1. DEFINITIONS
“Carriage” means the whole of the operations and services undertaken by the Carrier or any Person on behalf of the Carrier in respect of the Goods (whether gratuitously or not), including but without limiting the generality or this definition, loading, unloading and storage of the Goods and the towing of a trailer.
“Carrier” means Maloney Transport Pty Ltd (ACN 603 945 320) trading under the name of MALONEY TRANSPORT or under any other business name and its officers, servants, agents and Subcontractors.
“Consequential Loss” means any indirect or consequential loss; loss of use; loss of product or production; delayed, postponed, interrupted or deferred production; inability to produce; deliver or process; loss of profit, revenue or anticipated revenue; loss of bargain, contract, expectation or opportunity; punitive or exemplary damages; in each case arising from or in connection with the performance of these conditions and whether or not foreseeable at the time of entering into this Agreement.
“Customer” means the Person who engages the Carrier to provide Services of Carriage.
“Goods” mean the property from time to time accepted by the Carrier for Carriage and includes any container or packaging supplied by or on behalf of the Consignor or the Customer.
“Interest” means an amount that is calculated on any Outstanding Amount at the rate that is 6% above the cash rate last published by the Reserve Bank of Australia.
“Outstanding Amount” means any amount which remains unpaid upon the expiry of the credit terms extended by the Carrier or for which the Customer is otherwise liable, pursuant to these conditions, to the Carrier.
“Person” includes a corporation, company, partnerships or any other entity.
“Subcontractor” includes any Person who pursuant to a contract or arrangement with any other Person (whether or not the Carrier) performs or agrees to perform the Carriage or any part of it.
2. NEGATION OF LIABILITY AS A COMMON CARRIER
The Carrier is not a common Carrier and will accept no liability as such. All Goods are carried and other services performed by the Carrier subject only to these conditions and the Carrier reserves the right to refuse the Carriage of Goods for any Person and the Carriage of any class of Goods at its discretion.
3. CUSTOMER’S WARRANTIES
3.1 The Customer warrants that:-
3.1.1 The Goods are fit for Carriage and have been suitably packaged for those purposes.
3.1.2 The Customer has the authority of all Persons owning or having any interest in the Goods to engage the Carrier on their behalf.
3.1.3 The Customer has effected and will maintain a policy of insurance to cover any loss of or damage to the Goods during Carriage.
3.1.4 The details of description, items, pallet space, quantity, weight, quality, value and measurements supplied by the Customer or any other Party are correct.
3.1.5 There is a suitable practicable road and approach for the Carrier and the Carrier’s vehicles to the place from where the goods are to be collected and the place to which the Goods are to be delivered.
3.1.6 The place from which any Goods are to be collected and delivered will have safe and adequate loading facilities and equipment available.
3.2 The Customer:-
3.2.1 Acknowledges that the Carrier has no responsibility or liability in relation to any pallet used for Carriage.
3.2.2 Must ensure that pallets are transferred from and to any relevant hire accounts and that any necessary documentation is signed and delivered to the applicable pallet hire company.
3.2.3 Releases and indemnifies the Carrier from and against any liability in relation to the loss of pallets or failure of any Party to transfer pallets on or off any hire account.
3.3 The Carrier relies on the details of description, items, pallet space, quantity, weight, quality, value and measurements supplied by the Customer but does not admit their accuracy.
3.4 The Carrier accepts no responsibility for collection or cash or other payments from any Party.
3.5 The Customer undertakes to indemnify the Carrier in respect of any liability whatsoever in respect of the Goods to any Person who claims to have, who has, or who in the future may have any interest in the Goods or ant part of the Goods.
4. RIGHT TO SUBCONTRACT
The Carrier at its discretion may subcontract on any terms the whole or any part of the Carriage and the terms of these conditions will shall extend to any Subcontractor.
5. LIABILITY OF CARRIER
5.1 The Customer acknowledges and agrees that neither the Carrier nor any servant or agent or Subcontractor nor any Person who undertakes the Carriage of the Goods at anytime pursuant to these conditions will in any circumstance (except where any statute otherwise requires) be under any liability whatsoever (whether in contract, tort or otherwise) for:-
5.1.1 Any loss of or damage to, deterioration, evaporation or contamination of the Goods; or
5.1.2 Mis-delivery, delay in delivery or non delivery of the Goods or any part of them;
Whether in the course of Carriage or otherwise including where such loss, damage, deterioration, evaporation, contamination or mis-delivery, delay in delivery or non-delivery is caused by or alleged to have been caused by the negligence of the Carrier or its officers, servants, agents or Subcontractors.
5.2 The Carrier will be entitled to the benefit of exclusion of liability provided for in clause 5.1 even if it is proved that the loss or damage resulted from an act of omission done with intent to cause damage, or recklessly and with knowledge that damage may result.
5.3 Notwithstanding any other condition, the Carrier will under no circumstances be liable for Consequential Loss.
6. DELIVERY
The Carrier is authorised to deliver the Goods at the address nominated by the Customer for that purpose. The Carrier will be conclusively presumed to have delivered the Goods in accordance with these conditions if at that address it obtains from any Person a receipt or signed delivery docket for the Goods.
7. DELAY IN LOADING OR UNLOADING
The Customer will be and remain responsible to the Carrier for all its proper charges incurred for any reason. A charge may be made by the Carrier in respect of any delay in excess of 30 minutes in loading or unloading occurring other than from the default of the Carrier. Such permissible delay period will commence upon the Carrier reporting for loading or unloading.
8. CARRIER’S CHARGES
8.1 The Carrier’s charges will be deemed fully earned on receipt of the Goods by the Carrier and are non-refundable in any event.
8.2 Any special instruction given to the Customer to the effect that changes will be paid by the Consignee or any other third party will be deemed to include a stipulation that if the Consignee or third party does not pay the charges within 14 days of the date of delivery or attempted delivery of the Goods the Customer will pay such charges.
8.3 The Customer must pay any enforcement costs and interest in respect of any Outstanding Amount.
9. FORCE MAJEURE
The Carrier will not be liable for any failure or delay in performance of the Carriage if such failure or delay is due, in whole or part, to any cause whatsoever beyond its control.
10. NOTIFICATION OF CLAIM
10.1 Notwithstanding any other provision of these conditions, the Carrier will in any event be discharged from all liability whatsoever in respect of the Goods unless written notice of claim or intended claim (together with particulars of the circumstances on which the claim is based) is given to the Carrier within 2 hours of delivery of the Goods or from the time at which in the ordinary course of business, delivery would have been effected.
10.2 The Carrier will, in any event, be discharged from all liability whatsoever in respect of the Goods unless suit is brought within 12 months of their delivery or of the date on which they should have been delivered.
11. APPLICABLE LEGISLATION
Notwithstanding anything contained in these conditions, the Carrier will continue to be subject to any implied terms, conditions, guarantees or warranties imposed by the Competition and Consumer Act 2010 (Cth) or any other Commonwealth or New South Wales state legislation in so far as such may be applicable and prevents the exclusion or modification of any such term, condition, guarantee or warranty.
12. ENTIRE AGREEMENT
12.1 These conditions set out the entire agreement of the parties with respect to its subject matter. No other agreement, warranty or representation, express or implied has been given or made by the parties with respect to the Carriage of Goods.
12.2 The Carrier will not be bound by any agreement purporting to vary these conditions unless such agreement is in writing and signed on behalf of the Carrier by an authorised officer of the Carrier.