THE READY TOWING GROUP TERMS AND CONDITIONS OF CARRIAGE AND STORAGE
1. Definitions and Interpretation
The definitions and interpretation of this Agreement are set out in clauses 10.10 to 10.12.
2.1 Carriage terms
The parties acknowledge and agree that:
(a) the Carrier is not a common carrier and will only accept Goods for Carriage and Storage on the terms and conditions set out in this Agreement and in accordance with any agreed Order; and
(b) the terms and conditions set out in this Agreement shall apply to each Carriage and Storage undertaken by the Carrier from time to time, unless the Carrier directs otherwise in writing.
The Customer may submit an Order to the Carrier from time to time in a form acceptable to the Carrier.
(a) The Carrier reserves the right to accept or reject any Order request received.
(b) Until the Carrier accepts in writing any submitted Order, the Carrier is not obliged to undertake any Carriage or Storage for the Customer.
If an Order is accepted by the Carrier and the Customer cancels the Order for any reason after the date that the Order is accepted by the Carrier, the Customer may be charged a ‘cancellation fee’ at the discretion of the Carrier provided that such cancellation fee must not exceed the costs incurred and loss suffered by the Carrier as a result of the cancelation by the Customer.
The Carrier undertakes to:
(a) procure the carriage of the Goods from the Place of Receipt to the Place of Delivery; and/or
(b) procure the Storage of the Goods for the Storage Period.
2.6 Right to Sub-Contract
The Carrier may without requiring the consent of the Customer and in its absolute discretion, sub-contract or otherwise licence all or any part of it rights and obligations under this Agreement including the obligation to complete the Carriage or Storage of Goods.
3. Customers warranties acknowledgments and indemnities
3.1 Customer’s warranties
The Customer warrants that:
(a) the Goods are fit for Carriage and Storage;
(b) except where clause 3.2 applies, the Goods are not Dangerous Goods;
(c) 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 carriage including those relating to the transportation of Dangerous Goods;
(d) the Customer is authorised to enter into this Agreement and has the authority of all parties who own or otherwise have an interest in the Goods to engage the Carrier to complete the Carriage and Storage, as applicable;
(e) the person delivering any Goods to the Carrier for Carriage or Storage is authorised to sign any delivery docket or receipt (including Consignment Note) on behalf of the Customer and by signing such docket or receipt the Customer will continue to be bound by the terms and conditions set out in this Agreement.
3.2 Dangerous Goods
(a) The Customer must notify the Carrier in writing that any proposed Carriage or Storage of Goods includes Dangerous Goods.
(b) The Carrier is not obliged to accept any Order which relates to Dangerous Goods, nor undertake any Carriage or Storage if the Carrier determines:
(1) that the Goods are Dangerous Goods;
(2) that the requirements of clause 3.2(c) have not been fully complied with at the time the time of the Carriage or Storage.
(c) If the Carrier accepts Dangerous Goods for Carriage or Storage, then the Customer must ensure that at the time the Carrier attends to collect the Goods from the Place of Receipt:
(1) such Goods are accompanied by a full declaration as to their nature and contents, such declaration must be fully completed and contain accurate details in respect to the Dangerous Goods to be transported by the Carrier;
(2) such Goods are properly and safely packed and marked in accordance with all statutory regulations and Codes applicable to the carriage or storage of those goods; and
(3) the Customer provides any other information, declaration or documentation as is required by the Carrier or a Government Body from time to time to ensure compliance with all Commonwealth and State standards and requirements for transporting dangerous goods.
(d) The Customer shall indemnify and keep the Carrier indemnified against all loss (including consequential loss), damage or injury however caused arising out of the Carriage of any Dangerous Goods, whether declared as such or not and whether or not the Customer was aware of the nature of the Goods.
(e) Where Dangerous Goods are delivered to the Carrier or left at the Place of Receipt for collection by the Carrier:
(1) without prior notification and written consent by the Carrier that the Carriage or Storage includes Dangerous Goods; or
(2) and the Dangerous Goods are not distinctly marked to indicate the nature and character of the goods, properly and safely packed and otherwise accompanied by the documentation as set out in clause 3.2(c); or
(3) in the reasonable opinion of the Carrier (or the Carrier’s employees, servants, agents or Sub-Contractors) the articles are or are liable to become or deemed to be Dangerous Goods,
then same may at any time be destroyed, disposed of, abandoned, or rendered harmless by the Carrier, without compensation to the Customer or any party claiming under the Customer.
The Customer shall indemnify and keep the Carrier indemnified against:
(a) any loss or damage which may be suffered by the Carrier (its employees, servants, agents and Sub-Contractors) as a result of any breach by the Customer of the warranties and acknowledgments contained in this Agreement or any document or declaration contemplated under this Agreement including those set out in clause 3.2 of this Agreement;
(b) any loss or damage to the Carrier’s containers or other equipment which occurs while in the possession or control of the Customer or which occurs due to the nature or condition of the Goods in such containers.
For the purpose of this clause 3.3, “loss” expressly includes:-
(c) consequential loss; and
(d) any fine, levy, charge or other monetary imposition to which the Carrier may become liable as an incident to the Carriage or Storage, and resultant from any breach by the Customer of this Agreement.
(a) Where the Customer is not the Owner of some or all of the Goods the Customer shall be deemed for all purposes to be the agent of the Owner and is authorised to enter into this Agreement with the Carrier in respect to Goods and for the purposes of the Carrier undertaking the Carriage or Storage.
(b) The Carrier enters into this Agreement for and on behalf of itself and its servants, agents and Sub-Contractors, all of whom shall be entitled to the benefit of this Agreement and shall be under no liability whatsoever to the Customer or anyone claiming through the Customer in respect of the Goods, in addition to or separately from that of the Carrier under this Agreement.
4. Route and Deviation
The Customer authorises and will not object to any deviation from the Carrier’s usual route or manner of carriage which may in the Carrier’s discretion be necessary to undertake the Carriage, including deviations which as a result mean the Carriage and delivery of the Goods takes longer than anticipated by the Carrier.
(a) The Carrier shall deliver the Goods to the Place of Delivery in accordance with the Order and the Customer shall be deemed to have accepted delivery of the Goods at that time.
(b) Where the Customer expressly requests the Carrier to deliver the Goods to a Place of Delivery which is unattended, such Goods will be left at the nominated location at the Customer’s sole risk. The Carrier may without further notice unload the Goods and/or store same in an open or undercover location at the Place of Delivery if unattended and the Carrier will not be liable for any liability, loss or damage caused to the Goods or suffered by the Customer as a result of leaving the Goods at the Place of Delivery.
(a) At all times and in all circumstances and for all purposes the Goods shall be and remain at the sole risk of the Customer, and the Carrier shall be under no liability whatsoever to the Customer or any person claiming under the Customer for any liability, loss, damage or harm to the Goods or failure to deliver or store the Goods in accordance with this Agreement, whether occasioned during Carriage and/or Storage or arising from or relating to the Carriage or Storage generally and including without limitation any negligence, breach of contract or wilful act or default on the part of the Carrier and its employees, servants, agents or Sub-Contractors.
(b) Every such servant, agent and Sub-Contractor, shall have the benefit of all provisions herein benefiting the Carrier as if such provisions were expressly for their benefit.
(c) The Customer shall hold harmless and keep the Carrier indemnified against all claims or demands whatsoever by whomsoever made in excess of the liability of the Carrier under these terms of this Agreement in respect of any loss, damage or injury however caused, whether or not by the negligence of wilful act or omission of the Carrier or his servants, agents or Sub-Contractors.
(d) The Carrier shall be entitled to the benefit of the exclusion of liability provided for herein even if it is proved that the loss or damage resulted from an act of omission of the Carrier done with intent to cause damage or recklessly and with knowledge that damage would probably result.
(e) Nothing whatsoever done or omitted to be done or other conduct by the Carrier in breach of the contract or otherwise howsoever lawfully or unlawfully, shall under any circumstances constitute a breach going to the root of this Agreement, or a deviation or departure therefrom or repudiation thereof such as to have the effect of disentitling the Carrier from obtaining the benefit of and enforcing all rights, defenses, exceptions, immunities and limitation of liability and other like protections on the Carrier contained in those conditions and all such rights, defenses, exceptions, immunities, limitations of liability and like protections shall continue to have full force and effect in any event whatsoever.
(a) Any Storage of Goods shall be as agent of the Customer and solely at the Customer’s risk and expense, but the provisions of this Agreement including clause 5 shall apply.
(b) 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.
7. Freight and Lien
7.1 Freight and payment
(a) Freight is payable by the Customer to the Carrier in accordance with the terms of this Agreement.
(b) Freight shall be deemed fully earned on collection of the Goods from the Place of Receipt by the Carrier and is non-refundable in any event.
(c) Payment of the Freight must be made by cash, bank cheque, credit card, direct credit or by any other method nominated by the Carrier from time to time. In the event that the Customer’s payment is dishonoured for any reason, the Customer will be liable for any dishonour fees incurred by the Carrier.
(d) Unless otherwise stated, GST and other taxes and duties that may be applicable will be added to the Freight except when they are expressly included in the Freight.
Goods are received and held by the Carrier subject to:
(a) A lien for all moneys due to the Carrier for the Carriage and/or Storage of the Goods, and all other proper charges or expenses incurred by the Carrier in connection with or as a result of the Carriage or Storage; and
(b) A general lien for all moneys or charges due to the Carrier from the Customer and the Owner of such Goods for any services rendered or accommodation provided by the Carrier to the Customer or Owner.
7.3 Unsatisfied lien
Where any lien remains unsatisfied within seven (7) days from the date on which the Carrier gave notice of the exercise of its rights to the Customer or Owner (as the case may be), the Goods may at the Carrier’s discretion be sold by public auction or private treaty and the proceeds of sale applied in or towards the satisfaction of every such lien and all proper charges and expenses in relation thereto (including the expenses of the sale) and the Carrier shall account to the Customer or the Owner of the Goods for any surplus proceeds of sale.
8.1 The Carrier will not effect any insurance of the Goods or in respect to undertaking the Carriage or Storage for the benefit of the Customer or otherwise, except:
(a) on the prior written instruction of the Customer; and
(b) at the Customer’s sole expense.
8.2 Should the Customer fail to specify the class of any insurance to be effected pursuant to clause 8.1, the Carrier may effect that class of insurance which the Carrier in its absolute discretion considers most appropriate and the Customer shall have no claim against the Carrier in respect to same.
9. Default and Termination
9.1 Failure to pay
If the Customer fails to pay amounts due to the Carrier in accordance with this Agreement then the Carrier shall be entitled to:
(a) charge interest on the amount outstanding at a rate equal to the maximum overdraft rate fixed by the Commonwealth Bank of Australia plus 2.5% on a daily basis from the due date for payment until the amount outstanding (including the interest payable) has been paid in full; or
(b) suspend the Carriage and/or Storage services until such time as all amounts owing have been paid in full; or
(c) vary the price for the Carriage or Storage (or both) to include additional charges incurred by the Carrier as a result of the failure to make payment when due; or
(d) do all or any of the above.
9.2 Right to terminate
The Carrier may terminate this Agreement:
(a) by written notice to the Customer if the Customer commits any breach of any provision of this Agreement and fails to remedy that breach within the time stipulated (being not less than 5 business days) in a written notice from the Carrier requiring it to do so; or
(b) immediately if an Insolvency Event occurs in respect of the Customer.
9.3 Effect on termination
Any termination of this Agreement under clause 9.2 will be without prejudice to the rights of the party terminating to seek and obtain damages for any breach of this Agreement by the other party.
9.4 Consequences on termination
Upon termination of this Agreement:
(a) Each party (First Party) must immediately return or (if requested to do so by other party) destroy all materials belonging to the other party in the First Party’s possession or control; and
(b) Each party must return to the other party or (if requested by the other party) destroy, all confidential information belonging to the other party.
9.5 Continuing obligations
Any obligations which are intended to continue to bind a party after termination or expiration of this Agreement in respect of it continue to bind that party notwithstanding termination.
The parties acknowledge and agree that notwithstanding anything herein contained, the Carrier shall be subject to any condition or warranty implied by the Competition and Consumer Act 2010 (Cth) (CCA), if and to the extent that the CCA is applicable to this Agreement. However, subject to the Carrier’s statutory obligations under the CCA and except as expressly provided in this Agreement, all express and implied warranties, guarantees and conditions under statutory or general law in respect to goods or service performed and the carriage generally, are excluded.
10.2 Electronic Communication
The parties acknowledge and agree that:
(a) this Agreement may be executed by either party by Electronic Signature and each party consents to the other party executing this Agreement in this manner; and
(b) where a party delivers an executed counterpart of this Agreement by facsimile or other electronic means such delivery will be deemed to be an effective delivery of an originally executed counterpart of this Agreement.
10.3 Force Majeure
(a) Where a party is unable, wholly or in part, by reason of any fact, circumstance, matter or thing beyond the reasonable control of the party affected (“force majeure”), to carry out any obligation under this Agreement, and the party:
(1) gives the other party prompt written notice of such force majeure with reasonably full particulars thereof, and insofar as known, the probable extent to which it will be unable to perform or be delayed in performing that obligation; and
(2) uses all possible diligence to remove the force majeure as quickly as possible;
that obligation is suspended, so far as it is affected by force majeure, during the continuance thereof.
(b) Any obligation to pay money under this Agreement shall not be excused by force majeure.
(c) The requirement that any force majeure shall be removed with all possible diligence shall not require the settlement of strikes, lockouts or other labour disputes, or claims or demands by any government on terms contrary to the wishes of the party affected.
10.4 Governing law
This Agreement is governed by and construed in accordance with the laws of Queensland.
Each party irrevocably:
(a) submits to the non-exclusive jurisdiction of the courts of Queensland and the courts competent to determine appeals from those courts, with respect to any proceedings which may be brought at any time relating to this Agreement; and
(b) waives any objection it may now or in the future have to the venue of any proceedings, and any claim it may now or in the future have that any proceedings have been brought in an inconvenient forum, if that venue falls within paragraph 10.5(a).
If a provision of this Agreement is illegal, invalid, unenforceable or void in a jurisdiction it is severed for that jurisdiction and the remainder of this Agreement has full force and effect and the validity or enforceability of that provision in any other jurisdiction is not affected.
(a) A party’s waiver of a right under or relating to this Agreement, whether prospectively or retrospectively, is not effective unless it is in writing and signed by that party.
(b) No other act, omission or delay by a party will constitute a waiver of a right.
This Agreement may be executed in any number of counterparts each of which will be considered an original but all of which will constitute one and the same instrument. A party who has executed a counterpart of this Agreement may deliver it to, or exchange it with, another party by:
(a) faxing; or
(b) emailing a pdf (portable document format) copy of,
(c) the executed counterpart to that other party.
10.9 Whole agreement
(a) is the entire agreement and understanding between the parties relating to the subject matter of this Agreement; and
(b) supersedes any prior agreement, representation (written or oral) or understanding on anything connected with that subject matter.
(a) Unless the contrary intention appears, a reference in this Agreement to:
(1) this Agreement or another document includes any variation or replacement of it despite any change in the identity of the parties;
(2) one gender includes the others;
(3) the singular includes the plural and the plural includes the singular;
(4) a person, partnership, corporation, trust, association, joint venture, unincorporated body, government body or other entity includes any other of them;
(5) a party includes the party’s executors, administrators, successors, substitutes (including a person who becomes a party by novation) and permitted assigns;
(6) any statute, ordinance, code or other law includes regulations and other instruments under any of them and consolidations, amendments, re-enactments or replacements of any of them;
(7) money is to Australian dollars, unless otherwise stated;
(8) a time is a reference to Brisbane time unless otherwise specified.
(b) The words include, including, such as, for example and similar expressions are not to be construed as words of limitation.
(c) Where a word or expression is given a particular meaning, other parts of speech and grammatical forms of that word or expression have a corresponding meaning.
(d) Headings and any table of contents or index are for convenience only and do not affect the interpretation of this Agreement.
(e) A provision of this agreement must not be construed to the disadvantage of a party merely because that party or its advisers were responsible for the preparation of the agreement or the inclusion of the provision in the Agreement.
(f) If an act must be done on a specified day which is not a Business Day, it must be done instead on the next Business Day.
(g) If an act is required to be done on a particular day it must be done before 5.00pm on that day or it will be considered to have been done on the following day.
(a) If a party consists of more than one person, this Agreement binds each of them separately and any two or more of them jointly.
(b) An agreement, covenant, obligation, representation or warranty in favour of two or more persons is for the benefit of them jointly and each of them separately.
(c) An agreement, covenant, obligation, representation or warranty on the part of two or more persons binds them jointly and each of them separately.
(a) “Agreement” means this Agreement.
(b) “Carriage” means the whole of the operations and services undertaken by the Carrier for the Customer in respect to the transportation of Goods including packaging or handling or other services, and includes any agreed carriage set out in an Order from time to time.
(c) “Carrier” means the carrier engaged to undertake the Carriage being one or more of Biz Tow Pty Ltd ACN 615 386 804, Brizman Pty Ltd ACN 112 566 257 (ABN 85 112 566 257), Tranzit Transport Pty Ltd ACN 135 619 957 (ABN 45 135 619 957) and Absolutely No Parking Pty Ltd ACN 112 199 596 (ABN 44 112 199 596) which collectively trade as Ready Towing.
(d) “Corporations Act” means the Corporations Act 2001 (Cth).
(e) “Controller” has the meaning given in section 9 of the Corporations Act.
(f) “Customer” means the party engaging the Carrier to undertake the Carriage from time to time and may include a sender, shipper, consignor, consignee, receiver of Goods, any person owning or entitled to the possession of the goods, or anyone acting on behalf of such persons.
(g) “Dangerous Goods” means any Goods which are or may become dangerous, inflammable or damaging or which are or may become liable to damage any property whatsoever including (without limitation) substances that are corrosive, flammable, explosive, spontaneously combustible or toxic, or which would otherwise be classified to be dangerous in accordance with Commonwealth or State legislation, regulations or codes.
(h) “External Administrator” means an administrator, Controller, trustee, provisional liquidator, liquidator or any other person holding or appointed to an analogous office or acting or purporting to act in an analogous capacity.
(i) “Electronic Signature” means a signature used on an electronic document or transmission.
(j) “Freight” includes all charges payable by the Customer to the Carrier as set out in the Order and this Agreement.
(k) “Goods” means the Goods to be transported for Carriage purposes on behalf of the Customer and includes any container not supplied by or on behalf of the Carrier. The term includes motor vehicles, trailers, machinery and site sheds.
(l) “Government Body” means:
(1) any person, body or other thing exercising an executive, legislative, judicial or other governmental function of any country or political subdivision of any country;
(2) any public authority constituted by or under a law of any country or political subdivision of any country; and
(3) any person deriving a power directly or indirectly from any other Government Body.
(m) “GST” has the same meaning given to it in the GST Law.
(n) “GST Law” has the meaning given to it in A New Tax System (Goods and Services Tax) Act 1999 (Cth).
(o) “Insolvency Event” means:
(1) in relation to any corporation:
(A) its Liquidation;
(B) an External Administrator is appointed in respect of the corporation or any of its property;
(C) the corporation ceases or threatens to cease to carry on its business;
(D) the corporation being deemed to be, or stating that it is, unable to pay its debts when they fall due;
(E) any other ground for Liquidation or the appointment of an External Administrator occurs in relation to the corporation;
(F) the corporation resolves to enter into Liquidation; or
(G) an application being made which is not dismissed or withdrawn within ten Business Days for an order, resolution being passed or proposed, a meeting being convened or any other action being taken to cause or consider anything described in paragraphs (1) to (6) (inclusive) above;
(2) in relation to an individual, that person becoming an insolvent under administration as defined in section 9 of the Corporations Act; and
(3) in relation to any person, anything analogous to or having a similar effect to anything described above in this definition under the law of any relevant jurisdiction.
(p) “Liquidation” means:
(1) a winding up or liquidation (whether voluntary or involuntary), provisional liquidation, dissolution, bankruptcy or other analogous proceeding; or
(2) an arrangement, assignment, composition or moratorium with or for the benefit of creditors or any class or group of creditors (including an administration or arrangement under part 5.3A of the Corporations Act).
(q) “Place of Receipt” means the place designated by the Customer where the Goods are to be collected from as set out in the Order.
(r) “Place of Delivery” means the place designated by the Customer where the Goods are to be delivered to as set out in the Order.
(s) “Order” means any request in writing or otherwise made by the Customer to the Carrier for the Carrier to undertake Carriage services and/or Storage and includes a quote, statement of work or booking request in relation to such work.
(t) “Owner” means any person owning or entitled to the possession of the Goods.
(u) “Storage” means the whole of the operations and services undertaken by the Carrier in respect to the Goods in receiving, storing and subsequently making the Goods available for collection.
(v) “Storage Period” means the period of storage (if any) for the Goods.
(w) “Sub-Contractor” means any sub-contractor of the Carrier from time to time and includes the sub-contractor’s employees, servants and agents.
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