- Definitions
Agreement and Agreement Documents means these terms and conditions of trade, the Consignment note,
credit application and any other guarantees, executed by the parties.
Claim means an assertion of a cause of actions by one person against another in the Court of Law.
Carriage refers to the service provided by the Carrier for the transportation of goods from one location to another.
Carrier refers to Project Haulage Australia Pty Limited (ABN 21 663 033 412).
Consignor refers to you, being the customer enlisting Project Haulage Australia’s service’s, who’s details appear
at the end of this document.
Guarantor refers to the person or people who agree to be responsible for this Agreement if the Consignor is
unable to be.
Internal Claim means a claim made within Project Haulage Australia Pty Limited and not at law.
Parties refers to all signatories to this Agreement.
Subcontractor means and includes:
(a) all companies which at any time become subsidiaries of the Carrier;
(b) railways or airlines operated by the Commonwealth of Australia or any State or Territory of Australia’
(c) any other person, firm or company with whom we may arrange for the carriage of any goods, the
subject of this contract;
(d) any person, firm or company who is now or hereafter a servant, agent, employee or sub-contractor of
any of the persons referred to in (a), (b) and/or (c). - Terms and Conditions Herein
2.1 These terms and conditions, the Consignment Note, Credit Application and any other Guarantees, form part of the entire agreement between the parties (‘Agreement Documents’). There are no other understandings,
representations or agreements enforceable, unless made in writing signed by all parties.
2.2 These terms and conditions shall supersede prior agreements and replace all prior agreements, understandings, written or oral between the parties.
2.3 The provision of goods or services by us to you are contingent upon the signing of the Agreement Documents referred to in part 2.1 of these terms and conditions.
2.4 Project Haulage Australia reserves the right at its sole discretion to refuse the use of its goods or services.
2.5 The terms and conditions herein are subject to change at any time, of which you will be bound. All parties will be provided with notice of the updated terms and conditions to the email address provided by you on the
agreement documents. You will be taken to have received the notice once it has been sent to the provided email address.
(a) Changes to these terms and conditions to the effect of amending a clerical error will not be subject to
notice.
2.6 Proposed amendments to these terms and conditions must be made in writing and are subject to Our approval.
All amendments must be made in writing by Us and signed by all parties. - Interpretation
3.1 This Agreement is governed by the laws of Queensland and the parties submit to the non-exclusive jurisdiction
of the Courts of that State.
3.2 If any of the provisions herein contradict relevant legislation that provision will, to the extent that it is invalid or
unenforceable be severed from this agreement, without affecting the validity and enforceability of the remaining
provisions.
3.3 All parts of this Agreement are to be read in conjunction with one another. If any of the provisions contradict
another the Carrier retains the discretion to determine which provision shall remain in force. The provisions
taken to be invalid or unenforceable is to be severed from this agreement, without affecting the validity and
enforceability of the remaining provisions. - Carrier’s Obligations
4.1 The Carrier will endeavour at all times to;
(a) provide the carriage of goods and/or services exercising a reasonable degree of skill, care and efficiency
that would be expected from a competent person providing the same Services;
(b) at its own expense, hold all licenses required by law for the goods and services the Carrier provides;
(c) if the Carrier stores the goods, the carrier will ensure the use of appropriate modes of storage; and
(d) use reasonable endeavours to comply with the lawful and reasonable directions/requests of the Consignor.
4.2 The Carrier does not warrant or guarantee particular collection or delivery times.
4.3 To the extent permitted by law, all conditions, guarantees, terms and warranties which would otherwise be
implied into these conditions are excluded.
4.4 Without limitation the exclusion described in clause 4.3 applies to any conditions, guarantees, terms or
warranties of merchantability or of satisfactory quality applying to the provision of goods and/or services. - Consignor’s Obligations warranties, and indemnity
5.1 The Consignor must;
(a) where the goods are dangerous goods, provide written notice and full declaration to the Carrier and
otherwise comply with Clause 12 (Dangerous Goods);
(b) where required by law, provide an accurate container weight or upon the request of the Carrier;
(c) where the goods require special handling or treatment, provide written notice to the Carrier of the
requirements; and
(d) provide all documents, information and assistance necessary to allow the Carrier to comply with law or the requirements set out in this Agreement.
5.2 The Consignor warrants that;
(a) the goods are fit for carriage and are packed and restrained in a manner to which can withstand the ordinary risks of carriage having regard to the nature of the Goods and the requirements by law;
(b) the goods do not contain any dangerous or excluded goods, unless the Carrier has been provided written notice and accepted the carriage of these goods and all requirements of law and set forth in this Agreement under Clause 12 have been complied with.
(c) all details supplied by the Consignor are correct, including but not limited to the description of items, pallet space, quantity, weight, volume, quantity, value and measurements.
(d) the Carrier relies on the details supplied by the Consignor including but not limited to the description of items, pallet space, quantity, weight, volume, quantity, value and measurements, but does not admit their accuracy.
(e) there is a suitable and safe road for the Carrier and Carrier’s vehicles to the place from which the Goods are to be collected and delivered.
(f) there is safe and adequate loading facilities and equipment at any place from which the goods are to be collected and delivered.
5.3 The Consignor will indemnify the Carrier in respect to all losses, expenses, claims, actions and proceedings or any other liability suffered or incurred arising from the breach of a warranty given by the Consignor or any incorrect or wrongful declaration as to the purpose for which the Consignor requires the carriage, the proposed use of the Goods by the Consignor or the value of the goods.
5.4 To the extent of not limiting any clauses in this Agreement unless authorised expressly in writing and to the extent permitted by law, the Carrier does not accept any responsibility in tort or contract for the;
(a) loss of goods;
(b) damage of goods; or
(c) deterioration of goods, while in the possession of the Carrier or throughout carriage.
5.5 To the extent of not limiting any clauses in this Agreement unless authorised expressly in writing and to the extent permitted by law, the Carrier does not accept any responsibility in tort or contract for the failure to deliver or delay in delivery of the goods either in transit or storage or for any other reason.
5.6 The Consignor expressly states that they are the owner or an authorised agent of the owner for any and all goods that are to be placed in the care of the Carrier for carriage and/or storage.5.7 The Consignor accepts these terms of trade on their own behalf and any other persons on whose behalf they are acting.
6. General Conditions for the Carriage of Goods
6.1 The Carrier reserves the right to refuse the carriage of goods and the carriage of any class of goods at its discretion.
6.2 The Carrier will endeavour to ensure any particular method of handling and/or storing the goods and/or services stipulated by the Consignor be given priority. In the event the Carrier is unable to carry out the stipulated method, the Consignor hereby authorises the carriage of goods or services by an alternative method or methods.
6.3 The Consignor acknowledges that the Carrier is entitled to the fees and charges for the Goods and/or Services provided by the Carrier. Under no circumstances should the fees or charges be refunded, discounted or abated notwithstanding the damage of goods and/or services or wrongful delivery to an address other than the nominated address.
(a) Clause 6.3 is to be read in conjunction with Clause 17 (Liability) and Clause 14 (Carrier’s Charges) of this Agreement.
7. Delivery
7.1 The Consignor hereby authorises the delivery of the goods and/or services to the nominated address on the Agreement Documents for that purpose.
7.2 The Carrier will be deemed to have delivered the goods if, at that address a receipt or signed delivery docket from a person/s of the nominated address. This indemnifies the Carrier from liability of wrong delivery, notwithstanding a delivery to an address other than the nominated address on the Agreement Documents.
7.3 If the Carrier is unable to deposit the Goods at the nominated address, the Carrier will endeavour to ensure instructions obtained from the Consignor where reasonable and practical for the;
(a) delivery of goods to an alternative address; or
(b) storage of goods.
7.4 If the Carrier is unable to obtain alternative instructions from the Consignor where delivery of the Goods and/or Services is unfeasible, impractical or unachievable the Carrier may at its own discretion store the goods until instructions can be obtained from the Consignor.
(a) If the Goods are stored the Consignor will pay or indemnify the Carrier from all costs and expenses incurred with respect to such storage.
8. General Terms of Freight
8.1 The Carrier will endeavour to ensure any particular method of carriage stipulated by the Consignor, whether by air, sea, road or rail is given priority. In the event the Carrier is unable to provide their services by the stipulated method, the Consignor hereby authorises the carriage of goods or services by an alternative method or methods.
8.2 The Consignor authorises any deviation from the usual or stipulated route or manner of carriage of goods or services that may in the reasonable opinion of the Carrier, be considered desirable or necessary in the circumstances.
8.3 Where the goods and/or services of the Carrier are carried out by a sea going vessel the carriage is subject to the terms and conditions of such shipowner’s bill of landing in use at the time of shipment.
8.4 The Carrier is not obligated to carry out any inspection of the Goods, unless required by law and the Carrier at its own discretion may at any time inspect the goods for any purpose.
8.5 If the Carrier is required by law to inspect the Goods, the Carrier is not liable for any loss, damage or delay incurred as a result of any opening, unpacking, inspection or re-packing.
(a) The Consignor is liable to pay for any additional charges incurred by the inspection of the Goods as described in Clause 8.5 of this Agreement; and
(b) the Consignor hereby acknowledges that the Carrier is entitled to the payment for any additional charges incurred as described in Clause 8.5 (a) of this Agreement.
8.6 The Carrier at its own discretion may charge for freight by weight, measurement or value. The Carrier is entitled to, at any time re-weight, re-measure or re-evaluate the value of the freight. In the event of an increase in weight, measurement or value the Consignor is;(a) liable for any additional charges;(b) the Consignor hereby acknowledges that the Carrier is entitled to the payment for any additional charges incurred as described in Clause 8.6 of this Agreement.
9. Subcontractors
9.1 The Carrier, at its discretion, may subcontract on any terms the whole or part of the Carriage.
9.2 If the Carrier subcontracts any Carriage, the Carrier;(a) will not be relieved of any of its liabilities or obligations under this Agreement; and(b) will be liable to the Consignor for any act or omission of the Subcontractor as if such act or omission were that such act or omission of the Carrier.
9.3 Every exemption, limitation, condition or liberty contained in this Agreement and every right, exemption from liability, defence and immunity applicable to the Carrier or to which the Carrier is entitled under this Agreement will also 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 9.3 (a) and/or 9.3 (b).
9.4 For the purpose of clause 9.3 of this Agreement, the Carrier is or will be deemed to be acting as an agent or trustee on behalf of and for the benefit for all such persons and all such person will to this extent be or be deemed to be, parties to any agreement incorporating these terms.
10. Storage
10.1 Where the goods are stored by the Carrier at the request of the Consignor, the Consignor will provide:
(a) an address to which notices will be sent;
(b) the names of persons entitled to collect the Goods;
(c) an inventory of the goods to be stored.
10.2 The Carrier may remove the goods from the place of storage to another place of storage within the same city at its discretion and will provide written notice to the Consignor of such removal.
10.3 The Consignor must give 48 hours notice to the Carrier of its intention to remove the Goods from storage.
10.4 The Carrier will not be obliged to allow an inspection of the goods or to deliver up any of the goods in storage;
(a) to any person other than the Consignor or a person authorised in writing by the Consignor; or
(b) in circumstances where any amount is due and owing to the Carrier by the Consignor on any account whatsoever.
10.5 The Consignor will remove it’s goods from storage within 7 days of receiving a written notice from the Carrier.
10.6 Storage charges do not include removing, packing, unpacking, inspecting, stowing, restoring or delivery the Goods in storage. The Consignor may be liable for additional charge if any of the above, in reasonable circumstances, is to occur.
11. Uncrated Machinery
11.1 All uncrated machinery will be measured to a maximum height of 2.8 metres.
11.2 All uncrated machinery will be measured and charged as follows;
(a) where freight is charged by weight there shall be a minimum weight for each shipment of goods unless otherwise specified in writing. The minimum weight for each pallet of goods is to be calculated at a rate of 1,000 kilograms per 2 cubic metres; and(b) the minimum weight of goods not shipped by pallet are to be calculated at a rate of 333 kilograms per cubic metres.
11.3 The minimum weight stipulated in clause 11.2 (a) and 11.2 (b) shall be used accordingly unless the actualweight of the shipment exceeds the minimum weight.
11.4 Where freight is charged by measurement a minimum measurement for each shipment will be calculated atthe rate of 1 cubic metre for each 333 kilograms unless otherwise specified in writing.
11.5 The minimum measurement stipulated in clause 11.4 shall be used accordingly unless the actual measurement of the shipment exceeds the minimum measurement so calculated.
12. Dangerous Goods
12.1 If the Consignor’s goods for carriage are of a dangerous nature, the Consignor needs to provide in writing a full declaration of the nature of such goods and the Consignor must comply with all the requirements for the carriage of dangerous goods required by law.
12.2 Where the Consignor fails to disclose the dangerous goods or fails to provide the required declaration and/or information the Consignor will be liable for all loss and/or damage caused by the goods being in possession of the Carrier.
(a) In the event of an accident and/or loss the Consignor will be liable for all costs associated with the removal or disposal of the goods.
12.3 If the Carrier accepts the carriage of the dangerous goods the Consignor is responsible for the appropriate packing, labelling, unitising, class labelling, scheduling and identifying of the dangerous goods. The Consignor must disclose the hazardous nature of the goods for carriage or storage.(a) All steps set forth in clause 12.3 must be in compliance with the relevant law.
12.4 The Consignor is liable for any and all loss and/or damage for any default under Clause 12 of this Agreement.
12.5 If, in the opinion of the Carrier at its discretion and acting reasonably, the goods are liable to become of a dangerous, flammable or damaging nature and pose a threat of property damage or personal injury, the goodsmay at any time be disposed of, destroyed, abandoned or rendered harmless without compensation to the Consignor and without prejudice to the Carrier’s right to charge for the Carriage of the goods.
13. Lien
13.1 The Carrier accepts the goods subject to a general lien for all charges due or that may become due to the Carrier by the Consignor on any account whatsoever.
13.2 Without prejudice to the rights of the Consignor at law, the Carrier may, if the charges remain unpaid for more than 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, reasonably sees fit.(b) without providing notice or otherwise on the provision of the 14 days’ notice, open and sell any of the goods as the Carrier sees fit and apply the proceeds to discharge the lien and costs if sale.
13.3 The lien attached to the goods when the goods are accepted by the Carrier for carriage and as a security interest.
13.4 To the extent that the PPSA permits;
(a) sections 95, 96, 118, 121(4), 125, 127, 129(2), 129(3), 130, 130(1), 132(3)(d), 132(4), 134(2), 135, 136(3),(4) and (5), 137, 142 and 143 of the PPSA do not apply (unless the Consignor is otherwise notified in writing by the Carrier.
(b) any right to receive a notice or verification statement under section 157 of the PPSA is waived.
14. Carrier’s Charges
14.1 The Consignor agrees to pay all sums due and owing to the Carrier without any deduction, counterclaim or set-off, unless advised in writing by the Carrier.
14.2 The Carrier’s charges are due within the credit terms agreed to in writing by the Consignor. If the Carrier hasnot agreed to any credit terms, the charges are payable on delivery of the goods.
14.3 If the Consignor defaults in making any payment in accordance with this Agreement, then all amounts owned to the Carrier will immediately become due and payable.
14.4 In addition to any other charges contemplated under these conditions, the Consignor is liable to pay;
(a) any additional charges;
(b) interest on any outstanding amount;
(c) all storage charges and any costs associated with loading and/or unloading the goods;
(d) any fuel levy imposed, which may be adjusted at any time by the Carrier to reflect fuel prices;
(e) any additional costs arising from heavy or over dimensional transport;
(f) all changes under Law including but not limited to customs charges; and
(g) any other charges mentioned in this Agreement.
14.5 The Carrier may charge the Consignor, in accordance with it’s schedule of rates, in respect to any delay occurring other than from the default of the Carrier. Labour to load and unload is the responsibility and expense of the Consignor or consignee.
14.6 Where the Carrier stores goods for the Consignor, the Consignor is liable to pay for all the Carriers expenses and charges to comply with any Law, supply or pay for labour or machinery or both to load and unload goods, and pay any additional charges in regards to the goods being re-quantified, re-weighed or re-measured.
14.7 If the Consignor instructs the Carrier that the Carrier’s charges will be paid, either by the Consignee or another third party authorised by the Consignor and the payment remains outstanding 7 days from the date of delivery or attempted delivery of the goods, the Consignor must pay such charges.
15. Insurance
15.1 The Carrier is and must remain insured at all times as required by Law and any further insurance the Carrier sees fit.
15.2 The Consignor can, in writing, request the goods be insured at the Consignor’s expense. Specific insurance policies are to be priced per application through the Carriers insurance broker/provider. Otherwise, the Consignor is responsible for obtaining their own insurance if not otherwise specified.
15.3 If the Carrier acts as the Consignor’s agent in the procurement of insurance the following exclusives will apply;
(a) all claims resulting from wear, tear, moths, vermin, dampness, mildew or loss of market loss, damage or expenses caused by the delay inherent vice or nature, war and strikes, riot, civil commotions or malicious damage of the subject matter insured;
(b) gradual deterioration, rust and/or oxidisation unless due to or consequent upon fire, collision, overturning or other accidents of the conveyance; and(c) any other exclusions advised to the Carrier at the time the insurance policy is applied for.
15.3 Where the Consignor does not request the Carrier to act as it’s agent in the requisition of insurance, the Consignor must ensure that it obtains insurance to the standard required by Law.
15.4 Transit insurance rates and conditions will only be applied for on a case-by-case basis and at the Carrier’s discretion unless otherwise applied for by the Consignor in writing.
16. Warranty
16.1 In the circumstance the Consignor/Consumer is a Consumer as defined in the Competition and Consumer Act 2010 (CC Act), the Carrier ensures;(a) that all goods and/or services provided by the Carrier to the Consignor is free of defects;(b) all goods provided will be subject to the warranty provided by the original manufacturer of the goods.
16.2 The Consignor must comply with all recommendations provided by the Carrier for the packaging, transport and/or storage and maintenance of the goods. Any damages or defects that occur due to the Consignor’s failure to comply with the Carrier’s recommendations, the Consignor is solely responsible for.
16.3 All goods must be inspected by the Consignor upon delivery for any damages or defects, failure to do so or to point out to the Carrier any damages or defects will result in the Consignor’s acceptance of the goods they are delivered.
16.4 The warranty contained in Clause 16 of this Agreement is subject to the exclusions below, this warrant will notapply to:
(a) any goods and/or services that have been subjected to misuse, negligence, accidental damage or improper or inadequate maintenance or inadequate storage conditions;
(b) any goods and/or services that occur damage due to failure to comply with the Carrier’s recommendations and/or the recommendations of the original manufacturer of the goods;
(c) deterioration of the good/s due to normal use and exposure;
(d) damage or deterioration of the goods where the Consignor has failed to provide accurate and correct information and/or hindered the Carrier from carrying out the service; and
(e) any other exclusions mentioned in Clause 16 of this Agreement.
16.5 In the sole discretion of the Carrier any defects or damages to the goods and/or services, subject to clause 16.4 of this Agreement;(a) repair or replace the goods or part of them;(b) rectify the services or part of them;(c) wholly or partly compensate the Consignor by way of credit or reimbursement.
16.6 If the Consignor believes that the goods and/or services provided by the Carrier do not comply with the Carrier’s warranty under Clause 16 of this Agreement, the Consignor must make a claim to the Carrier;(a) within 48 hours of the receipt of the goods and/or services if for shortages; or(b) 7 days after the receipt of the goods and/or services if for defects.
16.7 Clause 16.5 is to be read in conjunction with and subject to Clause 16.6. All remedies under Clause 16 of this Agreement are subject to;
(a) If the Consignor does not comply with the terms set forth in clause 16.6, the Consignor is not entitled to the remedies in clause 16.5;
(b) the Consignor allowing the Carrier to inspect the goods and/or services delivered and investigate the Claim; and
(c) the interference of a third party with the goods and/or services.
16.8 If the Consignor does not comply with the terms and conditions in Clause 16 of this Agreement, the goods and/or services provided to the Consignor are deemed to comply with the Agreement and the Consignor is bound to this Agreement and all terms and conditions herein enclosed.(a) including, but not limited to the Carrier’s entitlement to the Consignor’s payment for the goods and/or services provided.
16.9 The Carrier does not warrant the goods not manufactured by the Carrier. All third party goods are subject to their own manufacturer and any claims for defective and/or damaged third party goods, not a result of the Carrier’s own negligence, will be passed on to the manufacturer or supplier of said third part goods.
16.10 The terms and conditions contained in clause 16 of this Agreement are subject to the Competition and Consumer Act 2010. If any of the provisions herein contradict relevant legislation that provision will, to the extent that it is invalid or unenforceable be severed from this agreement, without affecting the validity and enforceability of the remaining provisions.
17. Liability
17.1 The Carrier is not a common carrier and will accept no liability as such. All Goods and Services are carried, and all carriage is performed by the Carrier subject only to this Agreement.
17.2 Unless required by Law, where Clause 16 does not apply, the Competition and Consumer Act 2010 and the Fair Trading Act 1989 will not apply to this Agreement.
17.3 To the extent permitted by law, the Carrier will not be liable for any; loss, damage or mis delivery, delay in delivery or non-delivery of the goods.(a) Clause 17.3 does not apply in the circumstance where loss, damage or mis delivery, delay in delivery or non-delivery of the goods was caused by a proven negligence or wilful misconduct on part of the Carrier.
17.4 Notwithstanding any other provisions in this Agreement and to the extent permitted by law, the Carrier will not be liable for any loss of or damage to the goods;
(a) cause by a force majeure event;
(b) which consists of excluded goods;
(c) caused by the Carrier following the Consignor’s instructions;
(d) caused by the goods becoming infected or contaminated with any virus, bacteria, fungi, pathogen, disease, mould, vermin or like condition;
(e) caused by vibration, road conditions, weather or weather events of any kind whatsoever, including but not limited to stone, rain, hail or storm damage;
(f) caused by a decline in value or loss of value as a result of the goods becoming past their ‘use by’ or expiry date;
(g) caused by insufficiency or unsuitability of packing or preparation of the goods to withstand the ordinary incidents of Carriage;
(h)where such loss or damage comprises mechanical, electrical or electronic breakdown, derangement or malfunction of the goods;
(i) caused by the inherent vice or the nature of the goods;(j) caused by insufficiency or unsuitability of packing or preparation of the goods to withstand the ordinary incidents of Carriage;
(k) where such loss becomes apparent as a result of a stock count or stocktake; or(l) any other provision of these conditions, to the extend permitted by law, the Carrier will not be liable under any circumstances, for consequential loss.
17.5 Notwithstanding any of the provisions of this Agreement, to the extent permitted by law, the Carrier’s liability arising from any loss of goods or damage to goods or mis-delivery, delay in delivery or non-delivery is limited. It is of the Carriers sole discretion as to the remedy for any loss of goods or damage to goods or mis-delivery, delay in delivery or non-delivery.
(a) Clause 17.5 does not apply where the loss or damage to the goods or mis-delivery, delay in delivery or non-delivery is caused by the Carrier engaging in malicious conduct, deliberate or wilful conduct, fraud or criminal conduct.
17.6 Without limiting any other clause in this Agreement and to the extent the law allows, the Carrier;
(a) gives no guarantee, warranty, undertaking or representation in relation to the goods sold or services provided to the Consignor, about their quality. Fitness for any purpose, their compliance with any description or same;
(b) will not be liable for any default due to an act of god, war, terrorism, strike, lock out, industrial action, fire, spontaneous combustion fermentation, asbestos claims, flood drought, storm, pollution, radioactive contamination or other event that is beyond the reasonable control of the Carrier;
17.7 The Carrier’s liability in relation to the Carrier’s goods (including product contamination) is limited to the extent of Clause 16 of this agreement.
17.8 All information contained in the Carrier’s publications including but not limited to, catalogues, brochures, photographs and website, are subject to change and is not binding nor does it form part of this Agreement.
18. Guarantor’s
18.1 The obligations of the Guarantor’s:
(a) are as principle obligations and are not ancillary or collateral to any other obligation’
(b) may be enforced against the Guarantor without the Carrier being required to exhaust any remedy it may have against the Consignor or to enforce any security it may hold with respect to the Guaranteed Monies;
(c) the liability of the Guarantor is absolute and unconditional and is not affected by anything which might operate to exonerate it form any of its obligations.
18.2 Until the Guaranteed Monies and all other monies payable under this Deed have been irrevocably paid and discharged in full, the Guarantor may not:
(a) Share in any security or guarantee held or money received by the Consignor in respect of the Guaranteed Monies or stand in the place of the Consignor in respect of any such security or guarantee or right to receive money;
(b) Take any measures to enforce a right or claim against the Consignor in respect of any money paid to the Consignor under this Deed; or
(c) have or exercise any rights as surety in competition with the Carrier.
18.3 For the consideration mentioned in Clause 5 of this Agreement, the Guarantor unconditionally indemnifies the Consignor against any loss it may suffer as a result of:
(a) The Guaranteed Monies, whole or part, are not recoverable from the Consignor or having been recovered are repaid and restored;
(b) The Consignor fails to carry out its obligations under any agreement it has entered into with the Carrier; and
(c) The Guarantor shall pay to the Carrier on demand a sum equal to any loss in respect of which it indemnifies the Consignor under this clause, including any of the Guaranteed Monies (or any of the monies which, if recoverable would have formed part of the Guaranteed Monies) which are not or may not be recoverable.
18.4 If two or more persons are the Guarantor:
(a) References to the Guarantor are to apply to them separately and jointly;
(b) The promises by them in this Deed bind all of them together as well as bind each of them separately;
(c) The fact that one person is released from their obligations does not mean that any other person is also released.
19. Default
19.1 This Clause of the Agreement is to be read in conjunction with Clause 12.
19.2 Without prejudice to any other remedies the Carrier may have, if at any time the Consignor is in breach of any obligations under this Agreement, the Carrier may suspend or terminate the supply of the carriage to the Consignor.
19.3 If the Consignor is at any time in breach of this Agreement or Bankruptcy and/or Insolvency proceedings are brought against the Consignor the Carrier is entitled to;
(a) immediately recover possession of the goods from where they are stored by the Carrier, immediately and without notice, and the Consignor waives any right to a statutory or PPSA notice pertaining to clause 18.3 (a) of this Agreement;
(b) any current services the Carrier is undertaking for the Consignor can be suspended or cancelled until the Carrier receives payment of all monies due and owing;
(c) any monies owed or to be owed to the Carrier by the Consignor will immediately become due;
(d) vary the terms of payment or suspend or terminate any current contracts between the Carrier and Consignor;
(e) in addition to any other lien to which the Carrier is entitled, a general lien is imposed all money and property belonging to the Consignor in the Carrier’s possession to the extent of satisfying the debt owed to the Carrier by the Consignor; and
(f) may destroy or discard any property in its possession if it believes the properties sale will not satisfy the debt, this is pursuant to the terms set forth in Clause 13 of this Agreement.
19.4 The Consignor is not entitled to any compensation for any action taken by the Carrier in Clause 18 of this Agreement.
19.5 The Carrier is entitled to be indemnified by the Consignor for costs incurred in respect to the recovery, handling, sale, re-sale of any property and including but not limited to, debt collection agency fees and solicitor fees. Any additional amounts left due and owing upon the sale or re-sale of the Consignor’s property will immediately become due and owing to the Carrier by the Consignor.(a) The Carrier will produce a certificate showing the total amount that remains due and owing.
19.6 Where the Consignor sells the goods that was in the care of the Carrier before payment to the Carrier, the Carrier is entitled to the proceeds of that sale and said proceeds should be held in trust for the Carrier.(a) the disposal of goods by the Consignor before payment to the Carrier is done so with the Consignor as the Carriers the fiduciary agent.
19.7 By signing this Agreement, the Consignor appoints the Carrier and its directors, jointly and singularly as its attorney for the purpose of enacting Clause 18 of this Agreement.
20. Notification of Internal Claim
20.1 Notwithstanding any other provision of these terms and conditions, to the extent permitted by law, the Carrier will be discharged from all liability whatsoever in respect to the provision of goods and/or services to the Consignor unless written notice has been provided in accordance with these terms and conditions and the relevant legislation;
(a) In the case of shortages or lost goods, an internal claim must be brought within 48 hours of the receipt of the goods and/or services; and
(b) 7 days after the receipt of the goods and/or services if for defects or damage.
20.2 The Consignor acknowledges that the purpose of clause 19 is to allow the Carrier an opportunity to promptly investigate the cause of any loss or damage. Clause 19 will not apply if the Consignor has a reasonable excuse for its failure to give written notice by that clause.
20.3 Clause 19 of this agreement is to be read in conjunction with and subject to all other provisions of this Agreement. Any inconsistencies will be struck at the sole discretion of the Carrier.
21. Claim at Law
21.1 This Agreement is subject to all relevant Qld legislation. As such, any disputes as to the provision of goods and/or services that have not or cannot be resolved internally, can and will be brought to be resolved by the Queensland Courts.
