CONDITIONS OF WAREHOUSES
1. The proprietors do not warrant or admit the accuracy of any of the matters contained in the receipt under the heading “Product”, nor the accuracy of any weights, measurements, qualities, quantities, gauges, strengths or values endorsed on the receipt.
2. The goods referred to shall be entirely at the risk of the person or persons to whose order or in whose name or names the goods are from time to time lying and the proprietors will not be liable to any person for any loss of or damage to the goods or part thereof however caused by or arising from any negligence of the proprietors or of their servants or agents or otherwise and without prejudice to the generality of the foregoing the proprietors will not be liable for any loss or damage arising from act of god, enemies of the realm, civil commotion, burglary, warehouse breaking, larceny, theft, pillage, strikes, fire (however caused), explosion, water, lighting, rain, tempest, earthquake, flooding (whether external or internal), moth, damp, heat, sweat, mould, mildew, decay, deterioration, vermin, rats, mice, insects, leakage, inherit vice in any goods (whether the goods included in this receipt or other goods of the same or any other person), breakage , insufficient or inefficient packing. Nothing herein shall constitute the proprietors as insurers of the goods herein referred to.
3. The goods are accepted and held subject to a general lien by the proprietors for all debts due or which may hereafter become due to the proprietors on any account by the person or persons to whose order or in whose name or names the goods are from essay proofread service time to time being held. This right is additional to the rights conferred by the Warehousemen’s Liens Act 1958.
4. Upon notice in writing being given by or on behalf of the proprietors to the person or persons to whose order or in whose name the goods are at any time being held requiring such person or persons to remove such goods or any part of them the person or persons to who such notice has been given must within one month from the date of giving such notice pay any charges which the lien of the proprietors extends and remove and take away such goods or part thereof. Such notice may be given by sending the same through the post to or by leaving the same for the person or persons to whom it is addressed at his or their last known place of business. If upon the expiration of one month from the giving of such notice the person or persons to whom it is addressed has or have failed to pay such charges as aforesaid and to remove the goods or part thereof referred to in the notice, the proprietors may remove such goods or part thereof and store them in such place and in such manner as they think proper and at the risk of expense to the person or persons to whom such notice is addressed.
5. The person or persons by whom or on whose behalf the goods are deposited hereby warrants that he has full power and authority to deal with such goods to indemnify the proprietors against any adverse claim by any other person or persons in respect of such goods.
6. If the rent or charges on the above goods or part thereof shall be in arrears and unpaid for three months the proprietors may give seven days notice in writing to the person or persons in whose name or names or to whose order the goods are being held requiring such person or persons to pay the rent or charges in arrears and unpaid. Such notice may be given in like manner as is provided in Clause 4 hereof. If upon the expiration of seven days from the giving of such notice the person or persons to whom it is addressed has or have failed to pay such rent or charges, the proprietors, their servants or agents may open any package and may sell such goods or any part thereof and the proprietors shall not be liable to any person for any loss or damage thereby caused.
7. The proprietors accept no responsibility for the insurance of the goods referred to herein.
8. In these conditions, the word “proprietors” means Symons & Clark Transport Pty Ltd ACN 007 972 438.
CONDITIONS OF TRANSPORT
1. In these conditions:
“The Carrier” means Symons & Clark Transport Pty Ltd and its Subsidiary and includes any sub-contractors servants and/or agents. “Goods” mean all wares merchandise plant machinery and articles of every description and includes any crates, cases or packages and the contents of whatsoever and “Owner” when used in relation to goods includes the agent of the Owner and also any consignor shipper or agent for the sale or custody of the goods and every other person entitled to make any claim in respect of the goods.
2. The Carrier is not a common carrier and does not accept the obligations or liability of common carriers. The Carrier may refuse the handling, lifting and/or carriage of goods for any person, the handling, lifting and or carriage of any class of goods, and will not handle, lift and/or carry goods at all except only upon the terms and conditions herein stated.
3. All goods are handled, lifted and/or carried entirely at Owner’s risk. The Carrier shall not be liable for any loss or damage of whatsoever kind however occasioned at any time and whether caused by any acts defaults or negligence of the Carrier or otherwise howsoever.
4. The Carrier shall have liberty to arrange with any other person or company to undertake the handling, lifting and/or carriage of the goods and such person or company and his or its servants shall be entitled to the benefit of these Conditions to the same extent as the Carrier.
5. Goods of a noxious inflammable hazardous dangerous or explosive nature shall not be tendered to the Carrier without prior full disclosure of the nature of the goods any may be handled, lifted and/or carried only by special arrangement.
6. Where the Owner has declared the weight of the goods and the Carrier had relied upon such declared weight then the Owner shall be responsible for all extra cost and risk incurred by the Carrier and shall be liable for any loss or damage occasioned either directly or indirectly to the Carrier by reason of the Carrier having relied upon, such declared weight.
7. The Owner will be and remains responsible to the Carrier for all its proper charges incurred in respect of the handling lifting or carriage of the goods.
8. Insurance of the goods will not be affected by the Carrier for the benefit of the Owner except upon the written instructions of the Owner and then only at the Owner’s expense and upon receipt of declaration of value a reasonable time prior to pick up.
9. Quoted charges make no allowance for waiting time and all extra cost arising from waiting time shall be an additional charge to the Owner.
10. Quoted charges are based upon prompt availability of the goods for loading and facility to make prompt delivery. A charge will be made by the Carrier in respect of any delay in excess of the one hour in loading or unloading occurring otherwise than by default of the Carrier such permissible delay period commencing upon the Carrier reporting for loading or unloading. Such charge will be the extra cost arising as a result of the excess delay.
11. Quoted charges are subject to vehicle and/or haulage equipment having clear access for manoeuvring into loading or unloading site positions, the ground surface must be firm and consolidated to withstand wheel loadings of the transporter and/or cranes – any site preparation costs required is to the Client’s account.
12. Where a vehicle is delayed by any cause beyond the control of the carrier or where the delay is caused by the Carrier obeying instructions given by Owner or his representative the cost of such delay shall be to the Owner’s account. Where a vehicle is bogged whilst obeying such instructions, the cost of recovering the vehicle from the bog shall also be to the client’s account. Further, any damage to equipment or plant caused by the recovery shall be to the client’s account.
13. Unless otherwise stated cranes to load or unload are not included.
14. Should weights and dimensions exceed those stipulated on this quotation the Carrie may at its option revoke the quotation.
15. Quotation also subject to permits being issued by the relevant authorities.
16. If services not provided within 60 days of date of quotation, service will be subject to any cost increases as directed by the South Australian Road Transport Association.
17. Trading terms 14 days nett.
18. Nothing in these conditions shall be read or construed or take effect so as to exclude restrict, modify, alter or void.
(i) the application of all or any of the provisions of the Competition and Consumer Act 2010 which may be applicable or of the provisions of any other Act or ordinance of a State or Territory of the Commonwealth of Australia or of the Commonwealth of Australia which may be applicable and exclusion, restriction or modification of which may be void or unenforceable;
(ii) the exercise of a right conferred by such a provision; or
(iii) any liability of the carrier for a breach of a condition or warranty implied by such a provision.
19. To the extent permitted by the Competition and Consumer Act 2010 the carrier hereby limits its liability for a breach of a condition or warranty (if any) implied by that Act at the option of the carrier to either :-
(i) the supply of the services supplied hereunder again ; or
(ii) the payment of the cost of having the services supplied hereunder supplied again.
CONDITIONS OF CONTAINER HANDOVER
1.a) In these conditions the expressions followed shall have the meaning set out below:
1) The Owner” means and includes the owner of the container and its officers, servants agents and sub-agents, bailees and lessees.
2) The Company” means Symons & Clark Transport Pty. Ltd. A.C.N. 007 972 438 carrying on business in its own name and under any business name and its officers, servants, agents and sub-contractors.
3) The Container” means and includes the container and attachments thereto (if any) described on the front hereof and any pallet or pallets or other items of equipment received by the Bailee and/or the Company.
4) The Bailee” means and includes the Company’s customer, the consignor or the consignee, or any of their servants or agents, as the case may be.
1.b) These terms and conditions shall be construed and take effect in accordance with the laws of the Commonwealth of Australia wherein they are signed by the Company and any proceedings against the Company shall be brought in the State of South Australia and not elsewhere within twelve (12) months from the date they are so signed.
2. Where the Company receives delivery of the Container from the Owner and/or delivers the Container to the Bailee:
(a) The Company warrants to the owner that he is duly authorised by the Bailee to sign this agreement for and on behalf of the Bailee and to receive the Container and the contents thereof (if any) for and on behalf of the Bailee.
(b) The signature of the Company on the front hereof shall be and shall be deemed to be an acknowledgment by the Bailee of the Company on behalf of the Bailee of the Container which is delivered to the Company by way of loan from the Owner to the Bailee subject to the conditions hereof.
(c) The Bailee shall comply with all statues, regulations, ordinances and by laws and all lawful requirements of the Owner relating to the use and transportation of the Container.
(d) The Bailee acknowledges that at the date specified on the front hereof the Container is not damaged or defective and is in good order and conditions in all respects unless otherwise stated on the front hereof.
(e) The Bailee shall not part with possession of the Container nor damage or deface the Container in any way and shall ensure that the Container is cleaned prior to its return to the Owner and shall be liable to the Owner for all costs and expenses incurred by the Owner in cleaning the Container.
(f) Subject to Clauses 7 and 9, no warranty is given by the Owner to the Company or the Bailee, nor by the Company to the Bailee, as to the suitability of the Container for the purpose required by the Bailee.
(g) Subject to Clause 7 and 9, the Container and the contents thereof (if any) shall be entirely at the risk of the Bailee from the time of receipt of the Container by the Company and/or Bailee, whichever is the earlier, until the return of the Container to the Owner, and the Company shall not be liable to any person (including the Owner and the Bailee) for any loss of life, personal injuries, damage to property or any other loss howsoever caused (including arising from any negligence or beech of contract by the Company) or for any defect in or damage to the Container or the otherwise or for any consequential loss arising therefrom, and the Bailee shall indemnify and keep indemnified the Company against all claims, demands, liabilities, suits, actions, costs and expenses of every description whatsoever suffered by the Company arising out of such loss, personal injuries, damage to property, defect or other loss whatsoever.
3 In all circumstances, and subject to Clauses 7 and 9:-
(a) The Bailee shall be liable for any lose of or damage to the Container occurring whilst in the possession or under the care or control of the Company or the Bailee (or both) howsoever caused (including arising from any negligence or breach of contract by the Company), and shall notify the Owner of any such loss or damage not later than the date of return of the Container nominated by the Owner.
(b) If the Company or the Bailee fails to return the Container to the Owner by the date of return or such date as may be agreed by the Owner (including where such failure is caused by the negligence of or breach of contract by the Company) the Bailee shall be liable to the Owner for the full replacement value of the Container as at the date of return and shall indemnify the Company against any claims, demands, liabilities, suits, actions, proceedings, costs and expenses of every description whatsoever made against or incurred by the Company arising out of such failure.
(c) If the Container is returned to the Owner in a damaged or defective state or condition (whether or not caused by the negligence of or breach of contract by the Company) the Bailee shall be liable for the costs of repair or if the Container is unable to repaired the costs of replacement and any other loss or damage including the cost of hire of any replacement Container incurred by the Owner and for loss of use of the Container in an amount equivalent to the Owner’s hiring charges in force from time as the Container is undergoing repairs (but the Bailee’s liability shall not extend to any damage or defect which existed prior to the Owner delivering the Container to the Company or the Bailee).
(d) The Container and the contents thereof (if any), and any documents relating thereto, are accepted subjected to a general lien for all charges now due or which may hereafter become due to the Company on any account whether in respect of the Container or its contents or in respect of any other goods for which the Company provides a service of whatever nature. If the lien is not satisfied and or the Container is not collected, the Company may at its option and without any notice upon the expiration of one (1) month sell the Container and the contents thereof (if any) upon such terms as it shall think fit and apply the proceeds in or towards the discharge of the lien and cost of sale without being liable to any person for any loss or damage thereby caused. This right is additional to any right or rights conferred upon the Company by statue or general law.
4. In respect of any clause herein which excludes or in any way limits the liability of the Company or contains an indemnity in favour of the Company, the Company in addition to acting for itself is acting as agent of and trustee for each of its servants, agents and sub-contractors so that its servants, agents and sub-contractors are party to this contract so far as the said clause or clauses containing exclusions, limitations of liability or indemnities are concerned and if in so far as may be necessary to give effect to this clause the Company shall hold the benefit of theses clauses for its servants, agents and sub-contractors.
5. All the rights, immunities, indemnities and limitations of liability in theses conditions shall continue to have their full force and effect in all circumstances and notwithstanding any breach of contract or of any conditions hereof by the Company.
6. The Bailee authorises the Company (if the Company should think fit to do so) to contact either in the Company’s name as principal or as agent for the Bailee in relation to the Container and to give receipt for the Container wether subject top any terms and conditions or not and any such contract will be made upon the terms and subject to the conditions of any equipment hand-over agreement, interchange receipt or any other document as the case may require. Where the Company either contracts in the Company’s name as principal or as agent for the Bailee as referred to in this Clause, the Bailee indemnifies and shall keep indemnified the Company against all claims and liabilities of whatsoever nature arising out of or in connection with the Company so contracting.
7. (7.1) Subject to clause 7.5, the Company is not liable, to the Bailee whether in Contract, Tort (including
negligence), breach of statutory duty, or otherwise, for any indirect, consequential or special loss or damage,
even if the company has been advised of the possibility of such loss or damage, or for any loss of profits, loss
of sales, loss of business or agreements, loss of goodwill or loss of staff wasted time.
(7.2) Subject to clause 7.5, the bailee waives, releases and agrees (and will procure its officers, employees, agents, representatives and contractors waive, release and agree) to defend, indemnify and hold harmless the Company, its affiliates and related companies and each of their respective officers, directors, employees, shareholders, agents, representatives, insurance carriers, successors, licencees, and assigns, and each of them, from any liability, claims, rights of subrogation, demands, actions, causes of action, losses, costs, damages and expenses (collectively, Claims) arising out of or based upon:
7.2.1 the Bailee’s breach of the (“the Conditions of container handover”) terms of these conditiond;
7.2.2 subrogation claims by the Bailee’s insurers;
7.2.3 Claims arising from any loss or damage at any time relating to the provision of services by the company;
7.2.4 Claims arising as a result of injury to or destruction of tangible property or any other injury or damage
resulting from or arising out of the services, in each case, other than claims arising out of or based upon the gross negligence or wilful misconduct of the Company.
(7.3) To the fullest extent permitted by applicable law, the Company excludes all implied representations,
guarantees, warranties, terms and conditions of any kind whatsoever (whether implied by common law, statute
or otherwise).
(7.4) If the Competition and Consumer Act 2010 or any other legislation implies a guarantee, condition or
warranty into these conditions in respect of Goods or Services and the Company’s liability for breach of that
guarantee, condition or warranty may not be excluded but may be limited, clauses 7.1, 7.2 and 7.3 do not apply to that liability and instead the Company’s liability for any breach of that guarantee, condition or warranty is limited to the Company doing one or more of the following (at its election):
7.4.1 In the case of goods:
7.4.1.1 the replacement of the goods, or the supply of equivalent goods; or
7.4.1.2 the repair of the goods; or
7.4.1.3 the payment of the costs of replacing the goods or acquiring equivalent goods; or
7.4.1.4 the payment of the cost of having the goods repaired.
7.4.2 In the case of Services:
7.4.2.1 to supplying of the Services again; or
7.4.2.2 paying the costs of supplying the Services.
(7.5) Nothing in these Conditions is intended to exclude, restrict or modify the application, rights liabilities that the Owner, Company or Bailee may have under the Competition and Consumer Act 2010 or any other legislation which may not be excluded, restricted or modified by agreement.
8. The Company’s trading terms are net thirty (30) days from date of invoice, unless otherwise agreed in writing. The Company’s charges are quoted in Australian dollars ($A) and all payments of the Company’s charges must be made in Australian dollars ($A). If any charges due to the Company hereunder are outstanding for a period of more than seven (7) days the Company may charge interest on the outstanding amount at a rate which is not greater than two (2) per cent above the prevailing prime overdraft rate as quoted by Westpac Banking Corporation.