Please read all the following conditions carefully. You will be bound by these conditions if we provide services at your request or on your behalf. Please note that:
- Our services are priced based on the exclusions and limitations set out in these conditions;
- To the extent permitted by law, we will not be liable for any loss of or damage to goods, unless the loss or damage was caused by our proven negligence or wilful misconduct;
- The conditions provide for various exclusions of liability and limits on our liability for loss of or damage to goods. These exclusions and limits are set out in clause 6;
- The effect of these provisions is that, even if we have been negligent, our liability is limited to
$5,000 per incident and therefore you may not be able to recover the full value of any lost or
damaged goods. If you want to negotiate for us to have a higher limit of liability with respect to your goods, you should contact us;
- Because of these considerations, we recommend that any goods are covered by an
appropriate insurance policy taken out by you, or by the owner of the goods; and
- If we store goods for you, you must take out a policy of insurance over those goods (see
clause 11).
TRADING CONDITIONS
1. DEFINITIONS AND INTERPRETATION
1.1 In these conditions:
Business Day means a day other than a Saturday, Sunday or public holiday in Canberra, Australian
Capital Territory.
Carrier means TwentyNine Transport Pty Ltd (ABN 59 666 206 417) trading under its own name, under the business name Iannelli Bros Transport or under any other business name.
Chain of Responsibility Law means the Heavy Vehicle National Law as enacted in any Australian
state, the Road Traffic (Administration) Act 2008 (WA) and the Road Traffic (Vehicles) Act 2012 (WA) and any other Commonwealth, state or territory Law dealing with the obligations of parties involved in the transport of goods by road.
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; wasted expenditure; loss of profit, revenue or anticipated revenue; loss of bargain, contract, expectation or opportunity; liquidated damages; punitive or exemplary damages; in each case arising from or in connection with the performance of the Services and whether or not foreseeable at the time of entering into any agreement incorporating these conditions.
Consignee means the person to whom Goods are, or are to be, delivered.
Container includes any container, trailer, wagon, transportable tank, pallet, flat rack or any other
unit or device used to consolidate Goods.
Customer means the person whose details are set out in the table that appears at the end of this document.
Damage means physical damage and includes deterioration, evaporation and contamination.
Dangerous Goods means Goods that are or may become noxious, dangerous, flammable or damaging or that may harbour or encourage vermin or other pests, or that are or may become liable to harm any property whatsoever
1.2 In these conditions:
(a) a reference to a person is to be construed as a reference to an individual, body corporate, unincorporated association, partnership, joint venture or government body;
(b) headings are included for convenience only and do not affect the interpretation of these conditions;
(c) words importing the singular include the plural and vice versa and words importing a gender include other genders;
(d) where a word or phrase is defined, other parts of speech and grammatical forms of that word or phrase have corresponding meanings;
(e) wherever ‘include’ or any form of that word is used, it will be construed as if it were followed by ‘(without being limited to)’; and
(f) all indemnities survive the termination or expiration of any agreement incorporating these conditions.
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 all Services are performed by the Carrier subject only to these conditions and the Carrier reserves the right to refuse, in its discretion, to provide Services in respect of any goods.
3. CARRIER’S OBLIGATIONS
3.1 The Carrier will:
(a) take reasonable care to protect and safeguard the Goods and to follow any special handling requirements notified to the Carrier by the Customer;
(b) provide the Services exercising the degree of skill, care and efficiency that would be expected from a competent provider of Services;
(c) to the extent the Services comprise Storage, account for all Goods received and use modes of Storage appropriate to the nature of those Goods;
(d) at its own expense, hold all licences as may be required by Law in connection with the Services;
(e) use reasonable endeavours to deliver the Goods to the address nominated by the Customer and to effect delivery at the date and time requested by the Customer (subject to compliance with all Law, including Chain of Responsibility Law); and
(f) use reasonable endeavours to comply with the Customer’s reasonable and lawful directions.
3.2 To the extent permitted by Law, all conditions, guarantees, terms and warranties which would otherwise be imposed or implied into these conditions are excluded. Without limitation, this exclusion applies to any conditions, guarantees, terms or warranties of merchantability or of satisfactory quality applying to the Services.
4. WARRANTIES AND INDEMNITIES
4.1 The Customer warrants that:
(a) the Goods are in a fit state to allow the Services to be performed and are packed in a manner adequate to withstand the ordinary risks associated with the Services;
(b) the Goods within any Container are adequately restrained in accordance with the Load Restraint Guide published by the National Transport Commission;
(c) any refrigerated Goods are supplied to the Carrier at a temperature suitable to allow the Services to be performed;
(d) where the Goods require temperature control, it has provided written notice to the Carrier of the temperature range to be maintained;
(e) it is authorised by all persons owning or having any interest in the Goods to accept these conditions on their behalf;
(f) all details supplied by the Customer or any other party with respect to the Goods, including the details of description, items, pallet space, quantity, weight, volume, quality, value and measurements, are correct;
(g) there is a suitable and safe road and approach for the Carrier and the Carrier’s vehicles to the place from which the Goods are to be collected and the place to which the Goods are to be delivered;
(h) safe and adequate loading facilities and equipment will be available at any place from which any Goods are to be collected and to which any Goods are to be delivered;
(i) Services are supplied for the purpose of a business, trade, profession or occupation carried on or engaged in by the Customer and Consignee; and
(j) unless specifically declared in writing prior to the provision of Services, the Goods are not Dangerous Goods.
4.2 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.
4.3 The Customer 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. No pallets will be transferred to the account of the Carrier except with the Carrier’s prior written consent.
4.4 The Customer acknowledges and agrees that these conditions set out the sole basis upon which the Carrier will provide Services to the Customer. The supply or provision by the Customer of any document setting out other, or alternative, terms will be of no legal effect and will not constitute a variation of these conditions or amount to a new contract or be part of these conditions.
5. SUBCONTRACTING
5.1 The Carrier, at its discretion, may subcontract on any terms the whole or any part of the Services.
5.2 If the Carrier subcontracts any Services, the Carrier:
(a) will not be relieved of any of its liabilities or obligations under any agreement incorporating these conditions; and
(b) will be liable to the Customer for any act or omission of the Subcontractor as if such act or omission were the act or omission of the Carrier.
5.3 Every exemption, limitation, condition and liberty contained in these conditions and every right, exemption from liability, defence and immunity applicable to the Carrier or to which the Carrier is entitled under these conditions will also be available to and will extend to protect:
(a) all Subcontractors;
(b) every employee or agent of the Carrier or of a Subcontractor; and
(c) all persons who are or are found to be vicariously liable for the acts or omissions of any person falling within clauses 5.3(a) or 5.3(b).
5.4 For the purposes of clause 5.3 the Carrier is or will be deemed to be acting as agent or trustee on behalf of and for the benefit of all such persons and all such persons will to this extent be, or be deemed to be, parties to any agreement incorporating these conditions.
6. LIABILITY OF CARRIER
6.1 To the extent permitted by Law, the Carrier will not, under any circumstances, be liable (whether in contract, tort, bailment or otherwise), for any:
(a) loss of the Goods;
(b) Damage to the Goods; or
(c) misdelivery, delay in delivery or non-delivery of the Goods, whether in the course of Services or otherwise, unless the loss, Damage, misdelivery, delay in delivery or nondelivery was caused by the proven negligence of the Carrier.
6.2 Any liability of the Carrier under clause 6.1 will be reduced proportionately to represent the extent to which the Customer or any other person’s negligent or wrongful acts or omissions caused the loss, Damage, mis-delivery, delay in delivery or non-delivery of the Goods.
6.3 Notwithstanding any other provision of these conditions, to the extent permitted by Law, the Carrier will not be liable for any loss of or Damage to Goods caused by:
(a) a Force Majeure Event;
(b) the Carrier following the Customer’s instructions;
(c) the Goods becoming infected or contaminated with any virus, bacteria, fungi, pathogen, disease, mould, vermin or like condition;
(d) vibration, road conditions, weather or weather events of any kind whatsoever, including stone, rain, hail or storm damage;
(e) the Goods being inherently defective or in such a condition that the Services cannot be performed without Damage;
(f) a decline in value or loss of value as a result of the Goods becoming past their ‘use by’ or expiry date, or having a reduced shelf life as a result of becoming closer to reaching their ‘use by’ or expiry date;
(g) the inherent vice or the nature of the Goods; or
(h) insufficiency or unsuitability of packing or preparation of the Goods to withstand the ordinary incidents associated with the Services.
6.4 Notwithstanding any other provision of these conditions, to the extent permitted by Law, the Carrier will not be liable for Consequential Loss.
6.5 Notwithstanding any other provision of these conditions, to the extent permitted by Law, the maximum aggregate financial liability of the Carrier in relation to or in any way connected with any loss of Goods or Damage to Goods, or misdelivery, delay in delivery or non-delivery of Goods is limited to $5,000 for each incident. For the purposes of this subclause, ‘incident’ means any event which results in loss of, or Damage to Goods or misdelivery, delay in delivery or non-delivery of Goods, and all claims that result from the one original cause will be considered, for the purpose of this subclause, to have arisen from the same incident.
6.6 The limitation of liability set out in clause 6.5 does not apply to the extent that any loss of or Damage to Goods is caused by the Carrier engaging in malicious conduct, deliberate or wilful misconduct, fraud or criminal conduct.
7. ROUTE AND DEVIATION
7.1 The Customer authorises any deviation from the usual route or manner of the provision of Services that may, in the opinion of the Carrier, acting reasonably, be considered desirable or necessary in the circumstances.
7.2 If the Customer expressly or impliedly instructs the Carrier to use, or it is expressly or impliedly agreed that the Carrier will use a particular method of handling or Storing the Goods, or a particular method of providing or performing the Services, the Carrier will give priority to that method but if it cannot conveniently be adopted by the Carrier, the Customer authorises the Carrier, acting reasonably, to handle, Store or carry or to have the Goods handled, Stored or carried by another method or methods.
8. INSPECTION
8.1 The Carrier:
(a) is not obliged to carry out any inspection of the Goods; and
(b) may inspect the Goods (including opening any Container) to determine the nature or condition of the Goods or for any other purpose which the Carrier considers reasonably necessary.
8.2 If, under Law, a Container must be opened to allow the Goods to be inspected, the Carrier will not be liable for any loss, Damage or delay incurred as a result of any opening, unpacking, inspection or repacking (unless such loss, Damage or delay was caused by the proven negligence or wilful misconduct of the Carrier) and the Customer agrees to pay the Carrier’s charge for the cost of any such opening, unpacking, inspection or repacking.
8.3 If the Customer makes a claim that Goods have been Damaged or destroyed while in the custody of the Carrier, the Customer must, on request, permit the Carrier to inspect those Goods.
9. DELIVERY
9.1 The Carrier is authorised to deliver the Goods at the address nominated to the Carrier for that purpose. The Carrier will be deemed to have delivered the Goods if, at that address, it obtains from any person a receipt or signed delivery docket for the Goods.
9.2 If, without advance notice to the Carrier, the nominated place of delivery is unattended or if delivery cannot otherwise be effected by the Carrier or the Consignee otherwise fails to take delivery of the Goods, the Carrier must contact the Customer to obtain alternative instructions for delivery. The Carrier may make an additional charge for following the alternative instructions.
9.3 If the Carrier is unable to obtain alternative instructions, the Carrier may, at its option:
(a) deposit the Goods at the nominated place of delivery (which will be conclusively presumed to be due delivery under these conditions); or
(b) Store the Goods.
9.4 If the Goods are Stored by the Carrier pursuant to clause 9.3:
(a) the Customer will pay or indemnify the Carrier for all costs and expenses incurred with respect to such Storage; and
(b) the Carrier may, at any time, redeliver the Goods to the Customer at the Customer’s expense.
10. STORAGE
10.1 Where Goods are Stored by the Carrier at the request of the Customer, the Customer will provide:
(a) an address to which notices will be sent;
(b) samples of the signatures of persons entitled to collect the Goods; and
(c) an inventory of the Goods to be Stored.
10.2 The Carrier may remove the Goods from a place of Storage to another place of Storage in the same city at its discretion.
10.3 Storage charges do not include removing, packing, unpacking, inspecting, stowing, restoring or delivering.
10.4 The Customer must give 48 hours’ notice to the Carrier of its intention to remove Goods from Storage.
10.5 The Carrier will not be obliged to allow an inspection of the Goods or to deliver up any Goods in Storage:
(a) to any person other than the Customer or a person authorised in writing by the Customer; or
(b) in circumstances where any amount is due by the Customer to the Carrier on any account whatsoever.
10.6 If the Customer seeks to remove Goods from the Carrier’s place of Storage, the Customer must provide the Carrier with a written request to despatch Goods at least two Business Days’ prior to the expected despatch of the Goods from the Carrier’s place of Storage, with such request to include details of Goods to be despatched, adequate means to identify the person authorised to collect the Goods, or the Consignee of the Goods (as the case may be) and such other details as the Carrier, acting reasonably, may require.
10.7 The Customer will remove its Goods from Storage within seven days of receipt of written notice from the Carrier.
10.8 If any identifying document or mark is lost, damaged, destroyed or defaced, the Carrier may open any document, wrapping, package or other container in which the Goods are placed or carried to inspect them either to determine their nature or condition or to determine their ownership.
11. INSURANCE
If the Carrier Stores Goods, the Customer must:
(a) effect and maintain an insurance policy in its own name that covers loss of or Damage to the Goods while the Carrier is providing Storage with respect to the Goods with that insurance policy to include a waiver of subrogation with respect to any claim against the Carrier; and
(b) provide a certificate of currency in respect of the policy referred to in clause 11(a), within seven days of receiving a request from the Carrier.
12. DEFAULT AND CONSEQUENCES OF DEFAULT
Without prejudice to any other remedies the Carrier may have, if at any time the Customer is in material breach of any obligation under any agreement incorporating these conditions (including those relating to payment), the Carrier may suspend or terminate the supply of Services to the Customer.
13. LIEN
13.1 The Goods are accepted subject to a general lien for all charges due or that may become due to the Carrier by the Customer on any account whatsoever, whether in respect of the Goods or in respect of any other goods for which the Carrier provides or has provided Services.
13.2 Without prejudice to any other rights the Carrier may have under Law, if charges remain unpaid for more than fourteen (14) days after they become due, or the Goods are not collected when required or designated, the Carrier may:
(a) remove all or any of the Goods and store them as the Carrier, acting reasonably, thinks fit at the Customer’s risk and expense; or
(b) without notice and immediately in the case of perishable Goods, or otherwise on the provision of fourteen (14) days’ notice, open and sell all or any of the Goods as the Carrier thinks fit (whether by private treaty or public auction, including auction on an internet based platform) and apply the proceeds to discharge the lien and costs of sale and pay any balance to the Customer.
13.3 The parties agree that the lien arising under these conditions:
(a) attaches to the Goods when the Goods are accepted by the Carrier; and
(b) is a security interest.
13.4 On request by the Carrier, the Customer must promptly do anything for the purposes of ensuring that any security interest created under, or provided for by, these conditions is enforceable, perfected (including perfection by registration), maintained and is otherwise effective.
13.5 The parties agree that, to the extent permitted by the PPSA:
(a) sections 95, 118, 121(4), 125, 130, 132(3)(d), 132(4), 135, 142 and 143 of the PPSA do not apply (unless the Customer is otherwise notified in writing by the Carrier); and
(b) any right to receive a notice, statement or verification statement under sections 129, 130, 132, 134,135 or 157 of the PPSA is waived.
13.6 Terms used in this clause have the same meaning as under the PPSA.
14. CARRIER’S CHARGES
14.1 The Customer agrees to pay all sums due to the Carrier without any deduction, counterclaim or setoff.
14.2 The Carrier’s charges are due within the credit terms agreed in writing between the Customer and the Carrier. If the Carrier has not agreed to any credit terms, the charges are payable on delivery of the Goods. If the Customer defaults in making any payment in accordance with these conditions, then all amounts owed to the Carrier will immediately become due and payable.
14.3 In addition to any other charges contemplated under these conditions, the Customer is liable to pay:
(a) Interest on any Outstanding Amount;
(b) all Storage, handling, stocktaking and reporting charges and any costs associated with loading or unloading Goods;
(c) any fuel levy imposed, which may be adjusted by the Carrier at any time on reasonable grounds to reflect fuel price movements; and
(d) all charges under Law in relation to the Services.
14.4 The Carrier may charge the Customer, in accordance with its schedule of rates, in respect of any delay occurring other than from the default of the Carrier. Such permissible delay period will commence upon the Carrier reporting for loading or unloading. Labour to load or unload is the responsibility and expense of the Customer or Consignee.
14.5 If the Customer instructs the Carrier that the Carrier’s charges will be paid by the Consignee or any
other third party and the Consignee or third party does not pay the Carrier’s charges within seven Trading Conditions 9 days of the date of delivery or attempted delivery of the Goods, the Customer must pay such charges.
14.6 Where the Carrier Stores Goods for the Customer, the Customer must:
(a) pay the Carrier’s expenses and charges to comply with any Law including any customs, excise or warehouse charges;
(b) supply or pay for labour or machinery, or both, to load or unload the Goods; and
(c) if the Goods are at any time re-quantified, re-weighed or re-measured, pay any proportional additional charges.
15. DANGEROUS GOODS
15.1 If the Carrier agrees to provide Services with respect to Dangerous Goods:
(a) such Goods must be accompanied by a written declaration disclosing the nature of such Goods; and
(b) the Customer must comply with all Law with respect to Dangerous Goods, including the Australian Code for the Transport of Dangerous Goods by Road & Rail.
15.2 If, in the opinion of the Carrier, acting reasonably, the Goods are or are liable to become of a dangerous or flammable or damaging nature and pose a threat of property damage or personal injury, the Goods may at any time be destroyed, disposed of, abandoned or rendered harmless without compensation to the Customer and without prejudice to the Carrier’s right to charge for the Services.
16. FORCE MAJEURE EVENT
16.1 If, because of a Force Majeure Event, the Carrier is unable to carry out an obligation under any agreement incorporating these conditions:
(a) the Carrier must give the Customer prompt written notice and reasonable particulars of the Force Majeure Event and, so far as is known, the probable extent that the Carrier will be unable to perform or be delayed in performing its obligation; and
(b) the relevant obligations of the Carrier and the Customer (other than any obligation of the Customer to pay money), so far as they are affected by the Force Majeure Event, will be suspended during the continuance of the Force Majeure Event.
16.2 If the Carrier gives a notice under clause 16.1, the parties must meet promptly and, in any event within 14 days, and each use reasonable endeavours to reach a mutually acceptable solution to alleviate any hardship or unfairness caused to either party as a result of the Force Majeure Event.
17. NOTIFICATION OF CLAIM
17.1 Notwithstanding any other provision of these conditions (other than clause 18), to the extent permitted by Law, the Carrier will be discharged from all liability whatsoever in respect of the Goods unless written notice of a claim or an intended claim (together with particulars of the circumstances on which the claim is based) is given to the Carrier:
(a) in the case of Goods allegedly lost or Damaged in the course of loading, unloading or transit, within 14 days from the delivery of the Goods or from the date on which in the ordinary course of business, delivery would have been effected; or
(b) in the case of Goods allegedly lost or Damaged during Storage, within 14 days of the date of removal or attempted removal of the Goods from Storage.
17.2 The Customer acknowledges that the purpose of clause 17.1 is to allow the Carrier an opportunity to promptly investigate the cause of any loss or Damage. Clause 17.1 will not apply if the Customer has a reasonable excuse for its failure to give written notice.
18. APPLICABLE LEGISLATION
18.1 Notwithstanding anything contained in these conditions, the Carrier will continue to be subject to any terms, conditions, guarantees or warranties imposed or implied by the Competition and Consumer Act 2010 (Cth) or any other Commonwealth or state legislation but only in so far as such legislation applies and prevents the exclusion or modification of any such term, condition, guarantee or warranty.
18.2 The Carrier, Customer and Consignee must comply with all Law, including Chain of Responsibility Law.
18.3 The Customer must not impose any requirement on the Carrier that would directly or indirectly encourage or require the Carrier or any person on behalf of the Carrier to speed, drive while fatigued or otherwise perform the Services in an unsafe manner or in breach of Law.
19. ENTIRE AGREEMENT
19.1 The entire agreement between the parties is contained in these conditions and there are no other understandings, representations or agreements between the parties that are not set out in these conditions.
19.2 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.
20. GENERAL
20.1 This agreement will be construed in accordance with the law in force in the Australian Capital Territory and the parties irrevocably and unconditionally submit to the non-exclusive jurisdiction of the courts of the Australian Capital Territory and courts entitled to hear appeals from those courts.
20.2 The failure of a party to take action to enforce its rights under any agreement incorporating these conditions or the granting of any time or indulgence will not be construed as a waiver of the provision nor as a waiver of the right of the party at a later time to enforce its rights under any agreement incorporating these conditions.
20.3 Where the Customer comprises two or more persons, an agreement or obligation to be performed or observed by the Customer binds those persons jointly and severally.
20.4 If any provision of these conditions is invalid, illegal or unenforceable, that provision will, to the extent that it is invalid, illegal or unenforceable, be treated as severed from this agreement, without affecting the validity and enforceability of the remaining provisions.