Terms and Conditions this contract,
For the Transit of goods By the Trustee for D and M Lobegeiger Trust
1. In these Conditions.
1.1 “Carrier” shall mean Trustee for D and M Lobegeiger Trust, its servants and Agents.
1.2 “Sub-Contractor” shall mean and include any other person, firm or company with whom the carrier may arrange for the carriage of any goods that are subject of this contract, and any person who is now or here after a servant, agent, employed or sub-contractor of any such persons.
1.3 “Chargor” means the Consingor, Consignee or owner of the goods.
1.4 “Secured Money” means all monies and charges owed to the carrier from the Chargor-
1.4.1 for the carriage and /or storage or any other proper charges or expenses upon or in connection with the goods; and
1.4.2 for any service rendered or accommodation provided by the Carrier to the Chargor; and
1.4.3 all monies owing by the Chargor to the Carrier for any services provided, obligation incurred or damage suffered
1.5.”Consignor” means the person or company arranging for the transport of the goods.
1.6.”Consignee” means the person or company to whom the goods are to be delivered.
1.7 “Secured Property” means any legal or equitable estate or interest of the Chargor in any present and future undertaking and property, including without limitation ,all real and personal property, chooses in action, goodwill and unpaid called or uncalled capital;
2. The Carrier is not a common carrier and accepts no liability as such. All articles are carried or transported, and all storage and other services are provided by the Carrier, subject only to these conditions. The Carrier reserves the right to refuse the carriage or transport of articles for any person, corporation or company, or the carriage or transport of any class of article at its discretion
3. The Consigner hereby authorises the Carrier (at the discretion of the Carrier) to arrange with the sub-contractor for the carriage of any goods the subject of this contract. Any such arrangement shall be deemed to be ratified by the Consignor upon the delivery of the said goods to such sub- contractor, who shall there upon be entitled to the full benefit of these terms and conditions to the same extent as the carrier. Insofar as it may be necessary to ensure that each such sub-contractor shall be so entitled, the Carrier shall be deemed to enter in to this Contract as agent for the sub-contractor and the Consignor shall be deemed to have entered into a contract of carriage with the sub-contractor.
4. Any person, firm or company who consigns goods to the Carrier shall be deemed to be the Owner of the goods or the agent for the owner, and will bind the Owner in accordance with the terms of this Contract.
5. The Carrier may carry all goods or have them carried or onforwarded by any method which the carrier in its absolute discretion deems fit and not withstanding any instructions verbal or otherwise that the goods are to be carried by a certain mode, although the Carrier will give priority to the method so designated.
6. Unless otherwise agreed in writing, the carrier shall be under no liability, whatsoever, whether in tort, Contract or otherwise, for any loss (including consequential loss) of, or damage to or deterioration of goods, or misdelivery, or failure to deliver, or delay in delivery of goods either in transit or in storage for any reason whatsoever. The Carrier is authorised to deliver the goods to the address given to the Carrier by the Consigner for the purpose of delivery, or at any address which either the Consignor or Consignee conducts a business or carries out work. The carrier is not obliged to obtain a signature upon delivery.
7. The Consignor shall hold harmless and keep the carrier indemnified against all claims and demands whatsoever, by whomsoever made in respect of any loss damage or injury however caused ,whether or not by negligence or wilful act or omission of the Carrier, its servants, agents or sub-contractors under this contract.
8. The carrier will not effect any insurance for the goods for the benefit of the Consignor or otherwise.
9. In the event of a Consignor making a claim against the Carrier, the Carrier may at its sole discretion without admission choose to pay the Consignor an amount not exceeding $AUD400.Any payment made to the Consignor under this provision is made in full and final satisfaction and discharge of any liability the Carrier may have to the Consignor.
10. The Carriers charges pursuant to this contract shall be deemed fully earned as soon as the goods are loaded and dispatched from the Consignor’s premises, and shall be payable and non-refundable in any event.
11. The Consignor will be and remain responsible to the Carrier for all its proper charges incurred for any reason. A fee may be charged at the absolute discretion of the Carrier in respect of any delay in excess of (30)mins in loading or unloading occurring other than from the default of the Carrier where the Carrier collects goods from the Consignor or delivers goods to the Consignee respectively. Such permissible delay period shall commence upon the Carrier reporting for loading or unloading. Labour to load or unload the Carriers vehicle shall be the responsibility and expense of the Consignor or the Consignee.
12. Goods are received and held by the Carrier subject to:-
12.1 A lien for monies due to the Carrier for the carriage and /or storage or any other proper charges or expenses upon or in connection with the goods; and,
12.2 A general lien for all monies or charges due to the Carrier from the Consignor ,Consignee ,or the owner of such goods for any services rendered or accommodation provided by the Carrier to the Consignor ,Consignee or owner.
13. Where any lien remains unsatisfied with (7) days of the date of which the Carrier gave notice of the exercise of his lien pursuant to Clause 12,the goods may at the Carriers discretion be sold at any public auction or private treaty and the proceeds of sale applied in or towards the satisfaction of any such lien and all proper charges and expense in relation thereto (including the expenses of the sale)and the Carrier shall account to the Consignor ,Consignee or the Owner for the goods for any surplus.
14.1 The Chargor charges the Secured Property to the Carrier to secure the payment of the Secured Money.
15.1 The Carrier shall at the request of the Chargor discharge any charge created by this document if the Chargors obligations to pay the Secure Money is likely to be void or voidable under any law relating to bankruptcy.
16. Nature of Charge:-
16.1 The charge created by this document is a fixed charge in relation to the whole of the secured property
17.1 Each of the following is an event of default
17.1.1 The Chargor does not pay the Secured Money in accordance with this document; or
17.1.2 The Bankruptcy, Receivership or Administration of the Chargor.
18. Default powers:-
18.1 The Carrier may at any time after an event of default has occurred, exercise any or all of its rights as Secured Carrier set out in this clause in any manner and at any time
18.2 The Carrier may
18.2.1 take possession or control of the secured property
18.2.2 submit a caveat over any real property;
18.2.3 apply to the court for an order permitting the sale of any real property encompassed within the Secured Property
18.2.4 sell the Secured Property and without limitation any sale maybe –
18.2.5 by private treaty, publication, tendor or as otherwise specifically directed by the court
18.2.6 together with the sale of any other property by any other person, and
18.2.7 upon terms and conditions that the Carrier thinks fit
19. Proceeds of Sale
19.1 the proceeds of any sale must be applied
19.1.1 First, towards any monies owing by the Chargor to any person who is the holder of a security interest ranking in priority to the security interest created by this document.
19.1.2 Second, towards all costs and expenses of the Carrier incurred in exercising any of the rights given to it by this agreement,
19.1.3 Finally, towards the Secured money which is owed by the Chargor to the Carrier under this or any other agreement.
19.2 Any surplus from the proceeds of any sale must be accounted for by the Carrier to the Chargor.
20. If the carrier accepts dangerous goods for carriage such goods must be accompanied by a full declaration of their contents and be properly and safely packed in accordance with statutory regulations applicable to the carriage of those goods. A surcharge applies for the carriage of dangerous goods.
21. The Consignor shall indemnify the carrier 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 Consignor was aware of the nature of the goods.
22. The Consigner warrants that the goods are packed in a manner to withstand the ordinary risks of carriage having regard to the nature of the goods and in compliance with all laws and regulations which may be applicable to the carriage of the goods.
23. Any storage of goods shall be as agent for the Consignor and solely at the Consignor’s risk and expense, but the provisions of Clause 6 hereof shall never the less apply.
24. At the Carriers 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.
25. Dangerous goods held by the Carrier for storage shall be subject to the indemnity given by the Consignor in respect to dangerous goods in clause 21 hereof
26. It is agreed that the person delivering any goods to the Carrier for carriage or forwarding is authorised to sign this document on behalf of the Consignor.
27. The consignor expressly warrants that the Consignor is either the owner or the authorised agent of the owner of any goods or property the subject matter of this contract. By entering into this contract the Consignor accepts these conditions of contract for the Consignee as well as for all other persons on whose behalf the Consignor is acting
28. Without derogating from Clause 5 above, the carrier shall not be liable for any loss of market, loss of use, consequential loss, concealed damage or damage caused by the inherent nature of the goods or merchandise carried, either in transit or in storage and whether caused by the negligence, wrongful act or default of the Carrier, or by any other case whatsoever.
29. It is expressly agreed that all the rights, indemnities and limitation of liability granted to the Carrier by the provisions set out by the terms and conditions of this contract, shall continue to have their full force and effect in all circumstances, and notwithstanding any breach of the Contract or any of the terms and conditions hereof by the carrier.
30 The Consignor shall be deemed to authorise any deviation from the usual route or manner of carriage of goods which may in the absolute discretion of the Carrier be deemed reasonable or necessary in the circumstances.
31. Whereby express agreement or operation of law the Carrier becomes responsible for any damage to goods, no claim for such damage shall be allowed unless lodged in writing at an office of the Carrier in the state of which delivery was effected, within 72 hours after such delivery. It is expressly agreed that the lodgement of such claim within 72 hours of delivery of goods, shall be a condition precedent to the right of the Consignor, Consignee or other person beneficially entitled to the goods, to claim against the Carrier in respect of any liability to which the carrier might be liable.
32. This agreement contains the entire understanding of the parties as to its subject matter. There is no other understanding, agreement, warranty or representation, whether express or implied in any way, defined or extending to or otherwise relating to these provisions that is binding on the parties with respect to the storage and carriage of the goods to which this agreement relates.
33. Not withstanding anything herein contained, the Carrier shall continue to be subject to any condition or warranty implied by the Trade Practises Act 1974(CTH) if and to the extent that the said Act is applicable to this agreement and prevents the exclusion, restriction or modification of any such condition or warranty.
34. Rates will be calculated on weight or measurement, whichever is greater.
35. Weight of pallets will be included in calculating chargeable weights (one standard pallet equals 50kg)
36. Uncrated machinery will be measured to a minimum height of 2.4m.
37. Vehicle load capacity is 14.5 tonne and full loads will be deemed to have this weight.
38. Pallets remain the responsibility of the Consignor and will not be exchanged unless prior agreements have been made with the carrier. Hired pallets will not be accepted by the carrier.