrier to the Customer formed pursuant to clause 3 and incorporating the Quote or an Order which is accepted in writing by the Carrier (as applicable) and these terms and conditions.

ACL means Australian Consumer Law in Schedule 2 of the Competition and Consumer Act 2010 (Cth).

Carriage means carriage by vehicles and conveyances of all kinds including acts in furtherance of an act of carriage by another or a specific means, whether by air, sea or land transport and includes the loading and unloading of the Goods and any part of the Carriage performed by Sub-contractors.

Carrier means Yapo Top Tray Transport Pty Ltd ACN 168 760 192;

Chain of Responsibility means the legal liability that applies to all relevant parties under the Heavy Vehicle National Law and applicable regulations passed by each of the states and territories in Australia.

Charges mean the charges payable by the Customer to the Carrier in respect of the provision of the Services, calculated in accordance with the Rates.

Consequential Loss means indirect, incidental, special or consequential loss or damage (including, but not limited to loss of revenue or profit, loss of use, loss of production, loss of business, loss of reputation, loss of goodwill and loss of anticipated savings and any other indirect, remote, abnormal or unforeseeable loss, whether or not in the reasonable contemplation of the parties at the time of agreeing to these conditions or the provision of any Services).

Container(s) includes any container, reefer, trailer, tilt, loader wagon, transportable tank, flat pallet, frame or any other unit, load, device used to consolidate package or store Goods.

Customer means, the customer named in the Quote or Order (as applicable).

Dangerous Goods means any Goods which are, or may become, hazardous, volatile, explosive, flammable, radioactive, likely to harbour or encourage vermin or pests, or capable of posing a risk or causing damage to any person or property.

Force Majeure means an event beyond the reasonable control of the party claiming Force Majeure including, but not limited to, strikes, industrial disputes, storm, fire, flood, act of God, war, insurrection, vandalism, sabotage, invasion, riot, national emergency, piracy, hijack, acts of terrorism, embargoes or restraints, pandemic, epidemic, extreme weather or traffic conditions, temporary closure of roads, order or other act of any government or governmental agency.

Goods means the goods (including packaging, pallets or containers) the subject of the Services.

GST has the same meaning as under the GST Law and means the Goods and Services Tax imposed under the GST Law.

GST Law means the A New Tax Systems (Goods and Services Tax) Act 1999 (Cth).

Heavy Vehicle National Law means any Laws in force in Australia that address Chain of Responsibility requirements, driver fatigue, mass, dimension or loading requirements, speeding, maintenance of equipment, safety and accreditation in the context of heavy vehicle regulation, including the Heavy Vehicle National Law (Victoria), as defined by the Heavy Vehicle National Law Application Act 2013 (Vic), and any regulations made under these Laws, as amended or replaced from time to time.

Laws means any International Conventions, treaties or domestic laws, regulations or guidelines of the Commonwealth of Australia, any of the States, Territories or municipalities of Australia, or of any country from which, through which or into which the Goods are carried and including, without limitation all regulations, ordinances and directions made pursuant to the Laws and any successor Laws.

Order means an order for the provision of Services given by the Customer to the Carrier either via the Carrier’s online booking system, by email, text message, or phone

Perishable Goods means any Goods liable to waste, deterioration or spoilage, and includes without limitation fruit, vegetables, dairy products, meat, and animals.

Place of Delivery means the place designated in the Order or Quote (as applicable) for the Goods to be delivered to the Customer or their agent.

Place of Receipt means the places designated in the Order or Quote (as applicable) for the Carrier to receive the Goods the subject of the Services.

PPSA means the Personal Properties and Securities Act 2009 (Cth) and any associated regulations.

Quote means a quotation issued by the Carrier the Customer in relation to the provision of the Services.

Rates [RCL1] means the Carrier’s rates for the provision of the Services as set out on the Carrier’s website, including charges for loading and unloading Goods, hours during which the Services are provided, weekend and public holidays, driver meal allowances and location of Place of Delivery and Place of Receipt.

RSA means those State and Commonwealth government authorities in Australia responsible for road safety regulation of heavy vehicles and Chain of Responsibility legislation and the Heavy Vehicle National Law and the laws governing the carriage of goods by road.

Services means the work performed by the Carrier for the Customer in relation to the Goods, including facilitating the Carriage or storage of the Goods and any ancillary acts for those purposes including loading and packing, as specified in the Agreement.

Sub-contractor means any third party appointed by the Carrier to provide the services and any sub-contractors, servants agents or sub-contracts whether direct or indirect of such third party.

Specialist Carriage means Carriage that may involve police or private escorts, road closures and or transport control by relevant government authority or the use of specialist equipment such as special cooling.

2.      Interpretation

a.     Each party must do everything necessary or desirable to give full effect to the Agreement.

b.     The Carrier is not a common carrier and reserves the right to refuse the provision of Services in relation to any Goods at its sole and unfettered discretion.

c.      Where the Customer comprises two or more persons an obligation under an Agreement will be performed or observed by those persons as the Customer jointly and severally.

d.     A reference to a party in these terms and conditions and an Agreement or any other document includes its successors and permitted assigns.

3.      Basis of Agreement and Acceptance

a.     A Quote supplied by the Carrier is an open for acceptance by the Customer within the period stated in the Quote or within 30 days if no period is stated.

b.     If the Carrier issues a Quote to the Customer, an Agreement between the Carrier and the Customer is formed on the early of:

i.    the Customer accepting the Quote in writing; or

ii.   the Customer making its Goods available for Carriage.

c.      If the Carrier does not issue a Quote to the Customer, an Agreement between the Carrier and the Customer is formed when the Carrier confirms its acceptance of an Order given by the Customer in writing.

d.     The Carrier may accept or reject an Order by notice in writing within 5 days of receipt of an Order from the Customer. Unless otherwise agreed between the parties in respect of an Order, if the Carrier does not accept or reject an Order in writing within 5 days of receipt, the Carrier will be deemed to have rejected an Order.

e.     The Carrier may refuse to provide all or any part of the Services requested in an Order at its discretion.  

f.       Unless the Carrier otherwise agrees in writing, these terms and conditions apply to the Agreement formed between the Carrier and the Customer for the provision of Services and cannot be varied or replaced by any other conditions, including the Customer’s own terms and conditions.

g.     If there is any inconsistency between:

i.    these terms and conditions and the Quote, the terms of the Quote will prevail; and

ii.   these terms and conditions and an Order, these terms and conditions will prevail.

4.      Packaging and Unloading

a.     The Carrier will only pack, load or unload the Goods if that service forms part of the Agreement between the Customer and Carrier.

b.     Where the Carrier agrees to pack, load or unload the Goods on behalf of the Customer, the packing shall be at the sole risk of the Customer and no liability is accepted on the part of the Carrier for any loss or damage of any kind arising from the packing, loading or unloading of the Goods.

c.      The Customer will give notice to the Carrier of any Goods which are Perishable Goods or are of a fragile or brittle nature or include such items or pieces having value in excess of $500.00 prior to Carriage or Storage. [RCL2] 

d.     The Customer must use its best endeavours to ensure that all Goods are removed or stored by the Carrier and that none is left behind or taken by the Carrier in error.

e.     The Customer agrees to indemnify the Carrier against any clam arising or expense incurred as a result of a breach of clause 4.c or 4.d.

5.      Transport

a.     The Carrier acknowledges that it is has been engaged by the Customer for the Carriage of the Goods from the Place of Receipt to the Place of Delivery.

b.     The Carrier may charge the Customer for any futile pick up at the Place of Receipt where the Goods are not ready at the nominated time for pick up or no one on behalf of the Customer is in attendance at the Place of Receipt.

c.      The Carrier, at its sole discretion, may subcontract on any terms all or part of the provision of the Services, including the Carriage.

6.      Delivery

a.     The Carrier is authorised to deliver the Goods at the address given to it by the Customer.

b.     The Carrier is deemed to have satisfied its delivery obligations under the Agreement if the Carrier delivers the Goods to the address given by the Customer and obtains from a person at that address a receipt or a signed delivery docket.

c.      The Customer must inspect the Goods within 24 hours of delivery (time being of the essence). The Carrier will not be liable for any claim made in respect of loss, damage or expenses, which is made after 24 hours from the time of the delivery of the Goods to the Customer. Any notice under this clause must be in writing. After this time there will be deemed unqualified acceptance of the Goods by the Customer.

d.     Where the Customer notifies the Carrier in accordance with clause 6.c, the Customer must make the Goods available for inspection to the Carrier within a reasonable time to assess any alleged claims by the Customer. 

e.     Delivery may take place in instalments at the Carrier’s sole discretion.

f.       The Customer may nominate a third party that will accept delivery on the Customer’s behalf and this will constitute good delivery.

g.     In the event of the consignee refusing to take delivery, or not being able to take delivery of the Goods, or the Goods being unable to be delivered for any other reason, the Carrier is authorised, at the Carrier’s absolute discretion and at the Customer's sole expense and risk and without liability to the Carrier, to deal with the Goods as the Carrier thinks fit including storing or disposing of the Goods or returning them to the Customer or the person entitled to collect the Goods. The Carrier at its sole discretion is entitled to charge the Customer for the storage of the Goods and any re-delivery of the Goods.

h.     The Carrier will not be responsible for any delay in delivery of the Goods that is caused by a breakdown of the Carrier (or its Sub-contractor’s) vehicle.

7.      Customer’s warranties acknowledgements and indemnities

a.     The Customer warrants that:

i.    the Goods are fit for Carriage, are in compliance with all applicable laws and regulations and that they are not Dangerous Goods (except as duly declared under clause 14.a);

ii.   it has complied with all Laws and regulations of any government authorities relating to the nature, condition, packaging, handling, storage, weight and Carriage of the Goods including all Laws prescribed by the RSA and the Heavy Vehicle National Law;

iii.   the Customer has the authority of all persons owning or having an interest in the Goods to enter into this Agreement in respect of the Services;

iv.  any packaging label or other services the Customer provides will be performed in compliance any applicable laws, Australian standards and international standards including but limited to Dangerous Goods codes;

v.   the Goods are packed to withstand ordinary risks of handling storage and Carriage, having regard to their nature;

vi.  it will maintain appropriate insurance in respect of the Goods and will not do anything which might void any insurance policy held by the Customer or the Carrier; and

vii. it will provide all documents, information and assistance required by the Carrier to provide the Services and to comply with the requirements of all government authorities in an accurate and timely fashion.

b.     The Customer acknowledges that:

i.    no representations inconsistent with these terms and conditions or the Agreement have been made by any employee, Sub-contractor or agent of the Carrier to the Customer;

ii.   the Carrier enters into the Agreement for and on behalf of itself and its employees and Sub-contractors, all of whom are be entitled to the benefit of the Agreement and will be under no liability whatsoever to the Customer or anyone claiming through it in respect of the Goods or the provision of the Services, in addition to or separately from that of the Carrier under the Agreement; and

iii.   the Carrier may inspect the Goods and for such purpose may open or remove any packaging.

c.      The Customer agrees to indemnify and keep indemnified the Carrier, its agents, Sub-contractors, officers and employees (Indemnified Parties) for any claim, action, damage, loss, fine, liability, cost, charge, expense, outgoing or payment which the Indemnified Parties pay, suffer, incur or are liable for as a result of or in connection with the Agreement including but not limited to:

i.    the provision of the Services;

ii.   a failure to supply the Services;

iii.   as a result of a breach of a warranty given by the Customer;

iv.  any negligent, unlawful or wrongful act or omission by the Customer or any third party outside of the Carrier’s control;

v.   as a result of any breach by the Customer of this Agreement;

vi.  in respect of any damage or loss of the Goods;

vii. all costs, demands, claims or expenses whatsoever and howsoever made arising as a result of the Customer making an incorrect description or advising of incorrect weight of the Goods;

viii. penalties imposed by any RSA for any breach of the Laws governing the Carriage of goods by road or any breach, act or omission arising out of or pursuant to the Chain of Responsibility obligations or the Heavy Vehicle National Law;

ix.  any loss to the Carrier’s Containers and other equipment, which appears due to the nature or condition of the Goods carried; or

x.   any loss or damage, including loss or damage suffered by the Carrier, resulting from the Customer’s unreasonable detention of any Containers or any other equipment,

except to the extent such loss or damage is caused by the Carrier’s wrongful or negligent act or omission.

8.       Subcontracting

a.     The Customer acknowledges that the Carrier enters into the Agreement on its own behalf and on behalf of its Sub-contractors and undertakes that no claim or allegation shall be made against any employee, agent or Sub-contractor of the Carrier which imposes or attempts to impose upon any of them any liability whatsoever in connection with the Goods whether or not arising out of the negligence or a wilful act or omission on the part of any of them; and if any such claim or allegation should nevertheless be made the Customer agrees to indemnify the Carrier against all consequences thereof.

b.     Every such employee, agent or Sub-contractor will have the benefit of all provisions in the Agreement benefitting the Carrier as if such provisions were expressly for their benefit and, for the purposes of this clause, the Carrier is or shall 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 shall be or be deemed to be parties to any Agreement to provide the Services.

9.      Route and Deviation:

a.     The Customer authorises any deviation from the Carrier’s usual route or manner of Carriage, which may in the Carrier’s discretion be necessary.

b.     The Customer hereby authorises the Carrier at its sole discretion, at any time without notice to the Customer to:

i.    use any means of transport or storage whatsoever and adopt any Specialist Carriage measures which may be required to ensure the safety of the Carrier, its Sub-contractors and any other persons and to comply with all government requirements;

ii.   proceed by any route whether or not it is the nearest or most direct or customary route;

iii.   proceed to or stay at any place whatsoever including in a contrary direction to or out of or beyond the customary or intended or advertised routes, once or more often in any order backwards or forwards and store the Goods at any such place whatsoever; and

iv.  comply with any order directions or recommendations as to loading, unloading, departure, routes, place or call, stoppages, destination, arrival, discharge, delivery or any other ways whatsoever given by any government or authority or any personal body acting or purporting to act with the authority of such government or authority.

c.      Any action taken by the Carrier under this clause 9 and any delay resulting therefrom shall be deemed to be included within the contractual route and shall not be a deviation.

d.     If the Carrier makes arrangements for the storage or preservation of the Goods after delivery it does so as agent of the Customer and solely at the Customer’s risk and expense.

10.    Force Majeure:

a.     Neither party is liable for any delay or failure to perform its obligations other than the Customer’s obligation to pay the Charges pursuant to these terms and conditions, if such delay or failure is due to Force Majeure.

b.     If a delay or failure by a party to perform its obligations due to Force Majeure exceeds 30 days, either party may immediately terminate the Agreement by written notice to the other.

c.      If an Agreement is terminated pursuant to clause 10.b, the Carrier will refund any Charges previously paid by the Customer pursuant to the Agreement for a Service or Services which were not supplied.

d.     The Carrier is not liable for any loss or damage to Goods occasioned during Carriage arising from Force Majeure , the Customer not taking or accepting delivery of the Goods, any act omission or neglect of the Customer,  compliance by the Carrier with the instructions of any person entitled to give them, insufficient or improper packing or improper labelling or addressing onward by the Customer of the Goods or handing, loading, storage or unloading the Goods by the Customer.

11.    Liability

a.     The Goods remain at the sole risk of the Customer at all times.

b.     To the maximum extent permitted by law, neither the Carrier, its employees, Sub-contractors and agents, nor anyone else involved in supplying the Services will be under any liability and is hereby released from any liability for any Consequential Loss arising out of the supply or use of the Services, any deterioration of the Goods, incorrect delivery, failure or delay in the delivery of the Goods, failure to supply, or out of any breach of contract or warranty including breach of an essential term.

c.      Without limiting clause 11.b, the  Carrier’s maximum liability for any and all claims made by the Customer or by any other person in connection with the Agreement will not exceed the total sum of the Charges paid by the Customer in connection with the Agreement.

d.     Any guarantee, condition or warranty implied in this Agreement by legislation which avoids or prohibits the terms of an agreement from excluding or modifying the application or exercise of, or liability under such guarantee, condition or warranty is deemed to be included in the Agreement subject to clause 11.e.

e.     The Carrier’s liability for any breach of a guarantee, condition or warranty implied in the Agreement pursuant to clause 11.d is limited, in the Carrier’s absolute discretion, to one or other of the following:

i.    supplying the Services again; or

ii.   paying the cost of having the Services supplied again;

and does not extend to Consequential Loss.

f.       The Customer must notify the Carrier of any circumstances that might give rise to a claim within 24 hours and make a written claim for loss or damage within 72 hours after delivery of the Goods.

12.    Security

a.     The Carrier has:

i.    a particular and general lien on all Goods and documents relating to the Goods; and

ii.   a right to sell those Goods and documents by public auction or private sale (at the Carrier’s discretion) without notice and apply the proceeds of sale;

in respect of all sums due and owing from the Customer.

b.     The lien will also cover the Carrier’s costs and expenses relating to the exercise of its lien and right of sale, including the Carrier’s reasonable legal fees.

c.      For the purposes of the lien, the Carrier will retain constructive possession of the Goods and the lien and rights granted by this clause will survive delivery of the Goods. The Carrier is entitled to retain the proceeds of sale of the Goods in respect of all sums due and owing from the Customer.

d.     Terms used in this clause 12 that are defined in the PPSA have the same meaning as in the PPSA.

e.     Without limitation to other rights of the Carrier, from the time the Goods are in the possession of the Carrier or a Sub-contractor, the Goods are subject to a continuing security interest in favour of the Carrier for the payment of all amounts due and owing by the Customer under the Agreement.

f.       The Customer acknowledges and consents to the Carrier’s registration and perfection of the Carrier’s security interest under the Agreement for the purposes of the PPSA.

g.     The Customer will not grant a security interest to another person, or allow any encumbrance to arise, in respect of the Goods.

h.     To the extent permitted by law, the Customer irrevocably waives any right it may have to:

i.    receive notices or statements under sections 95, 118, 121(4), 125, 130, 132(3)(d) or 132(4) of the PPSA; and  

ii.   redeem the Goods under section 142 of the PPSA;

iii.   reinstate this Agreement under section 143 of the PPSA; and

iv.  receive a verification statement.

i.       The Customer will do all things and execute all documents reasonably necessary to give effect to the security interest created under this Agreement or comply with any reasonable request by the Carrier in connection with the PPSA.

13.    Insurance:

a.     The Carrier will not effect any insurance of the Goods for the benefit of the Customer or otherwise except:

i.    with prior written instruction from the Customer; and

ii.   at the Customer’s sole expense.

b.     If the Customer does not specify the class of any insurance to be effected pursuant to clause 13.a the Carrier may affect that class of insurance which the Carrier in its discretion considers appropriate to the Goods.

c.      Any insurance effected pursuant to clause 13.a will exclude:

i.    all claims resulting from wear and tear, moths, vermin, damp, mildew or loss of market;

ii.   all claims resulting from, loss, damage or expense proximately caused by delay;

iii.   strikes riots, civil commotions or malicious damage to the Goods insured;

iv.  gradual deterioration, rust or oxidisation unless due to or consequent upon fire, collision, overturning or other accident; or

v.   any other exclusion advised by the Customer to the Carrier prior to the effecting of such insurance.

14.    Dangerous Goods

a.     If the Carrier accepts Dangerous Goods for Carriage such Goods must be accompanied by a full declaration of their nature and contents and be properly and safely packed in accordance with statutory obligations applicable to the Carriage of those Goods.

b.     The Customer indemnifies and must keep the Carrier indemnified against all loss, including Consequential Loss, damage or injury however caused arising out of the Carriage of Dangerous Goods, whether declared as such or not and whether or not the Customer was aware of the nature of the Goods.

c.      At any time, the Carrier may, acting reasonably, deem that certain Goods are Dangerous Goods.

d.     The Carrier at its reasonable discretion may destroy or otherwise deal with any Goods the Carrier considers are Dangerous Goods, without notice or compensation to the Customer.

e.     The Customer warrants in favour of the Carrier that the Goods are packed in a manner adequate to withstand the ordinary risks of Carriage having regard to their nature and in compliance with all laws and regulations, which may be applicable during the Carriage.

f.       The Carrier may at the expense of the Customer, dispose of or destroy of any perishable Goods which the Carrier believes have deteriorated or have become objectionable, unwholesome or a source of danger or contamination.

15.    Storage

a.     The Carrier will only store Goods for the Customer if that service forms part of the Agreement between the Customer and the Carrier.

b.     Any storage of Goods by the Carrier will be as agent of the Customer and solely at the Customer’s risk and expense. The Customer acknowledges and agrees that the Goods may be stored or held on the vehicle that transported the Goods. The Carrier will not be responsible, and does not accept liability for, any loss or damage (including theft and tampering) of any kind arising from the storage of the Goods

c.      At the Carrier’s discretion the Goods may be stored at any place and at any time and be removed from any place at which they may be stored or otherwise held to any other place to be stored.

d.     Dangerous Goods held by the Carrier for Storage will be subject to the indemnity given by that Customer in clause 14.b.

e.     Prior to the commencement of any storage, the Customer will provide to the Carrier an inventory of the Goods to be stored. The Carrier is entitled to check the inventory and provide its own inventory of the Goods received at the time of receipt. To the extent of any inconsistency between the inventory provided by the Customer and the Carrier, the Carrier’s inventory will prevail.

f.       The Customer will remove the Goods from Storage within 2 days[RCL3]  of being requested to do so by the Carrier. Where the Customer fails to comply with this clause, the Carrier will be entitled to impose additional charges on the Customer for the delay.

16.    Charges and Payment

a.     Charges may be specified by the Carrier in a Quote, acceptance of an Order or any other document. All Charges are subject to change in accordance with these terms and conditions. If no Charges are specified (or that type of charge is not specified in the Quote, acceptance of an Order or any other document) the Customer must pay Charges to the Carrier calculated in accordance with the Rates. The Customer must pay the Charges plus any additional Charges, which may be incurred in accordance with these terms and conditions and the applicable Agreement.

b.     The Carrier may vary its Rates on 30 days written notice of the Customer. The variation will apply to any requests for Service made by the Customer 30 days or more after the notice. If the Customer does not agree with the Carrier’s varied rates, the Customer is under no obligation to make any further requests for Services.

c.      Unless an earlier date is specified on an invoice issued by the Carrier, all Charges are to be paid not later than 45 days from end of month in which the invoice is issued. Failure to do so may incur [RCL4] additional charges or if the account remains outstanding after reasonable steps are taken to recover monies, the Carrier may suspend current and pending orders from the Customer and hold Goods on site until such time as the account is brought back within normal trading terms of 45 days from end of month in which the invoice is issued[RCL5] .

d.      The Carrier at its sole discretion may require a deposit to be paid by the Customer prior to commencing any Services.

e.     As well as Charges, the Customer must pay on demand any expenses or other fees and charges reasonably incurred by the Carrier in relation to the provision of the Services including without limit the expenses incurred for any delays or demurrage or packaging or for any road, rail, air or sea for  the Goods or staff or accommodation.

f.       Where the Services required by the Customer vary from the work for which a quotation or estimate was given by the Carrier, the Customer will be liable for additional reasonable charges at the Carrier’s sole discretion calculated in accordance with the Rates. Situations where this clause will apply include but are not limited to differences in:

i.    where packing, loading or unloading of the Goods is required;

ii.   hours during which the Services are provided (including after hours, public holidays and weekends);

iii.   the quantity, weight, measurement or value of the Goods;

iv.  the nature and location of the Place of Delivery and Place of Receipt;

v.   the facilities available for packing, loading and unloading; and

vi.  the dates and times for delivery.

g.     The Carrier will be entitled to additional Charges from the Customer for any storage of the Goods it undertakes where the Customer fails in any of its obligations under these terms and conditions and the Agreement with respect to delivery of the Goods.

h.     If the Charges and or any other amounts due to the Carrier by the Customer are not paid in full within 7 days of the due date for payment, without limitation to its rights, the Carrier may charge the Customer interest at the rate applicable under the Penalty Interest Rates Act 1983 (Vic) plus an additional 2%.

17.    Australian Consumer Law

a.     To the maximum extent permitted by law, the only warranties or guarantees that are binding on the Carrier in respect of the Services to be provided to the Customer are those (if any) imposed and required to be binding by the ACL or any similar and applicable law. All other warranties or guarantees (express or implied) are expressly excluded.

b.     If the Carrier fails to comply with any applicable warranty or guarantee under the ACL, the Carrier’s liability (at its option) is limited to either;

i.    the supplying of the Services again; or

ii.   the payment of the costs of having the Services supplied again.

c.      Without limiting clause 17.b, the Carrier shall not be liable for any loss or damage to the Goods or any loss or damage (including Consequential Loss) in connection with:

i.    any misdelivery, delayed delivery or non-delivery of the Goods, or any part or portion of the Goods;

ii.   packing or unpacking or loading or unloading any Goods; or

iii.   the storage of the Goods, regardless of whether such loss or damage occurred during the Carriage or Storage and howsoever it was caused, including whether by any negligence or breach of contract or wrongful act or default of the Carrier.

18.    Cancellation

If the Customer cancels the Agreement within 24 hours from the scheduled commencement date of the Services, the Customer must pay to the Carrier all Charges, costs, damages and expenses incurred by the Carrier to the date of such cancellation together with all Consequential Losses and loss of profits incurred by the Carrier as a consequence of cancellation of the Order by the Customer.

19.    Termination

a.     The Agreement may be terminated at the option of either party (Innocent Party) immediately on written notice if:

i.    the other party (Breach Party) commits a material breach of its obligations under the Agreement and fails or is unable to remedy such breach within 7 days after receiving written notice from the Innocent Party requiring the breach to be remedied; or

ii.   a liquidator or trustee in bankruptcy is appointed to the Breach Party or to all or any substantial part of the assets and undertakings of the Breach Party.

b.     Without prejudice to any other remedies at law, if at any time the Customer is in breach of these the Agreement (including by not paying any Charges when due), the Carrier may suspend the provision of the Services. The Carrier will not be liable to the Customer for any loss or damage the Customer suffers because of the Carrier exercising its rights under this clause.

20.    Consequences of Termination

a.     The Carrier will cease to provide the Services to you upon termination of the Agreement.

b.     Termination of the Agreement in accordance with clause 19 will be without prejudice to any accrued rights of either party under the Agreement.

21.    GST

a.     Except where a contrary intention appears, expressions set out in this clause bear the same meaning as those expressions in the GST Act.

b.     Except where express provision is made to the contrary, and subject to this clause 21, any consideration payable by any party under this Agreement represents the value of any taxable supply for which payment is to be made.

c.      Subject to clause 21.d, if a party makes a taxable supply in connection with this Agreement for a consideration, which, under clauses 21.b, represents its value, then the party liable to pay for the taxable supply must also pay, at the same time and in the same manner as the value is otherwise payable, the amount of any GST payable in respect of the taxable supply.

d.     A party’s right to payment is subject to a valid tax invoice being delivered to the party liable for the taxable supply.

22.    Warranty of Authority

a.     The Customer warrants to the Carrier that the Customer is either the owner of the Goods or the authorised agent of the owner of the Goods and by entering into this Agreement accepts these conditions as consignor and for the consignee and for any other person or persons on whose behalf the Customer is acting. The Customer further warrants that it is authorised to accept this Agreement as and for the consignor.

23.    Disputes

a.     A party may give the other party notice of a dispute in relation to any dispute arising out of or in connection with this Agreement (Dispute Notice).

b.     The parties will endeavour to resolve the dispute within 5 Business Days of receipt of the Dispute Notice or such other period as may be agreed.

c.      If after 7 days the parties have not been able to resolve the dispute, the dispute shall be referred to the Managing Directors (or their equivalent) of the respective parties, who will endeavour to resolve the dispute within a further 7 days from the referral or such other period as may be agreed upon by those persons.

d.     If after the further 7 days period the parties have not been able to resolve the dispute, the dispute shall be referred to a duly qualified mediator who is agreed between the parties, or failing such agreement, who is appointed by the President of the Law Institute of Victoria or its successor.

e.     A party may not commence legal proceedings (except proceedings seeking urgent interlocutory relief) in respect of a dispute unless the dispute has been referred for resolution in accordance with the above dispute resolution procedure.

f.       Any legal proceedings must be commenced against the Carrier within 6 months of the date of the completion of the Services, failing which the Carrier is discharged and released from any liability.

24.    Privacy

The Carrier understands that you value your privacy and wish to have your personal information kept secure. You can view the full text of our Privacy Policy and Privacy Collection Notice, which sets out how we collect and deal with your personal information, at [insert URL] or upon request from us. By providing us with your personal information you are confirming your acceptance of our Privacy Policy and Privacy Collection Notice.

25.    General

a.     The relationship between the Customer and the Carrier in respect of this Agreement shall be as independent contractor and customer and not that of employment, partnership, joint venture or agency. 

b.     Any notice required under this Agreement must be in writing and given by express post, email or hand to at the address set out in the Order or at such other address or email address as is notified in writing by one party to the other.

c.      These terms and conditions and the Agreement may only be varied or amended with the express written consent of the Carrier.

d.     The Carrier may vary, alter or change these terms and conditions at its sole discretion from time to time and on 30 days written notice to the Customer. Any Order placed by the Customer after the 30 day period will be subject to these terms and conditions as amended.

e.     These terms and conditions and the Agreement are governed by and are construed in accordance with the Laws of the State of Victoria and the Commonwealth of Australia. Both parties submit to the exclusive jurisdiction of the courts of or in the State of Victoria and the courts of appeal therefrom.

f.       If any part of these terms and conditions or the Agreement becomes illegal, invalid, unenforceable or void then it is severed, and the remainder of these terms and conditions and such Agreement remains in full force.

g.     A failure by the Carrier to enforce any provision of these terms and conditions or the Agreement shall not be treated as a waiver of that clause, nor shall it affect the Carrier’s rights to enforce that clause.

h.     This Agreement contains the entire understanding of the parties as to the Services. These terms and conditions operate to the exclusion of all other terms and conditions the Customer may seek to impose, including but not limited to the terms and conditions on an Order.

 [RCL1]Please see our comment and question at clause 16.e.

 [RCL2]We recommend including this sentence, although you may want increase the threshold from $500 to a higher amount.

 [RCL3]Given you are not in the business of storing goods for long periods, we have reduced this from 28 days to 2 days.

 [RCL4]Michael, do you mean 45 days from end of month of invoice, or 45 days from end of month following the delivery?

 [RCL5]As above – please confirm which end of month.