1 Application of conditions
1.1 These conditions apply to the Services we perform for you, or a Subcontractor performs for you. They also apply to any work we have to do, or reasonably do, in addition to the work we quote for.
1.2 These conditions continue to apply despite any breach by us or a Subcontractor, even if the breach is of a fundamental term.
1.3 We are not a common carrier. We do not accept liability as a common carrier. We may refuse to carry or deal with any Goods.
1.4 You warrant that, when you give us or a Subcontractor Goods for carriage or storage, you are acting as agent for each person who has an interest in the Goods. Each of them is a party to the contract and is bound by these conditions in the same way as you are.
1.5 You also warrant that, when you give us or a Subcontractor Goods for carriage or storage or Transportation Equipment for which you require Container Services to be performed, the person who signs any document containing these conditions has authority to accept these conditions on your behalf.
2 Our Services
2.1 We intend to perform the Carriage Services necessary to deliver the Goods to the place you nominate. We intend to follow any instructions you have given us in relation to the handling, storage or method of carriage. However, we are entitled to depart from those instructions (including deviating from the usual route or changing the place of storage) if we think it desirable or necessary in the circumstances.
2.2 We intend to perform the necessary Container Services promptly and carefully.
2.3 We are entitled to use a Subcontractor to perform all or part of the Services instead of us. We enter into this contract as agent or trustee for any Subcontractor used. Each of them is a party to each contract we enter into with you. This contract applies as if the Subcontractor were us. We, or a Subcontractor, may agree with a Subcontractor to any terms that that Subcontractor requires. Those terms will be binding on you. However, the Subcontractor may choose whether to rely on the terms of this contract or the terms on which it agrees to perform the Services or part of them.
2.4 We deliver the Goods when we leave them at the place you nominate. If no-one is there, we may choose whether to leave the Goods there, store them, or return them to you. If we decide to store them, or to return them to you, you must pay our reasonable charges. If you ask us to onforward Goods, we deliver them when we give them to the onforwarding agent.
2.5 A receipt from a person at the destination is proof of delivery.
2.6 We are entitled to open anything in which the Goods are placed or carried in order to inspect them to find out their nature, condition or destination, or who owns them.
2.7 If we think that the Goods are or may become dangerous or offensive, we may do anything we believe appropriate to avoid or minimise any loss, damage or offence. This includes destroying the Goods. This does not affect any other rights we may have.
3 Your payments
3.1 You must pay our charges for our Services.
3.2 In relation to the carriage or storage of Goods, if you are not told that you must pay when the Goods are received by us, you must pay within 14 days after that day. You have to pay us whatever happens to the Goods - even if they are lost, damaged or destroyed. You can arrange for someone else to pay those charges. However, you remain liable to us if they do not pay.
3.3 In relation to Container Services performed by us, you must pay us when we complete the services.
3.4 You must pay us an additional reasonable charge in each of the following cases:
(a) We or a Subcontractor have to perform Services, or reasonably perform Services, in addition to the Services we quote for.
(b) In relation to the performance of Carriage Services, the carriage is delayed for a reason that is not our fault or the fault of the relevant Subcontractor.
(c) In relation to the performance of Carriage Services , the loading or unloading of the Goods is delayed for more than 30 minutes and the delay is for a reason that is not our fault or the fault of the relevant Subcontractor.
3.5 You must also pay us for any amount (including any applicable duty, impost or tax, costs, expenses or penalty) we have to pay, or a relevant Subcontractor has to pay, in relation to the Goods or their carriage or storage. Of course, this excludes a payment for subcontracting the carriage or storage.
3.6 You must also pay us for any amount we have to pay, or a relevant Subcontractor has to pay, for any part or product purchased for the service or repair of the Transportation Equipment that becomes part of the Transportation Equipment as a result of it being serviced or repaired.
3.7 We have a lien over the Goods and any related documents or any Transportation Equipment, and over any other Goods and related documents or Transportation Equipment of yours in our possession, as security for payment of any money you owe us. We may sell the Goods or documents or Transportation Equipment without giving you notice. If we do, we are entitled to offset the amount we receive against the money you owe us. This does not affect any other rights we may have.
3.8 Should any of our charges not be paid when due -
(a) all other charges incurred by you but not yet due for payment shall become immediately due and payable;
(b) interest at the rate of 9 % per annum will accrue and become due and payable from the date when the charges were due;
(c) the costs and expenses of any collection agency to whom we refer the charges for collection, including legal fees and expenses which are incurred by the collection agency on our behalf, will become immediately due and payable
4 Your other obligations in relation to Carriage Services
4.1 You must give us an accurate description of the Goods, either by telling us or by writing on the consignment note. You must tell us if the Goods are, or may become, dangerous or offensive. If the Goods which you give us or a Subcontractor for carriage or storage are self-propelled, and need to be operated during loading or unloading, then you must make sure the Goods are mechanically sound and in good working order.
4.2 You must comply with all legal requirements, and any requirements of the person to whom we deliver the Goods, in relation to the Goods, including requirements relating to their shape, packaging, labelling and transportation.
4.3 At the end of the carriage, you must make sure that you return to their owner any containers, pallets or packaging which are delivered to us with the Goods.
4.4 A waiver of any of your obligations is ineffective unless it is in writing and signed by an officer of ours.
5 Limitations on our liability
5.1 When we perform Services for the purpose of a business, trade, profession or occupation carried on or engaged in by you, we do so entirely at your risk. No matter what the cause may be, we are not liable under any circumstances, and in relation to the performance of Carriage Services, we are not liable for delay in delivery of the Goods, misdelivery of them, or a total failure to deliver them, or for loss of the Goods or damage to them. We are not even liable for negligence by us or by a Subcontractor we use in relation to the performance of the Services, or wilful misconduct by us or any of our employees or agents or by a Subcontractor we use in relation to the performance of the Services. Nor are we liable for an act or omission that is not contemplated by our contract with you.
5.2 When we perform Services in any other case, to the extent permitted by law:
(a) our liability is limited to the lesser of $100 or the value of the Goods or Transportation Equipment at the time you gave them to us; and
(b) in relation to Carriage Services, as a condition precedent to our liability, any action must be commenced within 9 months after the date the Goods were delivered or should have been delivered; and
(c) in relation to Container Services, as a condition precedent to our liability, any action must be commenced within 9 months after the date the Transportation Equipment was given to us for transportation, handling, storage or warehousing, or for service or repair.
5.3 In the case of Services that are not of a kind ordinarily acquired for personal, domestic or household use or consumption, our liability is limited to the supply of the Services again, or the cost of the supply of the Services again.
6 Claims
6.1 If you think you have a claim against us or a Subcontractor, you must make it against us and no-one else. Notice of the claim must be in writing. It must reach us within 7 days after the date the Goods were delivered or should have been delivered. You have no claim in any circumstances against any person (including a Subcontractor) except us.
7 Your indemnity to us
7.1 You must continually indemnify us against any liability or expense we incur as a result of:
(a) a breach of these conditions by you; or
(b) in relation to the performance of Carriage Services by us, our accepting the Goods for carriage or storage that you inform us are, or may become, dangerous or offensive; or
(
c) in relation to the performance of Container Services by us, our accepting the Transportation Equipment for transportation, handling, storage or warehousing, or for service or repair, and
(d) any loss or damage another person incurs which arises out of the performance of Carriage or Container Services by us.
8 Jurisdiction
8.1 The contract between you and us is governed by the law of New South Wales regardless where it was entered into. A proceeding in respect of any matter or thing dealt with by these conditions must only be instituted in New South Wales.
9 Definitions
In this conditions the following definitions apply:
We means Hi-tech Express Holdings Pty Ltd.
Goods includes any mobile equipment, and any container, pallet or packaging which the goods are in or on.
Carriage Services means the whole of the services performed by us or a Subcontractor, including storing and carrying the Goods, towing them, loading and unloading them, warehousing them, dismantling, detaching, assembling, and installing them; liaising with third parties, arranging any necessary permits or authorisations; giving advice or information as to the amount or rate of any applicable duty, impost or tax or the liability to pay any duty, impost or tax; and delivering the Goods to a Subcontractor.
Container Services means the transportation, handling, storage or warehousing of Transportation Equipment; the servicing of, and carrying out of repairs on, Transportation Equipment; the performance of transport engineering services on Transportation Equipment; and any other associated activity.
Services means Carriage Services or Container Services.
Subcontractor means any person (including a person operating a railway) we use to perform all or part of the Services instead of us, and any person who is a servant, agent or subcontractor of such a person.
Transportation Equipment means equipment used for the carriage or storage of goods and includes trailers, containers or pallets.
